IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE FIFTEENTH DAY OF JULY TWO THOUSAND AND ELEVEN Present HON’BLE SRI JUSTICE B. CHANDRA KUMAR SECOND APPEAL No.906 of 1997 Between: Kottapalli Malleswararao .. Appellant AND Pulugu Venkataramana & another .. Respondents The Court made the following: HON’BLE SRI JUSTICE B. CHANDRA KUMAR SECOND APPEAL No.906 of 1997 JUDGMENT: This appeal is directed against the judgment and decree passed in A.S.No.83 of 1994, by the District Judge, Srikakulam and cross appeal in A.S.No.83 of 1994, by the Principal Subordinate Judge, Srikakulam, dated 01.09.1997, whereunder and whereby, the appeal was partly allowed by granting mandatory injunction to the plaintiff while dismissing O.S.No.304 of 1989, on the file of the II Additional District Munsif, Srikakulam, for the relief of permanent injunction and the cross appeal in A.S.No.83 of 1994 was dismissed. 2. The appellant herein is the defendant and the respondent herein is the plaintiff in the Appeal Suit and the Original Suit. For the sake of convenience, the parties will be referred to as they are arrayed before the trial Court. 3. The specific case of the plaintiff is as follows: The plaintiff filed suit for permanent injunction restraining the defendant from interfering with the construction by the plaintiff in the suit schedule site shown as XYBG(b) and also restraining him from the free passage in the common pathway of the plaintiff in the site shown as EJMR in the plaint plan and for costs of the suit. The plaintiff’s case is that the plaintiff and defendant had jointly purchased an extent of 10 cents site under a registered Sale Deed, dated 06.10.1978, from one Uriti Mohan Rao for the construction of the house which is shown as ABCD in the plaint plan. Subsequently, they partitioned the said site into two equal shares under a registered Partition Deed, dated 20.08.1983. In that partition, the southern half share was allotted to the defendant. Subsequently, as the said partition was not convenient for both of them for the construction of their houses as per the partition, they entered into an agreement, dated 20.08.1983, before the elders and accordingly, on the basis of the agreement, the plaintiff constructed a house in the site allotted to him shown in the plaint plan as IFGH after obtaining necessary permission from the Srikakulam municipality. It is also alleged that the defendant, being powerful in the village, was threatening the plaintiff and obstructing him in the construction of his bathroom, lavatory, staircase in his site. He was also obstructing the plaintiff from using the common pathway shown in the plaint plan as EJMR. During the pendency of the suit, the defendant constructed a lavatory tank and bathroom and cement pial in the joint pathway shown as EJMR. The plaintiff sought relief of permanent injunction restraining the defendant from interfering with his construction and also sought mandatory injunction to remove the constructions made by the defendant. 4. The defendant resisted the suit by filing written statement. His specific case is that north-eastern portion of the plaint plan ABCD do not belong to either plaintiff or defendant and that was subsequently occupied by the plaintiff and defendant. His further case is that it is specifically mentioned in the agreement, dated 20.08.1983, that if anybody raises any objection regarding occupation of the north-eastern portion of the plaint plan ABCD, then provision is made in the agreement that the defendant should be given 2 feet width space from north to south, from west to east upto the Collector’s bungalow road out of the site allotted to the plaintiff. Similarly, the plaintiff is provided right of 3 feet width way over the site of the defendant as shown in LMIK shown in the defendant’s plan to go to the joint lane and from there to his back side house. The plaintiff is allowed to construct latrine in the site allotted to the defendant for his passage as shown as GJKH in the defendant’s plan. If the latrine is constructed, then the defendant will not have any right of way to the Collector’s bungalow road. 5. The defendant also filed additional written statement inter alia contending that he constructed latrine, bathroom and cement pial in the plaint EJMR site during 1983 itself. When the defendant had constructed his house, the plaintiff never obstructed or raised any objection and that, therefore, now the plaintiff cannot raise any objection. 6. Basing on the averments made by the parties, the trial Court framed the following issues and additional issue: ISSUES: “1. Whether the agreement dated 20.8.83 is tentative and valid and acted upon? 2. Whether the plaintiff is entitled to permanent injunction to XYBG site of plaint plan? 3. Whether the plaintiff is entitled to permanent injunction for the common path way shown as EJMR in plaint plan? 4. To what relief?” ADDITIONAL ISSUE: “1. Whether the plaintiff is entitled for mandatory injunction as prayed for?” 7. On behalf of the plaintiff, the plaintiff himself was examined as P.W.1, P.Ws.2 and 3 were examined and Exs.A-1 to A-3 were marked. On behalf of the defendant, the defendant himself was examined as D.W.1 and one Gorla Narayanaswamy was examined as D.W.2 and Exs.B-1 to B-6 were marked. 8. The trial Court, on appreciation of the oral or documentary evidence on record, came to the conclusion that the plaintiff failed to obstruct when the defendant constructed bathroom and latrine in the joint passage and there is no corroborating evidence and, accordingly, dismissed the suit. Aggrieved by the same, the plaintiff filed an appeal before the learned Principal Subordinate Judge, Srikakulam. By the judgment, dated 01.09.1997, in A.S.No.83 of 1994, on re-appreciation of the entire evidence, the Appellate Court came to the conclusion that when the property was purchased by the plaintiff and defendant jointly, it was the vacant site and that there is no mention about the existence of the house either in Ex.B-5-Agreement, dated 20.08.1983, or in Ex.A-3-Partition Deed, dated 20.08.1983, and that the plaintiff has proved its case. The Appellate Court also took into consideration that there was no mention about the bathroom, lavatory tank and cement pial in Ex.B-4-Plan and also in Ex.A-2-Plaint plan. Admittedly, O.S.No.304 of 1989 was filed on 24.08.1989. When the said fact was brought to the notice of the Court, the defendant did not file any objections. The Appellate Court, on proper appreciation of the evidence, came to the conclusion that the defendant has made illegal constructions and, therefore, those constructions are liable to be demolished. Challenging the same, the present appeal has been filed. 9. According to Sri M.S.R. Subrahmanyam, learned counsel for the appellant, the only substantial question of law that arises for consideration is whether the Appellate Court is right in granting mandatory injunction when damages could have been adequately remedied in the circumstances of the case. 10. Sri M.S.R. Subrahmanyam, learned counsel for the appellant has also taken me through the entire record and the findings of the trial Court. The trial Court seems to be observed that there is no evidence adduced by the plaintiff to show when actually constructions were made by the defendant and that the plaintiff did not issue any legal notice to the defendant objecting for the constructions made by him. 11. Sri A. Rama Rao, learned counsel for the respondent submitted that a vacant site was purchased by the plaintiff and defendant jointly and the plaintiff started construction and when the defendant was raising objections obstructing his construction, then the plaintiff filed the suit seeking permanent injunction and in the meanwhile, when the defendant high-handedly encroached into the pathway and constructed bathroom, lavatory, etc., then the plaintiff filed an application seeking amendment of the plaint and the said application was allowed and, accordingly, the plaintiff got amended the plaint and prayer column by adding the relief of mandatory injunction as per orders in I.A.No.386 of 1993, dated 26.07.1993. 11. I have considered the above rival contentions and perused the entire evidence. 12. Admittedly, the defendant has not taken any specific stand in his original written statement about the constructions in dispute. Admittedly, it is the plaintiff who filed I.A.No.386 of 1993 and sought amendment of his plaint and also sought the relief of mandatory injunction. As discussed by the Appellate Court and as seen from the recitals of the documents relied by the parties, it is clear that originally, vacant site was purchased and there were no disputed constructions as on the date of filing of the suit. The Appellate Court, having considered the evidence on record, gave a finding that the defendant raised disputed constructions during the pendency of the suit. There is no other material to show that the findings of the Appellate Court are perverse and not based on evidence. When constructions have been made in the common pathway causing obstruction, there is no other alternative way for the plaintiff to approach this Court. 13. I am of the view that alternative relief of granting damages in such circumstances may not arise, particularly when no such pleading was taken by the defendant either before the trial Court or before the Appellate Court. I do not see any reason to interfere with the findings of the Appellate Court. No substantial question of law arises in this Second Appeal. 14. Accordingly, the Second Appeal is dismissed. However, in the circumstances, no costs. ____________________ B. CHANDRA KUMAR, J Date: 15th July, 2011 KL HON’BLE SRI JUSTICE B. CHANDRA KUMAR SECOND APPEAL No.906 of 1997 Date: 15th July, 2011 KL