THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY SECOND APPEAL No.349 of 2010 JUDGMENT: The appellants filed O.S.No.166 of 1998 in the Court of Junior Civil Judge, Koilkuntla for the relief of perpetual injunction. It was pleaded that the property marked as ‘X’ in the suit plan had accrued to them under a Will in the year 1994 after the death of the testator. The respondents are said to be the owners of the land shown as ‘Y’ in the plaint plan. The grievance of The appellants was that the respondents are threatening to take their carts and bullocks from the land marked as ‘X’ though different extent of Ac.0.02 cents was sold to them for the excusive purpose of having access to their land, marked as ‘Y’ in the plait plan. 2. The respondents filed written statement opposing the suit. They pleaded that the rastha which was shown in the plaint plan was being used by them and other neighbouring land owners from the time immemorial. The trial court dismissed the suit through its Judgment, dated 14.06.2004. The appellants filed A.S.No.12 of 2004 in the Court of Senior Civil Judge, Allagadda. The appeal was dismissed on 23.02.2010. Hence, this second appeal. 3. Smt.V.Hima Bindu, learned counsel for appellants submits that the respondents do not have any right or entitlement to take their carts and cattle from the land of appellants. She contends that the trial Court did not discuss the evidence properly and even though the lower appellate Court expressed its dissatisfaction on the manner in which the trial Court appreciated the evidence, it has dismissed the appeal. 4. The suit filed by the appellants was the one for injunction simplicitor. It was in relation to the alleged attempt of the respondents to use the land in survey No.26 of Sowdardinne village, Koilkuntla Sub-District, Kurnool District, admeasuring Ac.1.87 cents, as an access to the land of the respondents in survey Nos.25, 27 and 28. The respondents, on the other hand, pleaded that they were using the rastha from time immemorial. 5. The trial Court framed only one issue viz., Whether the appellants are entitled for the relief of permanent injunction? On behalf of appellants, P.Ws.1 to 3 were examined and exhibits A.1 to A.8 were filed. On behalf of respondents, D.Ws1 and 2 were examined and exhibit B.1 a plan was filed. The suit was dismissed. The appellants filed A.S.No.12 of 2004 in the Court of the Senior Civil Judge, Allagadda. 6. The lower appellate Court framed the following points for its consideration. 1. Whether the cart track to reach ‘Y’ marked land of DW.1 in Sy.No.27 of Sowdardinne village from the southern side road in through the rastha shown in Ex.A.1 plan filed by the plaintiffs, not through the RRR rastha shown in Ex.B.1 plan filed by the defendant? 2. Whether the appellants/plaintiffs are entitled to seek a perpetual injunction against the respondents, restraining them from passing through a rastha other than the rastha shown in EX.A.1 plan? 3. Whether the impugned Judgment and decree, dated 14.06.2004 in O.S.no.166/98 passed by the learned Junior Civil Judge, Koilakntla suffers from any infirmities, or irregularities or illegalities and calls for any interference by this Court? 4. To what relief? 7. The appeal was dismissed on 23.02.2010. 8. The respondents did not dispute the ownership of the appellants over the land in survey No.26. The attempt of the appellants was to prevent the respondents from taking the cart and cattle from the land in survey No.26. Had it been an attempt for the first time, the appellants would certainly have been granted the relief. It was elicited through various witnesses that the rastha in question was being used by the respondents from very long time. As a matter of fact, the appellants became the owners of the land only in the year 1994 i.e., four years prior to the filing of the suit. In case, the appellants wanted to establish that the respondents do not have any right to pass through their land in survey No.26, they ought to have filed a suit for declaration and consequential injunction. An existing practice, either legal or otherwise, cannot be stopped by claiming the relief of perpetual injunction. The trial court and lower appellate court have discussed the matter from the correct perception and no substantial question of law arise for consideration. 9. Hence, the Second Appeal is dismissed, leaving it open to the appellants to seek the remedy of declaration of their rights vis-a- vis the respondents, if they are so advised. There shall be no order as to costs. ________________________ L.NARASIMHA REDDY, J 20th January, 2011 VJL/KTL