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Tuesday, December 19, 2023

suit for mandatory injunction - Once the Court comes to a conclusion that there is an unauthorized construction covering or encroaching the portion of the road, the Court has got ample power to restore the public road for its public utility and usage by ordering mandatory injunction if so warranted - 2023:APHC:39734

 suit for mandatory injunction - Once the Court comes to a conclusion that there is an unauthorized construction covering or encroaching the portion of the road, the Court has got ample power to restore the public road for its public utility and usage by ordering mandatory injunction if so warranted - 2023:APHC:39734

IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

THE HON'BLE SRI JUSTICE B KRISHNA MOHAN

SECOND APPEAL No.390 of 2023

Thamadapu Suryanarayana,

S/o.Appala Swamy, Hindu, Male, age

49 years, Business, R/o.Pentapadu

Village, Pentapadu Mandal, West

Godavari District and another.

 …. Appellants

Versus

S.T.V. Rajagopalacharyulu, (Plaintiff

No.1) S/o.S.T.V. Srinivasacharyulu,

Hindu, Male, age 52 years, Lecturer,

R/o.K.B.J. College, Bhimavaram and

13 others.

(R4 to R14/D4 to D14 are set-exparte

in O.S.No.64/99 and R5 died

pendentilite the appeal and no steps

were taken and case against R5

abated. Hence, the Hon’ble Court may

be pleased to dispense with the notices

of R4 to R14 as no relief is claimed

against them in this appeal)

….Respondents

JUDGMENT:

Heard the learned counsel for the appellants. None

appears for the respondents.

2. This Second Appeal is filed against the judgment and

decree passed in A.S.No.50 of 2003, on the file of Senior Civil

Judge, Tadepalligudem, dated 28.12.2022, confirming the

judgment and decree in O.S.No.64 of 1999 on the file of 

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Principal Junior Civil Judge, Tadepalligudem, dated

24.09.2003.

3. The appellants herein are the defendant Nos.2 and 3 in

the suit before the trial Court and the appellants in the lower

appellate Court. The respondent Nos.1 and 2 herein initiated

action in O.S.No.64 of 1999 on the file of Principal Junior

Civil Judge, Tadepalligudem, seeking for grant of mandatory

injunction directing the defendant Nos.1 to 3 therein to

remove all the constructions made and to be made in the

northern road shown as A B C D in the plaint plan, to restore

the road and road margins in their normal width of 40 feet

and grant of permanent injunction. The plaint schedule was

shown as D.No.3/131 in an extent of 1450 Sq. Yards site

with an up-stair building, old terraced out-house within the

boundaries as mentioned in the plaint schedule. The

scheduled plan showing the road and construction of the

shops and the constructions of A B C D is attached to the

said plaint plan.

4. The trial Court upon consideration of the matter on

merits held that, the suit filed by the plaintiffs, particularly,

the 1st plaintiff is hereby decreed and the defendant Nos.1 to

3 are directed to remove the constructions made by the 3rd

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defendant in the northern road shown as A B C D of the

plaint plan opposite to the house of the 1st plaintiff within a

period of 45 days from the date of receipt of the judgment

and if they failed to do so, the 1st plaintiff is at liberty to get it

done through the process of the Court and recover its entire

expenses from the defendant Nos.1 and 3. Before coming to

such conclusion, the trial Court appreciated the evidence on

record and observed that, recital of the document Ex.A-1 is

that the northern boundary for a part of the schedule

property is shown as Santha market Sthalam. By this, the

learned counsel for the defendant Nos.2 and 3 wants to

impress upon the Court that there is no clear recital in the

earliest document of 1938. But at the same time taking into

consideration the relevant material viz., the boundary recitals

shown in the document Ex.A-21 wherein it is so referred that

there is a Panchayat road on the northern side of the

property covered under the said document and the said

document relates to P.W.2, his brother and father. The

version of the Grampanchayat is also that, in all

preponderance of the probabilities that there is a

gramakantam site and there are some records or registers to

show the same. So as per the Ex.A-21, it may be inferred 

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that there must be some change in the usage of the earlier

sandy market area as public road. It was also observed that

the present disputed wet grinding machinery shed and rice

mill are within the road margin of the said area that situated

on the northern side of the schedule property. As per P.W.1

there are certain violations of Panchayat rules and

notifications while granting permission or giving licence to

the 3rd defendant for the construction of shed to run the wet

grinding business etc.,. Considering the various decisions of

the erstwhile High Court of Andhra Pradesh, the trial Court

held that the said wet grinding machine shed was

constructed in violation of the Rules and bye-laws of the

Panchayat Raj Act and the sanctioned plan and as such, the

3rd defendant is not entitled to seek for any equities.

5. The trial Court further observed that, no person can be

allowed to occupy a portion of the public road, a high way or

even a public path way and argue that even after such

encroachment there is sufficient place left for the public to

pass by. Even though, the said permission or licence was

given for doing business by the Gram-Panchayat, the

defendants are using the said shed for their residence also

where it is evident that they performed the marriage of their 

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daughter at that place. It came in evidence that, the

defendant Nos.2 and 3 have given on permanent lease of the

said site along with the owners of the rice mill that situated

to the East of the disputed shed. Thus, the trial Court found,

various discrepancies and variations in the stand of the

defendant Nos.1 to 3 from the pleadings to their evidence.

Thus, upon the said appreciation of the evidence, the trial

Court came to a conclusion that the entire width of 40 feet

area or site is that of a public road including its margin on

either side and drainages and the 1st defendant failed to

establish that the disputed site is that of a gram kantam site

by producing any cogent, convincing, satisfactory and oral

and documentary evidence except the sole testimony of

P.W.1. Aggrieved by the said judgment/decree of the trial

Court dated 24.09.2003, the defendant Nos.2 and

3/appellants herein preferred A.S.No.50 of 2003 on the file of

Senior Civil Judge, Tadepalligudem. By virtue of the

judgment/decree dated 28.12.2022, the said appeal was

dismissed, confirming the judgment of the trial Court while

accepting the reasoning and conclusion given by the trial

Court. Having unsuccessful before the Courts below, the

appellants filed this Second Appeal raising the ground that, 

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whether the suit for mandatory injunction without seeking

the relief of declaration to the effect that act of defendants

including the resolution of 1st defendant Gram Panchayat is

maintainable or not?

6. The learned counsel for the appellants canvassing this

ground as substantial question of law relied upon the

decision of the erstwhile High Court of Andhra Pradesh

reported in Kachana PAdmavathi and another Vs.

Proddatur Municipality rep. By the Commissioner and

others1.

7. The learned counsel for the appellants submits that,

the plaintiffs have to seek for declaration of title before alone

seeking the relief of mandatory injunction. In this case, no

such declaration was sought by the plaintiffs. But ignoring

the said legal requirement, the trail Court as well as the lower

appellate Court decreed the suit as prayed for by the plaintiff

No.1, while granting the mandatory injunction to remove the

structures for the purpose of restoration of the public road.

8. In the considered opinion of this Court and in the facts

and circumstances of the case, the plaintiff cannot seek any

declaration for grant of mandatory injunction with respect to


1

2007 (4) ALT 58 (S.B.)

7

the public road for its restoration and it would suffice to

establish that there is a public road and there is an

unauthorized construction by some of the defendants as

pleaded in the suit. Once the Court comes to a conclusion

that there is an unauthorized construction covering or

encroaching the portion of the road, the Court has got ample

power to restore the public road for its public utility and

usage by ordering mandatory injunction if so warranted.

9. As discussed above, there is no infirmity in the

judgment and decree of the Courts below to show any

indulgence in this Second Appeal as the ground raised by the

appellants does not form part of any substantial question of

law.

10. Accordingly, the Second Appeal is dismissed. Interim

order if any deemed to have been vacated. There shall be no

order as to costs.

As a sequel, Miscellaneous Petitions pending, if any,

shall stand closed.

_______________________________

JUSTICE B KRISHNA MOHAN

06.10.2023

PGT