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
