Whether declaration of title is necessary inrespect of public Roads for grantingMandatory injunction ? 2023:APHC:27415
suit for mandatory injunction on the margin of public Road - decreed - appeal also allowed - Held that requirment of declaration is not necessary in respect of public Road - and also avaiability of other access points not necessary to be considered whiling granting decree for mandatory injunction -. No person can be allowed to occupy a portion of a public road, a highway or even a public pathway, and argue that even after his encroachment there is sufficient space left for public to pass by. He cannot be the judge of the requirements of the public, nor can he decide for himself what extent must be left for public use and what extent must be occupied by him. At this rate, anybody will be free to occupy a portion of such public streets, highways and roads with the specious argument that there is still space left for public to pass by. Slowly these encroachments may become permanent. It is evident that such a course cannot be permitted.
IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
HON’BLE SRI JUSTICE R. RAGHUNANDAN RAO
SECOND APPEAL No.275 of 2023
SANABOINA SATYANARAYANA
Versus
CHERUKURI RAJESWARI
JUDGMENT:
The appellants are the defendants 6 to 9 in O.S.No.61
of 2012 on the file of Principal Junior Civil Judge, Palakol.
The 1st respondent is the plaintiff.
2. The 1st respondent had filed O.S.No.61 of 2012,
for mandatory injunction, for removal of the houses and other
structures constructed by the appellants herein on the road
margin and puntha in R.S.No.110/3 of Sangamcheruvu
Village adjoining the R & B road passing through
R.S.No.110/1 from Palakol to Myzarugunta. It is the case of
the 1st respondent that she had agricultural land in
R.S.No.112/2, 2-A and R.S.No.111/2C of Gorinthada Village
which is hamlet of Sangamcheruvu Village. The 1st
respondent contends that her access to the R & B road is
being affected by the constructions made by defendants 6 to
9. It is the further contention of 1st respondent that she had
approached the officials in the area, who are arrayed as
defendants 1 to 5 in the suit, for removal of these
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encroachments. As the defendants 1 to 5 did not take any
action, the 1st respondent moved the suit.
3. The appellants herein, who are defendants 6 to 9
filed their written statements and also participated in the trial
by being examined as D.Ws. 4 to 8.
4. The stand of the appellants had been that they
had not encroached into the road margin and that their
constructions were not illegal. The further defence taken by
the appellants is that the 1st respondent had access to her
land from various directions and that the alleged
encroachment by the appellants would not in any manner
affect her ingress and egress into her land from the road and
consequently there was no requirement to remove the
structures or houses of the appellants.
5. The trial Court, after completion of trial and
consideration of the respective submissions of the parties,
had allowed the suit by way of decree and judgment dated
11.10.2017.
6. Aggrieved by the said judgment and decree, the
appellants had moved the Court of the X Additional District
Judge, Narasapur, by way of A.S.No.39 of 2017. This appeal
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came to be dismissed on 14.02.2023. Thereupon the
appellants have approached this Court, by way of the Second
Appeal.
7. Sri K.Chidambaram, learned Senior Counsel
appearing for Sri T. Sai Surya would contend that the suit as
framed by the 1st respondent is not maintainable as a
mandatory injunction cannot be granted without seeking a
declaration of title and a declaration that the rights of the
plaintiff are affected by the alleged encroachments. He would
further submit that there is no finding given by either the
trial Court or appellate Court that the appellants had
encroached into the road margin of the R & B road. He would
submit that in such circumstances, the judgments of both
the trial Court and the appellate Court require to be set
aside. He relied upon the judgment of a learned Single Judge
of the combined High Court of Andhra Pradesh in
L.Narasimha Reddy vs. L.Yella Reddy1 for the proposition
that a mandatory injunction cannot be sought without
seeking a declaration of rights.
1
2008 (2) ALD 142::2010(5) ALT 784
4
8. Sri M. Santosh Reddy, the learned counsel
appearing for the respondents would submit that there is a
finding by the appellate Court, on the basis of the admissions
made by the defendants, as D.Ws.4 to 8, that the defendants
(appellants herein) had encroached on to the road margin
while constructing their houses/structures. He would draw
the attention of this Court, paragraphs 25 to 55 wherein the
extracts of the said evidence has been set out.
9. Sri M. Santosh Reddy would also rely upon a
judgment of the learned Single Judge of the combined High
Court of Andhra Pradesh reported in Josyula Hanuma
Venkata Rao vs. Nandam Subbarayudu and others.,
2 and
the judgment of another learned Single Judge of the
combined High Court of Andhra Pradesh in Thummalapenta
Seetharamaiah vs. Ulchi Venkateswarlu and Others.,
3 to
contend that no person is entitled to encroach on to any
public road and it would be open to any person to seek relief
against such encroachments by way of seeking the relief of
mandatory injunction for removal of encroachments on the
2
1992 (3) ALT 375
3
2010(6) ALD 495
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road margin. He would submit that the judgment relied upon
by the learned Senior Counsel arose in the case of a dispute
relating to a private passage whereas the present case arises
on the question of encroachment on to public roads and
public road margin. He would also point out that the learned
judge who had delivered the judgment in the case of
L.Narasimha Reddy vs. L.Yella Reddy had also delivered
the subsequent judgment relied upon by Sri M. Santosh
Reddy in the case of Thummalapenta Seetharamaiah vs.
Ulchi Venkateswarlu and Others., wherein the learned
Single Judge was pleased to hold, following the Full Bench
judgement of the combined High Court in Sataraboina
Someswara Rao vs Sangasetti Tirupathamma and others4,
that any citizen can move the Court for the relief of
mandatory injunction for removal of encroachments on road
margins. He would also draw the attention of this Court to
the paragraph in Sataraboina Someswara Rao vs
Sangasetti Tirupathamma and others case, wherein the
Full Bench had held that—
4
1989(1) ALT 36
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“In my opinion, the said principle also involves public
policy. No person can be allowed to occupy a portion of a
public road, a highway or even a public pathway, and
argue that even after his encroachment there is sufficient
space left for public to pass by. He cannot be the judge of
the requirements of the public, nor can he decide for
himself what extent must be left for public use and what
extent must be occupied by him. At this rate, anybody
will be free to occupy a portion of such public streets,
highways and roads with the specious argument that
there is still space left for public to pass by. Slowly these
encroachments may become permanent. It is evident that
such a course cannot be permitted. It is true that Section
39 expressly speaks of discretion in the Court in the
matter of granting a mandatory injunction; but, the said
discretion has to be exercised in accordance with law and
having regard to the facts and circumstances of a given
case. Maybe that granting a mandatory injunction would
result in eviction of the poor people living in the huts, or
the displacement of the school which is said to be
running there for the last several decades; but that can
be taken care of by making appropriate directions.”
10. In these circumstances, this Court would have to
accept the contentions of the learned counsel for the 1st
respondent that there is a clear finding of fact relating to the
encroachment of road margin by the appellants herein and
that a person can always seeks the relief of removal of
encroachments, by way of a mandatory injunction, in case
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where the encroachments take place on public roads or
public road margins.
11. Accordingly, this Court does not find any merits
in this Second Appeal and dismissed. No costs.
As a sequel, pending miscellaneous petitions, if any,
shall stand closed.
____________________________
R. RAGHUNANDAN RAO, J.
08.08.2023
RJS
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HON’BLE SRI JUSTICE R. RAGHUNANDAN RAO
SECOND APPEAL No.275 of 2023
08-08-2023
RJS
