Thummalapenta Seetharamaiah vs Ulchi Venkateswarlu and Others

L. Narasimha Reddy, J.—Respondents 1 to 7 (for short ''the Respondents'') filed O.S. No. 142 of 1994 in the Court of Principal District Munsif, Chirala, against Respondents 8 to 11 and the Appellant herein, for the relief of perpetual injunction, in respect of ''A'' schedule property, and mandatory injunction, in respect of ''B'' schedule property. It Was pleaded that, they own land nearby the highway - Sopirala Village, Chinnaganjam Mandal, Ongole District, and they have access to the highway through a Gramakantam, admeasuring Ac. 0.12. cents, described in the ''A'' schedule. Their complaint was that the Appellant herein, who figured as Defendant No. 5, has raised a hut in an extent of Ac. 0.02 cents described in ''B'' schedule and is causing obstruction to their access. Their principal grievance was against the Appellant, and their complaint, against Respondents 8 to 11, was mostly about their inaction to remove the encroachment.

The Appellant alone contested the matter. He filed a written statement, stating that the Respondents themselves have encroached into Gramakantam of Ac. 0.12 cents, and the hut raised by him does not at all obstruct the access to the highway. Through its judgment, dated 29.02.1996, the trial Court decreed the suit. A.S. No. 13 of 1996, filed by the Appellant, in the Court of Senior Civil Judge, Chirala, was dismissed on 19.02.1999. Hence, the Second Appeal.

Sri Surendra Desai, learned Counsel for the Appellant, submits that the trial Court as well as the lower Appellate Court recorded specific findings to the effect that the encroachment made by the Appellant does not in any way obstruct the access of the Respondents to the highway and still have decreed the suit. He contends that the very suit filed by the Respondents is not maintainable, inasmuch as they did not claim any right of ownership, vis-a-vis the land and being encroachers themselves, they cannot seek the relief of mandatory injunction against the Appellant.

Sri Rama Chandra Rao, learned Counsel for the Respondents, on the other hand, submits that the Appellant has encroached a road margin and thereby, obstructed access not only of the Respondents, but also of other public in the village to the highway. He contends that, even if his clients do not have any title, or vested right in ''A'' or ''B'' schedule property, they have got every right to seek the removal of encroachments upon the road margin. Learned Counsel further submits that his clients did not encroach ''A'' schedule property and their effort was only to protect their access to the highway.

On the basis of the pleadings before it, the trial Court framed the following issues for its consideration:

i)Whether the Plaintiffs are entitled for perpetual injunction, as prayed for? And

ii) Whether the Plaintiffs are entitled for mandatory injunction?

The Respondents examined PWs.1 to 4 and filed Exs. A.1 to A.11. On behalf of the Appellant, DWs.1 to 3 were examined and Exs. B.1 and B.2 were filed. The suit was decreed. The lower Appellate Court has undertaken the discussion on the same lines and dismissed the appeal. There is no denial of the fact that the Respondents did not claim any ownership, vis-a-vis plaint ''A'' and ''B'' schedule properties. In clear terms, they pleaded that they are using plaint ''A'' schedule property as access to the highway. Their complaint is that the hut constructed by the Appellant is causing obstruction. It is no doubt true that the Advocate-Commissioner, appointed by the trial Court, and the Official. Commissioner, appointed by the lower Appellate Court, visited the site and reported that the access of the Respondents to the highway is not completely obstructed, on account of the existence of the hut raised by the Appellant in the ''B'' schedule. Having recorded those findings, both the Courts have referred to the judgments rendered by this Court in S. Someswara Rao v. Tirupathamma 1989 (1) ALT 36, and decreed the suit as prayed for.

From the judgment rendered by this Court in S. Someswara Rao''s case (1 supra), it becomes clear that, even where the citizens have other access to a public highway, they can seek the relief of mandatory injunction for removal of encroachments on the road margin. The relevant paragraph reads as under:

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 a 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. May be 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.

Support was derived from the judgment of the Supreme Court in Olga Tellis and Others Vs. Bombay Municipal Corporation and Others, This judgment was followed subsequently in several other cases.

Therefore, even on the admitted facts, namely, that the Respondents are not absolute owners of ''A'' schedule property and their access to the highway is not totally obstructed, on account of the hut in ''B'' schedule; they have the right to seek mandatory injunction for removal thereof. The Courts below have followed the correct principles of law. This Court is not inclined to interfere with the concurrent findings of fact.

The Second Appeal is accordingly dismissed. There shall be no order as to costs.