Dismissed

Metta Peda Sidda Reddy (died) v. Metta Seetharami Reddy

Telangana HC31 Oct 2013SA/666/2013

Case brief

AI extract

What is this about?

Second Appeal dismissed. This Court held that an encroachment in a road margin by any party entitles a person having right of access into the road to seek mandatory injunction for removal, without seeking a declaration of title or easementary right. The lower courts' findings were not perverse.

What did the court decide?

Second Appeal dismissed with no costs; lower court decrees affirmed.

Metta Peda Sidda Reddy (died) Vs Metta Seetharami Reddy — Property and Title | Telangana HC (2013)

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THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR

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Second Appeal No. 666 of 2013

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Judgment:

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This second appeal is directed against the judgment and decree, dated 03.06.2013, passed in A.S. No. 4 of 2010, whereby and whereunder the learned Senior Civil Judge, Gudur, has confirmed the judgment and decree, dated 26.03.2010, passed in O.S. No.500 of 1999 by the Principal Junior Civil Judge, Gudur.

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The first respondent herein is the plaintiff and the appellants herein are the defendants 1 to 3, 7 and 8, and respondents 2 to 4 herein are the defendants 4 to 6 before the trial Court. Since the second respondent died he is being represented by respondents 3 and 4 herein, but it is endorsed that respondents 2 to 4 are not necessary parties to the appeal. Therefore, now the main dispute is between the appellants i.e., defendants 1 to 3, 7 and 8 and the plaintiff. Since the first appellant (first defendant) died he is being represented by the appellants 2 to 5.

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The parties will be referred to as they are arrayed before the trial Court for the sake of convenience.

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The plaintiff, namely Metta Seetharami Reddy, filed the suit stating that the plaintiff, the first defendant, namely Metta Pedda Sidda Reddy, who is the father of defendants 2 and 3 and husband of defendant No.7 and one Metta China Sidda Reddy are brothers and they constituted Hindu joint family. Metta Pedda Sidda Reddy was managing the joint family as elder member of the family. As manager of the joint family, the said Metta Pedda Sidda Reddy purchased the schedule mentioned house site from one Nellore Rangamma for a valuable consideration of Rs.400/- under a registered sale deed dated

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07.09.1984 and took possession of the same. Subsequently, the plaintiff and his two brothers partitioned their joint family properties under a registered partition deed dated 27.08.1973 and in the said partition the plaint schedule site fell to the share of the plaintiff. The further case of the plaintiff is that he has been in possession and enjoyment of the plaint schedule site and he got constructed a basement therein with a view to construct a house. Subsequently disputes arose between the plaintiff and the defendants 1 to 6 due to recent elections and since then the defendants started giving trouble to the plaintiff. The plaintiff went to Korukonda Sainik School, Vijayanagaram, about 5 days ago and when he returned to the village on 18.12.1999 he found that the defendants 1 to 6 were digging a pit in front of his house site on the western side in between his basement and the street with a view to block the way and due to which the plaintiff has no free ingress and egress from his site into the street. The further case of the plaintiff is that he has got right over every inch of road margin to reach from his house site to the street and vice versa. It is also his case that when he questioned the defendants 1 to 6 about their highhandedly digging the pit, they adamantly refused to remove the sullage pit, therefore he filed the suit for mandatory injunction directing the defendants to remove or close the disputed sullage pit and for consequential directions.

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The first defendant filed written statement stating that the plaint schedule site is a vacant site with a dilapidated basement and to the north of the plaint schedule site there is vacant site of Basireddy Rami Reddy, the 4^th defendant and to its west i.e., on the north-west of the laint schedule property there is house of Basireddy Rami Reddy. Abutting on the south of the house of said Basireddy Rami Reddy there is some vacant site belonging to the said Basireddy Ramireddy.

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Their main case is that in the said vacant site only the first defendant had dug a pit and the same is closed with cement slab at the ground level. Thus, the specific case of the first defendant is that the pit was dug in the site of the 4^th defendant with his consent and permission. It is also their case that the pit dug is not causing any inconvenience to the plaintiff.

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The trial Court framed the following issues.

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1. Whether the pit was dug in the site of the fourth defendant?

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2. Whether the plaintiff is entitled to mandatory injunction as prayed for?

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3. To what relief.

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On behalf of the plaintiff, PW.1 was examined and Exs.A1 to A3 were marked. On behalf of the defendants DWs.1 to 3 were examined but no documents were marked.

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The learned Principal Junior Civil Judge, Gudur, on appreciation of oral and documentary evidence, came to the conclusion that under Ex.A1 the western boundary of the plaint schedule property is shown as road. The trial Court also came to the conclusion that the western side of the basement neither belongs to DW.2 nor her husband and therefore the contention of the defendants that they took permission from the husband of DW.2 for construction of the said pit is not correct. It is also observed that the report of the Commissioner shows that the defendants dug out the road and laid pipelines into the disputed pit just before the visit of the plaint schedule property by the advocate-commissioner. Accordingly, the trial Court decreed the suit. Challenging the same, the defendants preferred an appeal in A.S. No.4 o 2010 on the file of the Senior Civil Judge, Gudur, but were unsuccessful. The lower appellate Court also came to the

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conclusion that the defendants did not produce any record that the fourth defendant got site abutting the foundation in the site of the plaintiff. The lower appellate Court also found that the disputed sullage pit was dug by the defendants abutting the basement of the plaintiff and it is in between the basement of the plaintiff and the road on the west and the plaintiff has got right of access into the road on the west of his property and therefore entitled for mandatory injunction. Aggrieved by the same, the defendants filed the present second appeal.

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The main contention of Sri O. Manohar Reddy, learned counsel for the appellants is that a suit for mandatory injunction simplicitor without seeking declaration of easementary right of way to the road is not maintainable. It is also submitted that the Courts below are not right in making out a new case that the pit was excavated in the site of the plaintiff.

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Learned counsel for the respondent relying on the judgment of this Court reported in Josyula Hanuma Venkata Rao v. Nandam Subbarayudu^[1] , submitted that any encroachment made by any party in the road margin gives a right to any other person, having right of access into the road, to get it removed.

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As far as the second appeal is concerned, normally the evidence cannot be re-appreciated unless it is shown that the findings of the Courts below are perverse and not based on evidence or that material evidence on record has been ignored. There is nothing on record to say that the findings of both the Courts below are perverse and not based on the evidence on record. As seen from the findings of the Court below, the evidence on record establishes that there is a street abutting the site of the plaintiff. The boundaries of the property, allotted to the plaintiff under Ex.A1, establish the said fact. The

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boundaries are not disputed by the defendants. The western boundary of the plaint schedule property is referred as street. The disputed pit is admittedly dug by the defendants in between the foundation of the plaintiff and the street. As far as streets are concerned the legal position is well settled. There is no need to seek a declaration of title as far as access to road or a street is concerned. Though there are certain observations of the trial Court that the defendants had dug the pit in the site belonging to the plaintiff appears to be not correct. It is not the case of the plaintiff that the defendants had dug the pit in his site. Merely because there are certain inconsistent observations by the trial Court the same cannot be a ground to set aside the well reasoned judgment of the trial Court as well as the lower appellate Court. Except the said minor inconsistency the other findings of the courts below are absolutely based on well reasoning and the evidence on record. It is settled law that if the constructions are made in the road margin, the aggrieved party who has every right of access into the road can seek the relief of mandatory injunction or demolition of the constructions made by the opposite party. In view of the same, I do not find any ground to interfere with the well reasoned findings given by both the Courts below. The Second Appeal is devoid of merit and the same is liable to be dismissed.

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Accordingly, the Second Appeal is dismissed. No costs. As a sequel, the miscellaneous petitions, if any, pending in this second appeal shall stand closed.

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______________________ B. CHANDRA KUMAR, J.

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Date: 31.10.2013 Nsr

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[1] 1992(3) ALT 375

Metta Peda Sidda Reddy (died) v. Metta Seetharami Reddy

Case brief

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Metta Peda Sidda Reddy (died) v. Metta Seetharami Reddy

Case brief

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