RAMGOPAL KALANTRI Vs. G GANAND
HIGH COURT OF ANDHRA PRADESH
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(1.) The plaintiff is the appellant. He filed the suit in the trial Court initially for permanent injunction restraining the defendant from blocking the gate marked AB on the southern side of the plaintiffs house and later on, amendment sought for a mandatory injunction directing the defendant to remove the constructions made by him blocking the gate marked AB and the constructions made on the compound wall. The trial Court decreed the suit issuing mandatory injunction directing the defendant to remove construction blocking the gate marked AB and to remove in front of the gate and across the compound wall of the plaintiffs premises running east to west of the H. No 1-7-192 situated at Bakaram. Hyderabad within a period of three months from the date of this decree and granted perpetual injunction restraining the defendant his agents and all other persons claiming through him from blocking the gate marked Ab and from making any construction in front of the gate and across the compound wall running from east to west on the plaintiffs premises referred to above. Challenging that decree, the respondent went in appeal. The lower appellate Court allowed the appeal, and dismissed the suit. As against the dismissal of the suit, this second appeal has been filed.
(2.) Most of the material facts not in dispute leading to the filing of the suit are as follows:- the plaintiff is the absolute owner of the premises bearing No. 1-7-192, situated at Bakaram hyderabad by virtue of a registered sale deed dated 17-9-1955. There exists a gate on the southern side of the compound wall marked Ab in the plaint plan. It opens into the road beyond the open space. It has been in existence even long prior of 1956. The plaintiff has been using this gate as ingress and egress from his house into the road situated on the southern side as usual passage. But the defendant in the first week of july 1974, started making construction of a wall blocking the gate and thereby obstructing his right of passage of ingress and egress from his house into the road on the southern side. According to the plaintiff these actions of the defendant are unwarranted, unauthorised and without any manner of right whatsoever though he informed of the same to the Municipal corporation by a complaint. No action was taken by the Municipal corporation preventing the defendant from making construction blocking the existing gate. The defendant has no manner of right or authority to block the said passage and the gate which was in existence long prior to 1956 In para 5 of the plaint , in the cause of action portion he had specifically stated that" the cause of action arose on 1-12-1974 when the defendant started construction blocking the gate and thereby preventing the right of ingress and egress to the plaintiff". As stated earlier in the first instance he filed the suit for a mere perpetual injunction but subsequently when construction was completed in the interregnum he filed the application for amendment of the plaint seeking for relief of mandatory injunction and that permission was granted.
(3.) In the written statement filed by the respondent/defendant the facts that the gate is in existence prior to 1956 and that the appellant/plaintiff has been using this gate as an ingress and egress from his house into the road existing on the southern side and that the gate is in existence at the AB place of the plaint plan on the southern side are not disputed. It is also stated so in the course of the arguments in this appeal. It is also not disputed that the defendant constructed the wall in the interregnum and that it completely blocks the AB gate; thereby the right of ingress and egress of the appellant/plaintiff from that gate into the southern road from the house of the plaintiff is completely obstructed and closed. The material contention in the written statement filed by the defendant is that the plaintiff has his gate on the eastern side opening in 10 feet line. The defendant denied the other allegations made. Even in the additional written statement filed by the defendant what all has been stated is: "it is not true as alleged that the defendant has constructed the wall blocking the gate marked AB subsequent to the filing of the suit and the same is denied". In paragraph 2 in the additional written statement he stated that "the plaintiff is not entitled for direction as prayed and no direction can be given to the defendant to remove the construction blocking the gate marked AB and remove all the constructions that are made in front of the gate and across the compound wall running from East to west of the House bearing No. 1-7-192 Bakaram, hyderabad. The defendant has legally constructed the wall after obtaining the approval of the Municipal corporation of Hyderabad". From these averments in the written statement it can be safely concluded that there is a wall constructed by the defendant and it blocks the gate marked Ab and that it is in front of the gate and across the compound wall running from east to west of the house of the plaintiff. It was constructed lawfully as per the sanction granted by the Municipal corporation.;
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