Decided on May 20,1969



- (1.)This second appeal hy the plaintiffs is directed against the decree and Judgment of the learned District Judge, Khammam. The plaintiffs instituted the suit for a declaration that the 2nd plaintiff is the owner of the suit land and is in possession thereof, and that the defendants may be restrained by a perpetual injunction from interfering with their possession of the schedule land, they also prayed for a mandatory injunction directing them to close the openings which they made in the places marked 'X' in the plaint plan. Very strangely the plan attached to the plaint has not been attached to the decree of the trial Court. It will now be attached to the decree of this Court.
(2.)The plaintiff's case was that out of Ac. 2-20 in Khasra 281 of Narapanenipalli village, they retained 1 acres for constructing houses and sold 33 guntas to the 1st defendant, after allowing 7 guntas of land for use as passige in the village. The land sold to to the 1st defendant had two side passages as shown in the sketch. Defendants 1 to 4 are brothers while defendants 5 to 9 are their relatives. The plaintiffs constructed houses in their respective portions The house constructed by the 2nd plaintiff collapsed in 1954, but he did not construct another house thereon: Instead, he protected it by erecting a fence all round with Mangalagiri Kancha, which had grown up to a height of 6 feet. The 1st defendant, who resides in the adjoining plot on the eastern side, attempted to occupy the site belonging to the 2nd plaintiff, and the matter was reported to the Tahsil office. The revenue authorities after enquiry, restrained the defendants from interfering with the possession of the plaintiffs. Nonetheless, on 24-5-1957, defendants 1 to 9 cut the Mangalagiri Kancha of 6 feet width on the eastern and the western ends of the suit site, marked 'X' in the plaint plan The plaintiffs approached the Police, but not getting any relief they approached the Revenue authorities. The Tahsildar, after inspection and enquiry, passed an order holding that the land belonged to the 2nd plaintiff. When the plaintiffs tried to close the opening made by the defendants, they threatened to beat them The 2nd plalntift is the owner of the land, and the 3rd plaintiff's land is adpining it on the North. By reason of the openings made by the defendants, the 3rd plaintiff is put to a loss. The 1st plaintiff as the elder brother is managing the affairs of the 2nd plaintiff, and hence the suit.
(3.)The suit was resisted on several grounds, inter-alia that it is Government Abadi land, that the disputed strip of land about 7 yards wide is a pathway from East to West and enjoyed by them as an easement of necessity, and that there is a fencing of Mangalagiri Kancha on either side of the passage. The length of the passage, found by the Courts below, is 70 yards. It is also contended that there is no irreparable loss caused by the de'endants using it as a pathway, and that in any event only damages can be awarded. On these contentions, the learned District Munsif framed appropriate issues. He found that the 2nd plaintiff is the owner of the site in question, and that he is in possession and enjoyment of the suit land as per the plan filed with the plaint. He further found that the defendants cut the fencing at the places marked 'X' in the plan. He found on issue No. 3 that there is no pathway available to the defendants on the North, though it may be circuitous, and that the disputed pathway is not essential for the enjoyment by the defendants of their residential houses, and that they caonot claim it as an easement of necessity. Though the District Munsif found all the issues in favour of the plaintiff, he held that the plaintiff was only entitled to damages, but not the remedy of injunction, either mandatory or restrictive. Against this decision, the plaintiffs preferred an appeal to the. Court of the District Judge, Khammam, The decision of the Trial Court was affirmed, and hence the second appeal.

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