Andhra HC (Pre-Telangana)
Yelugula Subba Rao vs Perumalla Sri Ramakrishna Murthy And ... on 28 June, 2005
Equivalent citations: 2005(5)ALD101
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
JUDGMENT L. Narasimha Reddy, J.
1. This second appeal is filed against the judgment in A.S. No. 37 of 1997 of the Court of Senior Civil Judge, Tadepalligudem, through which it reversed the judgment and decree, dated 14-5-1997, of the Court of Principal District Munsif, Tadepalligudem, in O.S. No. 129 of 1990.
2. The 1st respondent filed the suit, initially, for the relief of perpetual injunction, restraining the appellant herein from interfering with his right of access by way of easement, for the purpose of ingress and egress from the plaint schedule property to the R & B road, through the road margin. Subsequently, the prayer for mandatory injunction for removal of pillars and restoration of the site to its normal position in R, R2, R6 and R7 portion of the road margin, was added. The 1st respondent contended that he purchased the suit schedule property under two separate sale deeds, dated 15-7-1974 and 24-5-1975, marked as Exs.A.1 and A.2, respectively. He pleaded that the western side of the suit schedule property is the R&B road and the appellant had encroached into the road margin before the suit schedule property and obstructed his access to the road.
3. The appellant filed a written statement, denying the contentions of the 1st respondent. He pleaded that his father constructed a thatched shed in the Gramakantam abutting the road, 50 years back, and when the same was damaged in the cyclone, he constructed a tin shed with R.C.C. pillars. He pleaded that the 1st respondent has no right, whatsoever, against the land over which he constructed the house and that the Gram Panchayat has also recognized his possession by collecting tax and issuing licence. He pleaded that there exists Gramakantam between the road margin on the one hand and the suit schedule property on the other hand. According to him, the 1st respondent had, in fact, encroached into the road margin.
4. The 3rd respondent-Executive Engineer, Roads and Buildings, Bhimavaram, filed a written statement pleading that the appellant herein had encroached into the road margin, and thereby, obstructed the free flow of traffic. He contended that the appellant has no right, whatsoever, over the road margin.
5. Before the Trial Court, the 1st respondent was examined as P.W.1 and he has also examined PW.2. Exs.A.1 and A.2 were marked. On behalf of the appellant, DWs.1 to 3 were examined and Exs.B.1 to B.7 were marked. The Trial Court dismissed the suit on the ground that the suit was barred by limitation. It was found that the suit notice was issued in the year 1983, whereas it was filed in the year 1990. Aggrieved by the judgment and decree of the Trial Court, the 1st respondent filed A.S. No. 37 of 1997. The lower Appellate Court allowed the appeal.
6. Sri P. Vinayaka Swamy, learned Counsel for the appellant, submits that the lower Appellate Court misread the evidence and ignored the fact that there exists a Gramakantam between the road margin on the one hand and the properties covered under Exs.A.1 and A.2 on the other hand. He submits that the shed raised by the appellant was in existence even by the time the 1st respondent purchased the suit schedule property. Learned Counsel submits that if the appellant had encroached into the road margin or Government property, it is for the concerned authorities to take steps for removal of such structures, and that the suit claim is without any basis.
7. Sri P. Girish Kumar, learned Counsel for the 1st respondent, on the other hand, submits that Exs.A.1 and A.2 clearly disclose that the property covered by them is facing the R & B road on the western side. He submits that no individual has any right to encroach into the road margin and thereby to obstruct the ingress and egress of the persons holding properties abutting the road. He places reliance upon a judgment of this Court in Sataraboyina Someswamrao v. Sangasetti Tirupathamma, 1989 (1) ALT 36.
8. The suit, as amended, was for the relief of perpetual as well as mandatory injunctions. The grievance of the 1st respondent is that his access to the road from the suit schedule property was being obstructed by the appellant. The appellant did not claim any ownership over the property on which he constructed the shed. Though the appellant pleaded that the shed was in existence since 1950, the lower Appellate Court recorded a finding to the effect that it was in existence at the most since 1974. Irrespective of the year, in which, it was erected, the appellant does not derive any right, if it was on a road margin.
9. It is difficult to recognize even possessory rights in favour of individuals, who occupy or encroach into roads and road margins. Such recognition would bring about disastrous consequences and would promote disorder in the society.
10. A Division Bench of this Court, in the judgment referred to above had an occasion to examine the rights of individuals having properties abutting the public road. There was unanimity of opinion to the effect that such persons have an absolute right to have access to the road and that it cannot be infringed, particularly, by the private individuals. There was a difference of opinion as to the nature of relief to be granted. The learned Single Judge, whom the matter was referred to, agreed with the view that the structures causing such obstruction shall have to be removed, irrespective of the inconvenience caused to the persons who brought about the same. The lower Appellate Court did nothing more than applying this principle to the facts of this case.
11. Though the learned Counsel for the appellant had strenuously contended that there exists a Gramakantam between the plaint schedule property on the one hand and the road margin on the other hand, he is not able to invite the attention of this Court to any oral or documentary evidence in this regard. Once it had emerged that the 1st respondent is the owner of the property covered by Exs.A.1 and A.2, the appellant cannot be permitted to obstruct his access on any portion of such property. It may be true that the appellant would be subjected to some hardship, if the structure in question is removed. In his written statement, the 3rd respondent stated that the said structure is causing obstruction for the people. The 1st respondent stated that his privacy is severely affected and access to the road is hampered. Under these circumstances, this Court does not find any basis to interfere with the judgment and decree of the lower Appellate Court.
12. To mitigate the hardship of the appellant, he is granted time upto 31st October 2005, to remove the structure. It shall be open to him to approach the authorities of the Gram Panchayat and R&B to allot an appropriate site, in such a way, as not to cause any obstruction and if such a site is available, the concerned authorities shall consider the application of the appellant and take necessary steps. However, the appellant shall not be allowed to stay beyond 31-10-2005, in the structure in question, on the ground that the alternative site was not allotted.
13. Accordingly, the second appeal is dismissed. No order as to costs.