Pothabathula Seetharatnam v. Gurram Veera Raghavayya

THE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO SA.No.911 of 2016 ORDER :

Heard the counsel for petitioner. None appeared for respondent.

2.

This Second Appeal is preferred challenging the judgment and decree dt.14.06.2016 in Appeal Suit No.286 of 2010 on the file of VIII Additional District Judge, West Godavari, Eluru. 3.

The appellant herein is plaintiff in the above suit. 4.

She filed the suit against respondent for declaration that she has a right of way in the plaint schedule 'ABCD' site as an easement of necessity, and sought consequential permanent injunction restraining the respondent from interfering in any way with the right of the appellant in using the said site as a passage to her rented portion. 5.

The case of appellant was that 'ABCD' site is located in between the properties of appellant and respondent, that it is a Municipal site, and she had a right of passage through this site since 1983. It is admitted that both parties have constructed buildings in their respective sites and when in 1993, a dispute arose between them a private surveyor measured both sides and allegedly found that the respondent encroached 7 inches towards northern boundary of the appellant, and the appellant constructed a stair-case by encroaching 3

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inches on the respondent's site. The appellant pleaded that Ex.A.3 agreement dt.11.06.1993 was entered into between the parties, and the appellant permitted the respondent for ingress and engress for construction work and that the respondent started construction of his southern side compound wall and constructed it between points 'EF' as shown in the plaint plan. She contended that the respondent also intended to construct a wall between points E & B as shown in the plaint plan which would curtail the access of appellant to the rented portion situated on the back side of her building, adjacent to 'ABCD' site.

6.

The respondent filed a written statement stating that Ex.A.3Agreement is a temporary arrangement till the appellant made her own arrangement for providing a way to her rented portions within her property, and that it was not registered nor properly stamped and has no value in law. He contended that the appellant violated the agreement and did not allow the respondent to carry out constructions and other miscellaneous work. He contended that the site is not a Municipal poramboke, that it belongs to him and is part of the property purchased by him under registered sale deed dt.30.10.1985. He contended that the appellant has to make her own arrangements to make way to the rented portions and cannot demand the respondent to give way to her rented portions through his property, particularly when the appellant had refused to allow the respondent to enter her site to undertake necessary work to his own site.

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7.

On the basis of these pleadings, the Court below framed the following issues :

"(i) Whether the plaintiff is entitled to declaration as prayed for ? (ii) Whether the plaintiff is entitled for consequential injunction as prayed for ?

(iii) To what relief ?"

8.

Before the Trial Court the appellant examined PWs.1 to 4 and marked Exs.A.1 to A.4. PW.4 marked C1 & C2. The respondent examined DW.1 and marked Exs.B.1 and B.2.

9.

The Trial Court held that the 'ABCD' site is not Municipal site since the appellant's title deeds Exs.A.1 and A.2 do not show the existence of a Municipal poramboke site towards north of appellant's property; and that the northern boundary shown in Ex.A.1 is property of one Rukia Bibi, which the defendant purchased under Ex.B.1. It also held that the Advocate-Commissioner (PW.4) also did not hold that 'ABCD' site is Municipal poramboke site, that no Municipal authorities were examined by appellant and no Municipal record was produced in support of her plea. It further held that appellant cannot be granted any relief since she had passage to her own site from the west of her site, and her documents also do not indicate that she was provided any passage from the north through the property of the respondent. Having regard to these findings, it held that no right of easement of necessity can be pleaded. It held that having constructed

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two portions for tenants towards the northern portion of her property, the appellant ought to provide a way to her tenants through her site, and she cannot insist that respondent provide passage to the rented portions of her site.

10.

Aggrieved thereby, the appellant filed A.S.No.286 of 2010 before the Special Judge for Trial of Cases under SCs & STs (P.O.A.) Act-cum-VIII Additional District Judge, West Godavari, Eluru. 11.

The lower court also concurred with the findings of Trial Court and dismissed the appeal. It further held that in the crossexamination, the appellant admitted that when the respondent constructed terrace house in 2004, Ex.A.3-Agreement that existed between them with regard to the joint passage lapsed. 12.

Challenging the said judgment, the present Second Appeal is filed.

13.

The counsel for appellant raised certain questions of law in the grounds of the Second Appeal.

14.

A perusal of these questions of law show that essentially certain findings of fact are raised therein and no substantial questions of law arise. No material is placed before this Court to disagree with the findings of the Trial Court and the Appellate Court that the 'ABCD' site is not a Municipal site, and her plea that there is no other way to her rented portions except through 'ABCD' site is false. Since the entire case of appellant is that she had an easement of necessity

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entitling her for grant of perpetual injunction, and that the 'ABCD' site is a Municipal poramboke site, and since it is found by both Courts that these two pleas are false and that she has access to her site from the West of her property, it has to be held that the appellant has approached the Court with unclean hands, disentitling her to any injunctive relief which is an equitable relief. 15.

The case of appellant based on Ex.A.3-Agreement also cannot be accepted in view of her own statement in the cross-examination that as and when the respondent constructed terrace house in 2004, Ex.A.3 - Agreement between them with regard to the joint passage, lapsed. Also since admittedly Ex.A.3-Agreement between the parties is unstamped and unregistered it would otherwise be also inadmissible in evidence.

16.

In this view of the matter, I do not find any merit in the Second Appeal, and it is accordingly dismissed at the stage of admission. No order as to costs.

17.

As a sequel, miscellaneous petitions pending if any in this Second Appeal, shall stand closed.

__________________________________ JUSTICE M.S.RAMACHANDRA RAO Date: 11-11-2016 Ndr/*