J H VENKATA RAO Vs. N SUBBARAYUDU

JUDGEMENT

(1.) This appeal is filed by the plaintiff in O.S. 530/1976 in the court of District Munsif, Tanuku. The plaintiff filed the suit against 14 defendants for a mandatory injunction directing the defendants 1 to 13 to remove unauthorised construction of walls etc. on the road margin in Lingala street in Penugonda village adjacent to the northern side of the plaintiff's house and for costs of the suit.

(2.) The plaintiff's case is that in the road margin between his compound wall and the road there is a space of about 3 yards width which is road margin and defendants 1 to 13 have constructed a building on the road margin with the avowed object of installing a deity in spite of the plaintiff's objection that it will interfere with the access to the Street. The defendants 1 to 9 and 13 contended that the Mandapam was constructed in 1968 and the deity has to be installed and walls are being constructed to prevent its exposer to Sun and rain but the plaintiff himself encroached into the road margin and constructed a pial and opened a doorway and he has no legal right to occupy the road margin. They also contended that the temple is not causing any obstruction to the plaintiff to reach this street through this new doorway and by enclosing the temple with walls no loss or inconvenience is caused to the plaintiff. Defendants 10 and 11 contended that they are in no way interested and they are not necessary parties. The 14th defendant i.e. Gram Panchayat contended that it is not a proper or necessary party.

(3.) The trial court dismissed the suit on two grounds i.e., though the Mandapam was constructed as long as in 1968 the plaintiff kept quite for a period of about 8 years and secondly the plaintiff himself having encroached into the Panchayat site by constructing pial is not entitled to seek for discretionary relief of mandatory injunction. On appeal preferred by the plaintiff i.e., A.S.5/ 1980 the learned Appellate Judge also agreed with the findings of the trial court that the person who has allowed the nuisance to continue for 10 longyears is not entitled to contend that the above construction is infringing his right and that the plaintiff who constructed pials in the road margin cannot complain that the defendants are encroaching in their part of the same site and so he has not come to the court with clean hands and hence the plaintiff is not entitled to claim the relief of mandatory injunction. This appeal is preferred against the said judgment.