CHAPA LAKSHMI Vs. PENTAKOTA PARADESI NAIDU

JUDGEMENT

(1.) THIS second appeal is preferred by the plaintiff challenging the decree and judgment dated 17.1.2005 in A.S.No.54 of 2003 on the file of VI Additional District Judge Court, Visakhapatnam, reversing in appeal the decree and judgment dated 03.5.2002 in O.S.No.2005 of 1999 on the file of Principal Junior Civil Judge Court, Visakhapatnam. The parties are hereinafter referred to as they arrayed in the suit.

(2.) THE case of the plaintiff is that she is the absolute owner of schedule property admeasuring an extent of 90 Sq.yards, having purchased the same from Poothi Illapu Reddy under registered sale deed dated 23.3.1968. She raised thatched house in the schedule property and subsequently she constructed RCC slabbed house, after obtaining necessary approval from Visakhapatnam Municipal Corporation. She left 3 feet width lane, on the western side of RCC building, for her exclusive use. Prior to construction of her house, the vendor of defendant constructed RCC slabbed house on the western side of plaintiff 's house, without leaving any space. Out of the understanding between plaintiff and the vendor of defendant, she allowed the defendant to whitewash eastern wall of his house. The defendant is well aware that he has no site on the eastern side of his house. The defendant has made efforts to fix up pipes for sullage water and to open sunshades, on the eastern wall of his house, and tried to occupy 3 feet lane of the plaintiff. Taking advantage of interim injunction granted in I.A.No.669 of 1999 in O.S.No.2018 of 1999 on 29.6.1999, the defendant highhandedly fixed A.C. box, PVC pipes, old iron clamp and also put one hole on the eastern wall of his house. Hence, the plaintiff is constrained to file the suit for perpetual injunction and mandatory injunction directing the defendant to remove A.C. box, PVC pipes and also to close the hole in the wall within the time fixed by the court.

(3.) AN Advocate Commissioner was appointed in pursuance of the order in I.A.No.500 of 1999 in O.S.2005 of 1999. He submitted report on 08.9.1999 categorically mentioning that PVC pipes were fixed on the eastern wall of defendant 's house towards the lane. One hole and old iron clamp were found on the said wall. As per the sale deed of the plaintiff, measurements of the schedule site are from East to West 30 ' and from North to South 27 '. However, on ground, measurements are from East to West 29 ' -9 '' andfrom North to South 30 ' -6 ''. The width of the lane towards south is 1 ' -5 '' and towards north is 2 ' -9 '' and the length is 30 ' -6 ''. In the plaint schedule, measurements are shown as East to West 30 ' and North to South 29 '. The allegation of plaintiff that defendant highhandedly fixed A.C. box, PVC pipes and old iron clamp is not correct and they were in existence long prior to the institution of the suit. Under the guise of the present suit, the plaintiff wanted to remove them. When the plaintiff does not have right, title and possession of the schedule property, she is not entitled for any relief.