MADDIRALA BABU RAO Vs. MANDLURI VENKAIAH

JUDGEMENT

(1.) 1.Sri Seshagiri Rao, learned counsel representing appellants-defendants 4 and 5 would contend that when the title deed relied upon by the 1st respondent-plaintiff does not refer to any of the rights in relation to 'Y' marked galli, granting relief in relation thereto cannot be sustained. The learned counsel also would submit that it is not as though the steps in question are constructed afresh, but the steps, in fact, had been in existence and it is only just further repairing or modifying the old steps and in this view of the matter also and after a long lapse of time confirming the relief of mandatory injunction as granted by the Court of first instance and also the appellate Court, if carried out, the appellants-defendants 4 and 5 would be put to serious loss. The learned counsel in all fairness would submit that no doubt judgment in Second Appeal No.400 of 1969, dated 3.11.1970 had been referred to in the substantial questions of law and the said judgment relates to the claim of easementary rights and also the relief of mandatory injunction, . whereunder the questions of acquiescence, estoppel, limitation etc had been considered and decided. The learned counsel, however, with all emphasis would conclude that the relief of mandatory injunction being discretionary and equitable relief, in the peculiar facts and circumstances, any direction for removal of the steps at this juncture would cause serious prejudice to the rights of the appellants-defendants 4 and 5.

(2.) Per contra, Sri Srinivas, learned counsel representing the 1st respondent-plaintiff in the suit had taken this Court through the findings, which had been recorded by the appellate Court, and would maintain that keeping all the facts and circumstances in view, the decree of the Court of first instance was slightly modified. The learned counsel also had explained the recitals in Ex.Al and the boundaries referred to in Ex.A2 and the findings recorded in relation thereto at paragraph 14 of the judgment of the appellate Court. The counsel also would point out that the report of the Advocate-Commissioner also would in a way support the stand taken by the 1st respondent-plaintiff.

(3.) Heard the learned counsel and perused the findings recorded by the Court of first instance and also the appellate Court.