LAWS(APH)-1956-4-31

SOMU NAGIRODDY Vs. GOURU-GARI LINGAREDDI AND ORS.

Decided On April 19, 1956
Somu Nagiroddy Appellant
V/S
Gouru -Gari Lingareddi And Ors. Respondents

JUDGEMENT

(1.) This is plaintiff's second appeal. His suit for a declaration that the remarked rastha in the plaint plan is a public pathway and for a mandatory injunction directing the defendants to remove the construction s. T. U. V. W. And the roofing over the rastha, though decreed by the trial court, was dismissed on appeal by the subordinate judge of kurnool. The plaintiff owns a house marked a in the plaint plan while defendants 1 to 3 are owners of a house marked b. The 4th defendant's house is opposite to that of defendants 1 to 3, in the western direction. There is a road running north to south to the east of the plaintiff's house. The houses of defendants 1 to 3 and the 4th defendant are separated by open space which, according to the plaintiff, is a. Part of the public road marked r while the defendant's claim it as their private property.

(2.) The suit was resisted by the defendants on the ground that there is no public road at all running from north to south as shown in the plaint plan, that the whole space belongs to them and that the plaintiff has no cause of action against them. The trial judge decided that that part of the road marked r which is to the west of the plaintiff's house is a public rastha and that the defendants were not entitled to put up any structures or obstructions on any part of it. As regards the rest, it was his view that it was a site belonging to the defendants over which the plaintiff and the public have acquired a customary right of way.

(3.) On appeal, the subordinate judge reversed the decision of the district munsif, expressing the opinion that it was not established that the public had any right of way over the plaint road. He also thought that the trial court ought not to have granted any relief in respect of the passage in dispute on the ground of customary right as no such right was set. Up in the plaint. Further, it was the view of the subordinate judge that the suit was not maintainable for the reason that the consent of the advocate - general as required by section 91, civil procedure code, was not obtained. This judgment of the subordinate judge is impugned in this second appeal on various grounds.