KUCHIBOTLA KANAKAMMA Vs. TADEPALLI RANGA RAO

JUDGEMENT

(1.) Defendants, husband and wife, are the appellants in this second appeal which is preferred against a decree granting a mandatory injunction directing them to remove a cross-wall and certain other sti uctures from the portion ABNM of the pathway marked A.B.C.D.in the plan attached to the decree and a permanent injunction restraining them fiom obstructing the free passage of the plaintiffs through the lane A.B.C.D. The lane ABCD was originally a part of a large block of land belonging to one Cherukuru Subba Rao who divided it into several plots and sold them as building sites to different individuals some of whom have subsequently built houses thereon. The lane A.B.C.D. is 9 feet wide and runs between and along the whole length of the backyards of two rows of sites and houses situated to the north and south. The lane A.B.C.D. opens into a public road both on the east and the west, at the places indicated as C.D. and A.B. respectively. The defendants' house P.N.B.B1 is situate north of the lane at its westernmost extremity. The portion of the lane just behind the house P.N.B.B1, is marked as A.B.N.M. and it is on this plot A.B.N.M. that the structures complained against are found. The finding of the Courts below, which I accept, is that when Subbarao the original owner of the entire block of land divided it into parcels and sold them as building sites, the lane A B C D was set apart for serving as a common pathway for the owners of the plots on either side, particularly for their servants, sweepers and scavengers. The plaintiffs, as owners of the sites and buildings on either side of the lane A.B.C.D. brought the present suit on 2nd May, 1949, for an injunction, both mandatory and prohibitory, against the defendants alleging that the latter had, four years before suit, put up a cross-wall across the lane, along the line M.N. thereby obstructing plaintiffs' access through the lane to the public road lying to the west and had also started the erection of some structures at the points A and B so as to close the lane at one end along A.B. According to the defendants, the portion of the lane A.B.N.M. lying next south of their house N B B1 P belonged to them, that even otherwise their predecessors in title had effectively blocked the passage through A.B.N.M. as early as 1934 by the construction of a motor garage and that the defendants had therefore acquired a prescriptive title to the portion of the land marked A.B.N.M. The suit was stated to be barred by limitation.

(2.) The only point argued before me was whether the suit was barred by limitation. The Courts below have held, after an examination of some reported decisions, that the invsion of the plaintiffs' right of way by the defendants and their predecessors-in-title was a continuing wrong, that a fresh cause of action arose di die in diem to the plaintiffs and that the suit was not barred by limitation having regard to section 23 of the Limitation Act. In this view, the suit was decreed.

(3.) At the outse', it is necessary to state a few relevant facts. Exhibit A-1 dated 26th February, 1929, was the sale c f the site B B1 P N by the original owner Subbarao to Venkata Krishna Rao, the defendants' predecessor-in-title. Exhibit A-1 does not include the portion of the lane A B N M now encroached upon by the construction of a motor garage but refers, on the other hand, to the lane as the southern boundary of the site sold. The sons of the vendee under Exhibit A-1 who had built a house on the site B B1 P N sold the house to one Venkatappayya under Exhibit B-1 dated 4th November, 1938. This sale deed included not only the house and the site B B1P N conveyed under Exhibit A-1 but also that portion of the lane adjacent to the house on the south marked as A B N M. The length and breadth of the property sold given in Exhibit B-1 as well as the description of the southern boundary clearly show that the portion of the lane marked A B N M on which a motor garage stood, was included in the sale. Exhibit B-2 dated 1st June, 1947, is the sale in favour of the first defendant and the property conveyed thereunder is described in the same manner as in Exhibit B-1, that is to say as including the portion of the lane A B N M and the motor shed thereon. The evidence of Shri Vepa Krishnamurthy (D.W.1) Superintending Engineer, Bezwada, shows that he was a tenant of the defendants' house in 1934, that when he took the house on rent there was no motor garage, that in April 1934 he erected a motor shed on the site of the land with a gate and doors at the point A and B, that a short wall was put up in the north along the length of the garage and that the roof of the motor shed rested on this wall and on the wall of the house situated south of the lane. He stated that he recovered the cost of the garage from the owner of the house. D.W.2, a retired Assistant Engineer and a tenant from 1940 to 1946 of the house opposite to the house now in question stated that the defendants' house was then in the occupation of Gannon Dunkerly & Co., and that there was a garage to the south-west of the house filled with a gateway and galvanised iron shutters during the time he was living there. D.W.3, an employee of Gannon Dunkerly & Co., stated that the company was a tenant of the defendants' house from 1934 to 1948, though the house changed hands during that period. He spoke to the existence of a garage to the south of the house from 1934 and to its gate being in the west, that is to say, at the place marked A B in the plan. He also spoke to a wall across the lane at M N, as having been in existence even before the company began to occupy the house in 1934. D.W.3, the son of the vendor under Exhibit B-2 gave similar evidence. The lower Appellate Court observed as follows :- "We find in Exhibit B-1 reference made to the existence of a motor shed in the plot. Exhibit B-1 is dated 4th November, 1938. Therefore at least prior to that date there must have been a motor garage in the portion marked A B N M. So, the case of the plaintiffs that the interference with the lane took place only 4 years ago does not stand scrutiny."