SATARABOYINA SOMESWARA RAO Vs. SANGASETTI TIRUPATHAMMA

JUDGEMENT

(1.) Admittedly the cart track poramboke is used by the public of the locality to take their cattle, carts and men. On a portion of the poramboke, the defendants raised structures. Admittedly the defendants are encroachers and are liable to be evicted either by the government or by the Eluru Municipality. The plaintiffs sought a permanent injunction restraining the defendants from interfering with their right to use the entire poramboke as pathway and also sought a mandatory injunction for removal of the structures raised by the defendants. In the plaint, it is admitted that a block-topped road was also laid some time prior to the filing of the suit either by the government or by the municipality. The structures erected by the defendants, it is not asserted in the plaint, are on the black topped road. It is also pleaded by the plaintiffs that they have no other pathway for reaching their lands or for taking their men, cattle and carts to their lands and that the suit public pathway is the only passage. It is however admitted af the trial by the plaintiffs that on the north of the lands there is a pucca passage to take their, cattle, carts and men the said passage was purchased under Ex. A-4 by some individuals of the locality for the benefit of the residents of the entire locality.

(2.) The trial court observes that the purchase under Ex. A4 is for the benifit of the residents of the locality. The appellate court however, observes that the owners of the passage purchased under Ex. A4 may obstruct the plaintiffs from using the same. Be that as it may, the appellate court also finds that the space left out in the suit public pathway after erection of sheds by the defendants is sufficient to serve the needs of the plaintiffs. However, the appellate court reversing the judgment and decree of the trial court granted both the injunctions prayed for by the plaintiffs on the ground that they are entitled to use every inch of the public pathway from one and to the other, relying upon the decision in Butchamma vs. Venkateswara Rao AIR 1969 A.P. P. 136. The correctness of this decision is canvassed by Sri T. Veerabhadrayya, learned counsel appearing for the appellants, according to whom the cardinel principles governing grant or refusal of the equitable reliefs of injunctions while exercising judicial discretion were not borne in mind. The questions raised in this case are of far- reaching importance. I am, therefore, of the opinion that this case should be decided by a Division Bench of this court. Place the papers before the Hon'ble the Chief Justice for posting the case before a Division Bench. This appeal coming on for hearing on this the 24th day of February, 1988 before the Hon'ble Mrs. Justice Amareswari and the Hon'ble Mr. Justice Upendralal Waghray, having been referred to Division Bench pursuant to the order of the High Court dt. 19-2-87 and made herein and upon perusing the petition and the decree and judgnent of the lower courts and the material papers in the case and upon hearing the arguments of Mr. T. Veerabhadrayya, advocate for the petitioners and of Mr. C.V. N. Saxtry, advocate for the respondent Nos. 1 to 7 and of Mr. D Venkaiareddy, advocate for the respondents 8 & 9 the court delivered the following Judgment.

(3.) The plaintiffs are owners of lands in R. S. No. 77/1 in Phirangula Dibba of Eiuru town. To the East of the said land, there is a puntha poramboke bearing R. S. No. 69. The case of the plaintiffs is that the said puntha RS No.69 is a pathway leading to their lands and it serves as a passage for ingress and aggress to the adjoining residents and cultivators for men and agricultural purposes. The defendants 2 to 5 have tresspassed upon the puntha about 3 years prior to the suit and constructed thatched houses thereby obstructing the plaintiffs and others from using the puntha as a pathway. They filed the suit for a permanent injunction restraining the defendants from putting up any further constructions is survey No. 69 and for a mandatory injunction to remove the structures already made. The first defendant is the state of Andhra Pradesh represented by the District. Collector, Defendants 2, 3, 4 and 5 are private individuals and defendant No. 6 is the commission or of Eluru Municipality.