NETI GOPALAKRISHNA GOKHALE Vs. BRAHMANDAM NARASIMHAM

JUDGEMENT

(1.) These two appeals arise out of O.S. No. 73 of 1950 on the file of the District Munsif's Court, Tenali, a suit filed by the ist respondent for a permanent injunction restraining the 4th defendant from assigning or otherwise alienating the suit site and "for a mandatory injunction directing defendants 1 to 3 to remove the encroachment. over the said site.

(2.) To appreciate the facts and the contentions of the parties, it will be convenient and necessary, at the outset, to notice the topography of the locality in question wherein the impugned encroachment is alleged to have been made. In Tenali town, in Ward No. 7 one of the main roads Satyanarayana Park Road runs from north to south. An equally important road called Andhra Ratna Road runs from west to east. The plaintiff's house is situated at the corner which the Andhra Ratna Road makes with Satyanarayana Park Road. Satyanarayana Park Road abuts the plaintiff's house on the east whereas the Andhra Ratna Road abuts it on the south. The width of the Andhra Ratna Road is 57 feet and that part of the road abutting the permises of the plaintiff is about 165 feet. The plaintiff has been using these premises for manufacturing Olu Paints since about 15 years prior to the suit. Except for a thatched shed, the southern portion of the plaintiff's house is an open site. South of that open site and abutting the Andhra Ratna Road, the plaintiff erected a compound wall which runs from west to east. In the middle of the compound wall, there is a gate of the width of 5 feet leading into the Andhra Ratna Road. He has also another egress on the eastern side of his house to Satyanarayana Park Road. There was a big tree marked X in the plaint plan at the junction of the two roads. About 10 years prior to the filing of the suit, defendants 1 and 2 and others, who were members of the Devi Bhakta Brundam, erected a small mandir ABCD with brick and lime and a small pial- E-1, F-1, G-1, and H-1 shown in the plan." The said mandir and the pial were built under the shade of the said tree. Subsequently, they made further encroachments both on the east and on the west of the first encroachment, shown in the plan as EFGH and IJKL. Tne next step was that the tree was cut off and a shed was constructed with corrugated zinc sheets with eaves extending on all sides shown as TUVW in the plan and the floor of the entire area L-1-EFGHJK was slabbed. Later on, they levelled up the ground MNOP and loose slabs were placed over the surface QMSR. The said encroachment is about 60 feet cutting the Andhra Ratna Road near the premises of the plaintiff into two leaving a road of the width of 5 feet 6 inches between the southern boundary wall of the plaintiff and the encroachment. The encroachment into the western part of Satyanarayana Park Road is about 6 feet 9 inches. The plaintiff alleged that the said unauthorised encroachment obstructed his access to the road and light and air to his premises, destroyed his right of prospect and became a source of several 'animosities'. He further pleaded that the said encroachment was a public nuisance inasmuch as it permanently blocked the use of the Andhra Ratna Road to its entire width, prevented its improvement, proved dangerous to public traffic and became a rendezvous for all bad characters. Alleging further that the 4th defendant, the State, in whom the ownership of the site vested had no right to assign the site and that the 3rd defendant charged with the duty of removing the encroachments failed to do its duty, the suit was filed for a permanent injunction restraining the 4th respondent from alienating by gift, sale or otherwise the site marked OPHTUVWN in the plan and for a mandatory injunction directing defendants i to 3 to remove the encroachment over OPHTUVWN including all superstructures.

(3.) Defendants 1 and 2 in their written statement stated that the said encroachments were made about ten years ago with the knowledge of the authorities concerned and that the plaintiff also had no objection to the same and indeed he took interest and contributed to the various functions and festivities of the Devi Mandir. They also denied that the said construction had, in any way, obstructed the plaintiff's access or violated any of his rights or that it was a public nuisance. They raised pleas that the suit was not maintainable without the consent of the Advocate-General and that, in any event, the plaintiff was estopped by his laches and aquiescence to ask for the discretionary remedy of mandatory injunction.