HON'BLE SRI JUSTICE M.VENKATA RAMANA
SECOND APPEAL No.671 of 2000
JUDGMENT:
The plaintiff is the appellant.
2. The dispute is in respect of a house site in Yerragudi Panchayat of Anantapur District. It is described in the plaint schedule as under:
"House site situated in the 4th ward of Yerragudi Panchayat limits within the R.D. of Anantapur S.R.D. of Kalyandurg and with the following description:
Measuring East to West - 8 yards; North -South - 11 yards bounded by East: Rastha West: House of plaintiff and the foundation North: House of Chippagiri Eswarappa South: Chippagiri Nasareddi's house"
3. The respondent is the neighbour of the appellant admittedly living in the house belonging to his brother Sri Chippagiri Chitteppa. The appellant is claiming the entire property shown as 'ABCD' in the plaint plan. It consisted of a house with a foundation or basement raised to the north of this house. Abutting this house and the basement to the east, there is a vacant site. To the north of this basement and the vacant site, the house of the defendant is located. Undisputedly, a rastha from Beluguppa to Yerragudi is passing in front of this house towards east.
4. The appellant is claiming that he has purchased this 'ABCD' property under a registered sale deed dated 19.04.1978 from one Sri B.P.Narayana Reddy and being in possession and enjoyment of the same. The complaint of the appellant leading to institution of the suit was that the respondent attempted to encroach upon his site without any manner MVR,J S.A.No.671 of 2000 2 of right, title and interest, by raising a wooden bunk and storing stones. On such premise, the appellant sought the relief of permanent injunction restraining the respondent from interfering with his peaceful possession and enjoyment of the plaint schedule site ('ABCD' in the plaint plan).
5. The respondent resisted the claim of the appellant on the ground that he did not have any right, title and interest to the property in question. He contend further that the open site towards east of his house and that of the respondent is not at all the property of the appellant nor is he the owner of the same, who has only a right to access to his house through it. It is a common space according to the respondent intended for free passage and as ingress and egress for their respective houses and that it did not exclusively belonged to the appellant. He also claimed that he is making use of this open space, upto the rastha on the east and the manner of use and occupation of this open site cannot be questioned by the appellant.
6. Contending that he had purchased the house as well as the open space under the registered sale deed dated 09.04.1981 from the original owner Sri Chapiri Chitteppa, son of Sri Chapiri Narigappa and Smt. Marekka, Wife of Sri C.Ramappa, Muppalakunta village, he asserted his claim.
7. The learned trial Judge, settled the following issues for trial:
1. Whether the plaintiff is entitled for permanent injunction as prayed for?
2. To what relief?
8. The parties went to trial where the appellant examined himself as P.W.1 and two other witnesses in support of his claim being P.W.2 and MVR,J S.A.No.671 of 2000 3 P.W.3 while relying on Ex.A1 to Ex.A3. The respondent examined himself as D.W.1 while relying on the testimony of D.W.2 to D.W.4 apart from Ex.B1. A commissioner was appointed during trial and his report as well as plan are Ex.C1 and Ex.C2 respectively.
9. Basing on the material and evidence, holding that the appellant purchased the property upto the rastha towards east under Ex.A1 sale deed, the learned trial Judge held that the open site to which the respondent claimed his interest belonged to the appellant. A Relief of permanent injunction was granted by decree and judgment dated 11.05.1994 in O.S.No.32 of 1988, in favour of the appellant and against the respondent.
10. The respondent presented A.S.No.19 of 1999 which was heard by the Court of the learned Additional Senior Civil Judge, Ananthapur. Having regard to the material on record and the evidence, observing that there is an old doorway opening into the open space in question, basing on the report of learned Commissioner- Ex.C1 and his plan-Ex.C2, the learned appellate Judge disagreed with the findings of the learned trial Judge. Consequently, upon allowing the appeal the suit was dismissed, holding that the appellant did not have exclusive title or possession to the site in dispute, which is abutting the rastha on the east and houses of these parties and also in failing to seek relief of declaration and mandatory injunction for closure of the doorway opening into the site.
11. In this second appeal Sri P.Chakravarthy, learned counsel, for Sri O.Manohar Reddy, learned counsel for the appellant, mainly contended that the learned trial Judge appreciated the material on record and the evidence in proper perspective and whereas the learned appellate judge MVR,J S.A.No.671 of 2000 4 considered such aspects which are not relevant. It is further contended by the learned counsel for the appellant that the report of the commissioner and his plan have not been properly appreciated and allowing the appeal for want of relief of mandatory injunction, is erroneous. Calling for interference in this second appeal, Sri P.Chakravarthy, learned counsel for the appellant, requested to restore the decree of the trial Court accepting the findings recorded in the judgment therein.
12. Sri N.Ranga Reddy, learned counsel, though appeared for the respondent, did not appear when this matter is heard.
13. This second appeal is admitted on the following substantial questions of law.
"1. Having regard to the recitals in Ex.A1 wherein the boundaries and measurements have been specifically given and coupled with the commissioner report, whether the lower appellate Court acted illegally in dismissing the suit for injunction without considering the recitals in Ex.A1?
2. In a suit for permanent injunction basing on title to the property whether it is obligatory on the part of the plaintiff to file suit for declaration of title only on the ground that the defendant has denied the title to the property?
3. Whether the suit for permanent injunction in respect of a site is not maintainable without seeing the relief of mandatory injunction for closure of the doorway to the disputed site?"
SUBSTANTIAL QUESTIONS OF LAW: DETERMINATION:
14. The appellant under Ex.A1 sale deed dated 19.04.1978 purchased a house site within the boundaries mentioned in the plaint schedule. As per the recitals in Ex.A1 and the property described therein, its extent is upto the rastha from Beluguppa, measuring east-west 19 yards and north-south 11 yards. There is no dispute with reference to measurements north-south and the question is in relation to length of this property claimed by the respondent in 'ABCD'. From the pleadings and the MVR,J S.A.No.671 of 2000 5 evidence on record, apparently the dispute is confined only in respect of this open site claimed by the respondent in front of his residential portion as well as foundation laid by the appellant, which is measuring 8 yards east-west and 11 yards north-south.
15. The report of the learned commissioner clearly depicted that a door is opening into South and thus leading to the vacant site between the house of the appellant and the rastha towards the east going from Beluguppa to Yerragudi. The learned commissioner found that this door is an old one. A wooden bunk was also put up by the side of the house of the respondent in the open site by him.
16. The observations of the learned commissioner also reflect that there is an open site of about 10 ft. or 11. ft. between the houses of these parties. Thus, the distance between the foundation laid by the appellant and the rastha from Beluguppa to Yerragudi being 18 ft. or 6 yards is interdicted by the structures raised by the respondent.
17. The learned appellate judge considered the statements of the respondent as P.W.1 and also the report of the learned commissioner in Ex.C1.
18. The observations of the learned commissioner are not disputed at any stage. Measurements or boundaries, relating to the house of the appellant as was considered by the learned trial Judge basing on Ex.A1 sale deed, were rightly held to be immaterial by the learned appellate Judge in the presence of the observations of the learned commissioner.
MVR,J S.A.No.671 of 2000 6
19. Therefore, in the above circumstances, the observations of the learned trial Judge were held being incorrect by the learned appellate Judge.
20. Finding of the learned trial Judge that the doorway was opened recently basing on the testimony of P.W.3, was not accepted by the learned appellate judge. This situation of this property was in July, 1988. Therefore, when the suit was laid on 13.04.1988 in the trial court, possibility of location of this doorway on the south can well be perceived as rightly observed by the learned appellate judge. Opening the door into this site is a clear overt act explaining how this site in dispute was put to use by these parties on the date of the institution of the suit. If the claim of the appellant has to be accepted basing on Ex.A1 sale deed, in the above circumstances, he should have laid a suit for declaration of his right and title to the plaint schedule property, while also requesting a mandatory injunction to close the above doorway at the house of the respondent. Filing a mere suit for injunction against the respondent is not proper.
21. Therefore, on consideration of the material, it is held that the appellate Court is right in rejecting the claim of the appellant with reference to the property claimed by him under Ex.A1 sale deed. The appellate Judge is also right in holding that a suit for mere injunction could not have been laid, in the given facts and circumstances, by the respondent against the appellant and should have sought relief of declaration as well as mandatory injunction. As such, no substantial questions of law are made out, muchless the one raised by the appellant.
MVR,J S.A.No.671 of 2000 7
22. Therefore, in the circumstances, the decree and judgment of the appellate Court have to be confirmed finding no reason to interfere.
23. In the result, the Second Appeal is dismissed confirming the decree and judgment of the appellate Court. No costs.
As a sequel, pending miscellaneous petitions, if any, stand closed. Interim orders, if any, stand vacated.
________________________ JUSTICE M.VENKATA RAMANA Dt: 30.07.2021 RR MVR,J S.A.No.671 of 2000 8 HON'BLE SRI JUSTICE M.VENKATA RAMANA SECOND APPEAL No.671 of 2000 Dt: 30.07.2021 RR