Angadi Pennaiah vs Chapari Anjaiah
2021 Latest Caselaw 2770 AP

            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

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

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

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

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

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

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

HON'BLE SRI JUSTICE M.VENKATA RAMANA

SECOND APPEAL No.671 of 2000

Dt: 30.07.2021

RR