Kuchi Ramakrishna Rao vs C.Peda Bhadraiah Others
2021 Latest Caselaw 3976 AP

                                                                         MVR,J
                                                              S.A.No.657 of 2000
                                     1

               HON'BLE SRI JUSTICE M. VENKATA RAMANA

                     SECOND APPEAL No.657 of 2000
JUDGMENT:

The fourth defendant is the appellant. Respondents 1 to 3 were

plaintiffs 2 to 4 respectively.

2. The parties hereinafter are referred to as were arrayed in the

suit.

3. The dispute is in relation to use of a rastha shown as 'AB' in the

plaint plan. The respondents are all residents of Aniganglapadu village

and so also the appellant. The respondents have lands in Thalluru.

4. Their contention is that there is a rastha leading from

Aniganglapadu village proper to Muniyeru main canal and that the

Government constructed a bridge upon this canal, which is to the east

of the land of the first defendant. Claiming that this rastha is the

access for them to take their carts, ploughs etc., to their lands, which

are located to the northwest of the defendants lands, with which the

defendants tried to interfere, the plaintiffs laid the suit for permanent

injunction against them.

5. The main contestant in the suit was the fourth defendant, who is

the appellant herein. Though defendant No.11 filed the written

statement and whereas other defendants remained ex parte at the suit

stage, the 11th defendant did not participate in the trial.

6. The main contest of the fourth defendant at the trial was that

there is a donka running from east to north, taking recourse towards

northeast and then to the east, that separates the lands of Thalluru and MVR,J S.A.No.657 of 2000

Anigandlapadu. He further contested that the lands of the plaintiffs are

far beyond the north of this donka and that, there is a passage for them

running all along poramboke land, which could meet the requirements

of the plaintiffs. Thus, the fourth defendant set up an alternative

passage or rastha for the plaintiffs to make use of, to reach their lands

for their purpose.

7. On the pleadings, the trial Court settled the following issues:

1. Whether the plaintiffs are entitled to the permanent injunction as prayed for?

2. To what relief?

8. At the trial, on behalf of the plaintiffs, P.W.1 to P.W.8 were

examined and Ex.A1 as well as Ex.C1 to Ex.C5 were relied on. The

fourth defendant and the defendant No.10 examined themselves as

D.W.1 and D.W.2 respectively and who relied on Ex.B1 and Ex.B2 at the

trial in support of their contention.

9. Learned trial Judge upon elaborate discussion of the oral and

documentary evidence particularly having regard to the stand of the

fourth defendant at the trial, decreed the suit by the judgment dated

30.03.1991 in O.S.No.74 of 1984.

10. The fourth defendant carried the matter in appeal in A.S.No.3 of

1999. The learned appellate Judge (Senior Civil Judge, Nandigama) also

agreed with the findings recorded by the learned trial Judge confirming

the decree and judgment in the suit by the decree and judgment dated

07.02.2000. In these circumstances, the present second appeal is

preferred by the fourth defendant.

MVR,J S.A.No.657 of 2000

11. Sri V.S.Prasad, learned counsel for Sri V.S.R.Anjaneyulu, learned

Senior Counsel for the appellant and Sri P.Prabhakar Rao, learned

counsel for the respondents addressed arguments.

12. This second appeal was admitted on 22.09.2000 on the following

substantial questions of law:

"1. Whether the suit for mere permanent injunction restraining the appellants/defendants from interfering with the alleged right of way as marked 'AB' in the plaint plan and for other reliefs without asking for a relief of declaration?

2. Whether the Courts below are correct in granting a decree for permanent injunction in favour of the plaintiffs without recording a finding that the plaintiffs have established their right either as a easement of necessity or the right of easement by prescription in respect of suit passage?

3. Whether the suit filed by the plaintiffs in the present forum is maintainable?"

13. The parties to this appeal and other defendants have lands at

Thalluru and Anigandlapadu villages. Ex.A1 is the plaint plan showing

the location of the track or rastha claimed by the respondents as 'AB".

This plan depicts this rastha to pass through the lands of the

defendants.

14. The main objection of the fourth defendant is that the plaintiffs

have no right to use this land, particularly on southern side. At

particular point of time in the course of trial, a memo was also filed on

behalf of the fourth defendant requesting the trial Court to decree the

suit, which is Ex.C1. However, he resiled from such stand and obtained

leave of the trial Court for filing an additional written statement.

MVR,J S.A.No.657 of 2000

15. The evidence let-in on behalf of the plaintiffs through all their

witnesses is supporting their claim and particularly referring to location

of the rastha shown as 'AB' in the plaint plan. More important among

them is the testimony of P.W.2, who is the vendor of the fourth

defendant. He confirmed location of this rastha, since time immemorial

and its usage by the villagers. No material contra to such version of

P.W.2 was brought out at the trial on behalf of the fourth defendant.

16. The entire defence of the fourth defendant is suggesting that

there is alternative passage in the nature of donka, which is running to

the south of their lands abutting and all along canal shown as 'PQR' in

Ex.C5 plan filed by the Commissioner upon his second visit. This donka

is far away from their lands according to the plaintiffs and that it is not

convenient rastha to reach their lands.

17. At the same time, the fourth defendant himself as D.W.1

admitted location of the rastha claimed by the plaintiffs and also in his

additional written statement. However, he claimed that the plaintiffs

cannot use this passage particularly on the west as a matter of right,

but could use the same with his permission.

18. Basing on the material and evidence before it, the trial Court

agreed with the contention of the plaintiffs holding that there is a

passage both on south and west of the land of the fourth defendant

shown in Ex.A1 plaint plan and that it is confirmed in Ex.C5 plan filed by

the Commissioner. While rejecting the version of the fourth defendant

basing on Ex.B1 village plan, which is showing the location of the donka

claimed by the fourth defendant being not a substitute for the plaintiffs

to make use of, learned trial Judge decreed the suit.

MVR,J S.A.No.657 of 2000

19. Learned appellate Judge also upon reappraisal of the evidence,

agreed with the findings so recorded by the learned trial Judge and

further held that this passage is existing since time immemorial, which

is being used by the villagers. Learned appellate Judge also took into

consideration the fact that except fourth and eleventh defendants,

other defendants, who admittedly have the lands on either side of this

passage did not participate in the trial and who choose to remain ex

parte. Holding that the plaintiffs could take their carts and cattle

through this passage and which they have been using, learned appellate

Judge recorded his findings, dismissing the appeal.

20. Therefore, when there are concurrent findings in this respect

consistently recorded by both the Courts below, sitting in second

appeal, this Court cannot lightly interfere in this respect. When

discretion was exercised by the learned trial Judge to grant relief of

permanent injunction in the manner requested and against the

defendants, particularly the fourth defendant, when it was also

confirmed in the appeal, the question of reconsideration of the matter

in terms of Section 100 CPC by this Court cannot arise.

21. Even otherwise, apparently it was never the defence of the fourth

defendant at the trial questioning the nature of the suit, for want of

relief of declaration nor any issue relating to declaration or

easementary rights either of necessity or prescription was considered at

the trial nor was settled.

22. Therefore, since the entire case is based on question of fact, no

questions of law as such are involved in this matter, much less MVR,J S.A.No.657 of 2000

substantial questions of law including those raised on behalf of the

fourth defendant in this second appeal.

23. This Court is satisfied that there are no such substantial questions

of law now to consider in this second appeal. Consequently, this second

appeal has to be dismissed confirming the decrees and judgments of

both the Courts below.

24. In the result, this second appeal is dismissed confirming the

decrees and judgments of both the Courts below. No costs. Interim

orders if any, stand vacated. All pending petitions, stand closed.

___________________ M. VENKATA RAMANA, J Dt: 07.10.2021 Rns MVR,J S.A.No.657 of 2000

HON'BLE SRI JUSTICE M. VENKATA RAMANA

SECOND APPEAL No.657 OF 2000

Date:07.10.2021

Rns MVR,J S.A.No.657 of 2000