Syamala Venugopala Reddy vs Pallapolu Sambi Reddy
2022 Latest Caselaw 8081 AP

HIGH COURT OF ANDHRA PRADESH AT AMARAVATHI MAIN CASE : S.A.No.476 of 2022 PROCEEDING SHEET Sl. Date ORDER OFFICE No. NOTE

28.10.2022 SRS,J S.A.No.476 of 2021 Plaintiff being the appellant filed the present second appeal against the judgment and decree, dated 15.07.2022 in A.S.No.16 of 2018 on the file of the Senior Civil Judge, Mangalagiri, confirming the judgment and decree, dated 28.02.2018 in O.S.No.18 of 2014 on the file of the Principal Junior Civil Judge, Mangalagiri.

Suit is filed by the plaintiff for declaring that the plaintiff has got joint easementary rights of passage through plaint B schedule passage cum canal shown as ABCD in plaint plan to exercise his right of access from eastern side Donka to reach plaint A schedule land, permanent injunction restraining the defendants 1 to 6 and their men etc., from causing obstruction to joint easmentary rights of the plaintiff in ABCD passage cum canal with costs.

The trial Court dismissed the suit. Aggrieved by the same, plaintiff preferred A.S.No.16 of 2018 and the same was also dismissed. Therefore, the present Second Appeal is filed by the plaintiff.

Heard.

ADMIT.

The following substantial questions of law arise for consideration.

1) Whether both the Courts failed to see that defendants 1 to 6 admitted about the existence of canals and joint pathway, on which plaintiff claimed right of easement of passage, which is shown as B schedule and pleaded that pathway and canals are not in existence now but did not plead that right of plaintiff about easement got extinct that the Courts ought to have held that unless the right of passage claimed by plaintiff is extinct he has right to continue the same?

2) Whether both the Courts ought to have framed as issue whether the right of easement of passage claimed by plaintiff got extinguished by non usage for a continuous period of more than 20 years as contemplated under Section 47 of Indian Easement Act 1882 and ought to have dwelt upon the said aspect and should have given a finding on it and committed serious error in not deciding the same?

______ SRS,J KA