Nekkella China Rama Rao vs Rongola Venkata Narsamma
2023 Latest Caselaw 2190 AP

      THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

               SECOND APPEAL No.406 of 2012

JUDGMENT:

A strip of land stated to be a common pathway which

underwent a few constructions resulted in a dispute among

neighbours in which comity among them is the casualty.

2. Defendants in the suit filed this second appeal under

Section 100 C.P.C. Respondents herein are plaintiffs.

3. On 12.07.2021 notices were taken out to respondents.

Thereafter they were served, but none appeared and therefore,

on 19.01.2023 it was recorded that the proceedings would

further progress ex-parte.

4. The matter has been heard before admission.

5. Learned counsel for appellants submitted arguments.

6. The scheme of the law is that between two litigating

parties, on facts and law, two forums are provided. First is the

forum of trial Court and second is the forum of a Court sitting

in first appeal. In the case at hand, O.S.No.178 of 2003 was

heard by learned Principal Junior Civil Judge, Bhimavaram and

by a judgment dated 10.10.2006 the suit was decreed partly.

Dr. VRKS, J S.A.No.406 of 2012

On all the facts and law matter was carried by the defendants to

learned III Additional District Judge (Fast Track Court),

Bhimavaram in A.S.No.48 of 2006. The learned first appellate

Court after due hearing dismissed the appeal and confirmed the

decision of the learned trial Court. The defendants who suffered

twice have come up with this second appeal under Section 100

C.P.C. This provision allows this Court to admit a second

appeal only when the appellants are able to show that the case

involves a substantial question of law. Be it noted, a

substantial question of law is different from a substantial

question of fact vide Kondiba Dagadu Kadam v. Savitribai

Sopan Gujar1. In the said ruling their Lordships further held

that concurrent findings of fact however erroneous cannot be

normally disturbed by the High Court while considering the

appeal under Section 100 C.P.C. Second appeal cannot be

decided merely on equitable grounds. In further elaboration to

the principles, their Lordships of the Hon'ble Supreme Court of

India in Santosh Hazari v. Purushotyam Tiwari2 ruled that

to be substantial, a question of law must arise and must be

(1999) 3 SCC 722

Dr. VRKS, J S.A.No.406 of 2012

debatable and such question must have a material bearing on

the outcome of the case.

7. It is for the appellants herein to demonstrate to this

Court, in the light of the above law, that their submissions here

contained substantial questions of law. To appreciate what the

appellants have mentioned in their grounds of appeal and their

learned counsel submitted by way of oral argument, there is a

need to have a look at as to what transpired before the Courts

below.

8. A few facts are common between the parties and have

never been in dispute. A big tiled house of about 600 square

yards being ancestral property was partitioned among three

share holders by name Sri Nekkella Appanna, Nekkella

Krishnamma and Nekkella Appili. The division was equal.

Thus, each sharer got about an extent of 200 square yards.

9. One of the above referred shares Nekkella Appili had two

sons, namely, Sri Kannayya and Sri Suryanarayana. These two

sons got the property partitioned between them. Thus, each

(2001) 3 SCC 179

Dr. VRKS, J S.A.No.406 of 2012

sharer had got about 100 square yards of property. One of the

sharers Sri Kannayya died and his property was succeeded by

his sons, who are the defendants in the suit and in other words

the appellants here. The other sharer Suryanarayana who got

his share of 100 square yards sold the property by a registered

sale deed dated 03.12.1968 in favour of a person by name

Rongala Appa Rao. The purchaser is now no more. His wife

and their two children are the plaintiffs in the suit and in other

words they are respondents here in the second appeal.

10. It is in the above context of persons and property, the

claims and replies on both sides were disclosed before the trial

Court. Along with the plaint a sketch map as well as three

items of plaint schedule are shown.

11. Property of plaintiffs is described in the sketch map or

plaint plan as 'ABCD'. Adjacent to it on western side there is a

property of defendants depicted as 'ADFE'. For these two pieces

of properties the boundaries on north and south are common.

On northern side it is shown as a common pathway in a width

of 2 feet. On south it is a public way. All of these things are not

in dispute. It is important to notice that for the plaintiffs the

Dr. VRKS, J S.A.No.406 of 2012

property of defendants is abutting west. The western boundary

for the defendants is shown to be another common pathway in a

width of 1½ feet. It is that piece of land which by its length and

breadth it is stated to be 45 square yards that fell in dispute.

12. In the plaint it is stated that, that is a common pathway

and in Ex.A.1-registered sale deed the predecessors in interest

had conveyed rights. For the plaintiffs as well as defendants to

use that as a common pathway item No.2 in the said sale deed

specifically enumerated this. Plaint discloses that much earlier

to this sale deed also that piece of land has been a common

pathway. They alleged that despite their protests and despite

Panchayat issuing notices, the defendants constructed kitchen

and bathroom which they are not entitled to. It is in those

circumstances, they sued with a specific prayer that the said

piece of land depicted as 'EFGH' in the sketch map be declared

as a joint lane for plaintiffs and defendants. They sought for a

mandatory injunction for removal of the structures that were

raised illegally by the defendants in that piece of land. They

further prayed the trial Court to grant them a permanent

injunction restraining the defendants from interfering with that

piece of land by way of any constructions.

Dr. VRKS, J S.A.No.406 of 2012

13. Defendants contested the suit. In their written statement

they disputed the correctness of the plaint plan and very

seriously asserted that there is no 'EFGH' joint lane and that

the plaintiffs and others never exercised any right of way over

that alleged non-existing joint lane. They asserted that their

constructions are within their property and to grab their

property unlawfully suit was filed against them.

14. On the rival pleadings and rival submissions made, the

trial Court recorded the following issues:

1. Whether the plaint plan is correct?

2. Whether any lane shown as EFGH in the plaint plan exist on the western side? If so whether the plaintiffs exercised any right of way in this lane?

3. Whether the plaintiffs are entitled to relief of declaration as prayed for?

4. Whether the plaintiffs are entitled to relief of permanent injunction as prayed for?

5. Whether the plaintiffs are entitled to relief of mandatory injunction as prayed for?

6. To what relief?

15. It invited both sides to sustain their case through

substantive evidence. On plaintiffs' side, oral evidence of PWs.1

Dr. VRKS, J S.A.No.406 of 2012

to 5 and documents in the form of Exs.A.1 to A.12 and Ex.C.1

were brought on record. For defendants, oral evidence of DWs.1

and 2 was brought on record and they did not exhibit any

document.

16. On considering the entire evidence and after analyzing the

evidence in the light of the arguments submitted by both sides,

the learned trial Court recorded that the evidence led by

plaintiffs was very convincing and fully established the entire

case alleged by the plaintiffs. It further stated that apart from

the assertions and counter assertions of parties on both sides it

deputed an advocate commissioner whose report was also

consulted and it found that on taking measurements the

property which was supposed to be about 100 square yards for

defendants but it was found that they were in occupation of

about 145 square yards. It concluded that existence of the

disputed piece of land was established by virtue of Ex.A.1.

Existence of constructions made by the defendants in that piece

of land is a matter that was never in dispute. It found that

those constructions were illegal since defendants made those

constructions not within their own property but in the joint

common pathway. It granted the relief of declaration and relief

Dr. VRKS, J S.A.No.406 of 2012

of mandatory injunction. Recording certain reasons it refused

to grant perpetual injunction. Thus, it decreed the suit partly

and it directed the defendants to pay suit costs to the plaintiffs.

17. In their first appeal these defendants showed their

vehemence in representing their contentions. Learned first

appellate Court dealt with the evidence afresh and recorded that

the conclusions it reached are similar to the conclusions that

were recorded by the learned trial Court. It found no merits in

the appeal preferred by the defendants. Therefore, it dismissed

their appeal and directed them to pay costs althroughout to the

plaintiffs and thus it confirmed the judgment of the trial Court.

18. It is on those concurrent findings on facts the appellants

believed that they have a substantial question of law and

presented this second appeal. In the memorandum of grounds

of appeal they urged the following points and they are extracted

here:

a) Whether the possession of the property be taken away without seeking declaration of the registered sale deed as null and void?

Dr. VRKS, J S.A.No.406 of 2012

b) Whether the easement right in favour of the plaintiffs can be granted contrary to the recitals of the registered document of the defendants?

c) Whether the recitals of plaintiffs documents will over ride the recitals of the defendants documents wherein both plaintiffs and defendants are not the same parties to the documents.

d) Whether an injunction can be granted in favour of the plaintiffs and against the defendants wherein the plaintiffs are not in possession not supported by a document of the schedule property?

19. A perusal of the above points raised would indicate two

things. They by themselves have not shown any principle of law

amounting to a substantial question of law. The grounds urged

only speak about certain documentary evidence adduced by the

defendants and the failure of the Courts below in considering

those documents. Learned counsel for appellants was queried

by this Court as to what were the documents filed by the

defendants in the suit during trial. Learned counsel replied that

no documents were adduced in evidence before the trial Court

and no documents were sought to be adduced even before the

first appellate Court or before this Court. Appendix of evidence

of judgment of the trial Court shows that the defendants did not

Dr. VRKS, J S.A.No.406 of 2012

exhibit any documents. 13 pages judgment of the learned

Principal Junior Civil Judge, Bhimavaram is thoroughly

scanned by this Court and it finds that the learned trial judge at

more than one place stated that defendants did not adduce any

documentary evidence. Thus as a matter of fact all the grounds

of appeal which show about documents of these appellants

being not considered by the Courts below is a vexatious ground

that is urged as such contention is against facts on record.

20. Both the Courts below extensively dealt with the oral

evidence on both sides and recorded that the property for

plaintiffs and the property for defendants was about 100 square

yards. They recorded that defendants claimed to have got about

145 to 150 square yards of property from their father Nekkella

Kannayya. They recorded that they did not file any document

indicating so much extent of property. They further recorded

that defendants in their evidence admitted about receiving a

notice from Gram Panchayat stating that it was a joint pathway

and they should not make any constructions. They further said

that during the trial defendants contended that after receiving

such notice they appeared before the Gram Panchayat and the

Gram Panchayat was convinced of their argument and therefore

Dr. VRKS, J S.A.No.406 of 2012

passed a resolution withdrawing the notices and permitting

them to raise their constructions. In their evidence defendants

admitted that they did not file any such copy of resolution and

they did not examine anyone from the Panchayat on that

aspect. All evidence on facts was found by the Courts below

that beyond the property owned by them the defendants made

their constructions and they made their constructions in the

suit disputed 'EFGH' and they recorded that this 'EFGH' is a

joint pathway for both parties and defendants raised kitchen

and bathroom over that property which they were not entitled

to. Both the judgments of Courts below indicate full

appreciation of facts and full appreciation of evidence. The

conclusions reached are supported by cogent reasons. In fact

no questions of law were urged before both the Courts below.

Before this Court also no question of law was shown in the

memorandum of grounds of appeal. Therefore, the contentions

of the appellants that the recitals in their registered documents

were not considered by the Courts below is incorrect and cannot

be countenanced.

21. During the course of arguments, learned counsel for

appellants submit that the appellants made constructions by

Dr. VRKS, J S.A.No.406 of 2012

obtaining approval of a building plan and if they had violated,

the power is vested with the Gram Panchayat by virtue of

Section 11 of the Andhra Pradesh Panchayat Raj Act, 1994 and

it is not for the plaintiffs to question them. This contention is

considered in the context of the material on record and it is

found that though at the trial defendants claimed that they had

an approved building plan and raised the constructions in

accordance with it, the fact remained that they never exhibited

such approved building plan before the Courts below. Thus, it

is a clear case of either plaintiffs' falsehood or suppression of

material evidence giving rise to adverse inference against them

who suppressed such evidence. Since there was no approved

building plan, Gram Panchayat by itself may not be knowing

about any constructions on part of defendants. Precisely, it is

for that reason plaintiffs complained to the Gram Panchayat

and it was admitted by defendants during the course of their

evidence that Gram Panchayat issued notices to them not to

proceed with constructions. It is undisputed that defendants

did not stop their constructions and they went ahead. Thus,

they neither cared the notices from Gram Panchayat nor cared

their neighbours, who rightfully claimed that it was not within

Dr. VRKS, J S.A.No.406 of 2012

the realm of defendants to encroach and swallow a common

pathway depriving the plaintiffs from their right of user. Failure

of Gram Panchayat in taking any further action can never

deprive a rightful holder of rights over property from seeking an

appropriate relief before civil Courts. There is absolutely no

merit in what is argued by learned counsel for appellants.

22. This Court finds no questions of law much less

substantial question of law involved in this appeal. Appellants

fail the mandate laid down in Section 100 C.P.C.

23. In the result, this Second Appeal is dismissed at the stage

of admission. There shall be no order as to costs.

As a sequel, miscellaneous applications pending, if any,

shall stand closed.

_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 21.04.2023 Ivd

Dr. VRKS, J S.A.No.406 of 2012

THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

SECOND APPEAL No.406 of 2012

Date: 21.04.2023

Ivd

Dr. VRKS, J S.A.No.406 of 2012