Polu Madhavi Latha vs Vintha Prabhakar Reddy
2023 Latest Caselaw 275 AP

        HONOURABLE SRI JUSTICE SUBBA REDDY SATTI

                SECOND APPEAL No.457 of 2022

   Between:

   Polu Madhavai Latha, W/o Bala Krishna
   Reddy, aged about 51 years, Hindu,
   Housewife, R/o Telaprolu village, Unguturu
   Mandal, Krishna District.
                                       ... Appellant/Plaintiff.
              Versus

   Vintha Prabhakar Reddy, S/o Gurava Reddy,
   aged 48 years, Hindu, Cultivation, R/o
   Gannavaram village and Mandal, Krishna
   District and two others.
                               ... Respondents/Defendants.

Counsel for the appellant       : Dr. D.Venkata Ramana Reddy
Counsel for respondents         : ---

                            JUDGMENT

Plaintiff in the suit filed the above second appeal

aggrieved by the judgment and decree dated 18.07.2022 in

A.S.No.65 of 2019 on the file of Additional Chief Metropolitan

Magistrate-cum-Senior Civil Judge, Gannavaram confirming

the judgment and decree dated 06.03.2019 in O.S.No.126 of

2014 on the file of Principal Junior Civil Judge, Gannavaram.

2. For the sake of convenience, the parties to this

judgment are referred to as per their array in the plaint.

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3. Plaintiff filed suit O.S.No.126 of 2014 seeking against

the defendants seeking perpetual injunction.

4. The case of the plaintiff in brief is that, plaintiff is the

owner of plaint schedule property of an extent of Ac.9.59

cents in R.S.No.1155/1, 1155/2, 1155/3 of Telaprolu village,

Unguturu Mandal. Plaintiff purchased an extent of Ac.2.46

cents in R.S.No.1155/3 under a registered sale deed dated

11.03.2005. Grandmother of plaintiff gifted Ac.6.98 cents in

R.S.No.1155/1 and Ac.0.15 cents in R.S.No.1155/2 through

a registered gift deed dated 23.07.2008. Towards south-west

corner of plaint schedule property, a Donka is situated to

reach the plaint schedule property. Towards south of said

Donka, defendants are having land. The defendants

encroached the said Donka and they are enjoying the same.

On 23.12.2014, defendants tried to take away their cattle and

tractor across the lands of plaintiff, when the crop is existing.

When the husband of plaintiff questioned, they replied that

they had right of way to reach their fields and beat the

husband of plaintiff and removed survey stones. In view of

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proclamation of defendants in the village, suit was filed for

permanent injunction.

5. Defendants filed written statement and contended

interalia that there is a Donka in between the lands of

plaintiff and defendants and the said Donka is situated on

Southern side of plaintiff's land and towards Northern side of

defendants' land. Plaintiff with an intention to grab the

Donka is not allowing the defendants to use the said Donka

and is causing obstruction. The said Donka is only passage

to defendants to reach their lands. Defendants never

occupied the said Donka and never tried to interfere with the

possession of plaintiff over the property. Since the plaintiff is

raising objection regarding Donka, defendants submitted

application through mee-seva seeking survey and paid

necessary charges on 31.12.2014, however, plaintiff did not

cooperate with defendants to conduct survey and eventually,

prayed to dismiss the suit.

6. Basing on the pleadings, trial Court framed the

following issues:

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(1) Whether the plaintiff is in possession and enjoyment of suit schedule property?

(2) Whether the plaintiff is entitled to permanent injunction as prayed for?

(3) To what relief?

7. On behalf of plaintiff, plaintiff examined herself as

P.W.1 and got examined P.Ws.2 and 3. Exs.A-1 to A-9 were

marked. On behalf of defendants, 2nd defendant examined

himself as D.W.1 and 1st defendant examined himself as

D.W.2 and Ex.B-1 was marked. C.Ws.1 and 2 were examined

and Exs.C-1 to C-3 were marked.

8. Trial Court by judgment and decree dated 06.03.2019

dismissed the suit. Aggrieved by the same, plaintiff filed

appeal A.S.No.65 of 2019 on the file of Additional Chief

Metropolitan Magistrate-cum-Senior Civil Judge,

Gannavaram. Lower appellate Court being final factfinding

Court on consideration of both oral and documentary and

legal aspects, dismissed the appeal by judgment dated

18.07.2022. Aggrieved by the same, the present second

appeal is filed.

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9. Heard Dr.D.Venkata Ramana Reddy, learned counsel

for appellant.

10. Learned counsel for the appellant would submit that

plaintiff proved title over the schedule property, however,

defendants having pleaded right of passage, failed to prove

the same. He also would submit that the Court below failed

to consider the admissions of D.Ws.1 and 2.

11. Suit is filed for injunction simplicitor. As per the

material available on record, there is no dispute regarding

plaint schedule property, except Donka situated on Southern

side of plaintiff's land and towards Northern side of

defendants' land. According to plaintiff, the said Donka is

part and parcel of plaint schedule property and the same was

denied by defendants. According to the evidence of C.Ws.1

and 2 and reports Exs.C-1 and C-2, said Donka is a

government land. It is also clear from Ex.C-2, that C.W.1

with the assistance of Mandal Surveyor got fixed the

boundaries in the presence of both parties to the suit and the

said disputed Donka is not form part of plaint schedule

property. No objections were filed by plaintiff regarding fixing

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of boundaries. The evidence of C.W.1, advocate commissioner

is clear that disputed Donka is situated between the lands of

appellant and respondents.

12. Though the learned counsel for appellant would submit

that the Court below failed to consider the evidence of D.Ws.1

and 2 in proper perspective. A perusal of record available on

record, discloses that apart from plaintiff and defendants,

the other farmers in the vicinity have been using the said

Donka for their ingress and egress to reach their lands.

Plaintiff cannot rely upon the weakness in the case of

defendants. Even as per Ex.A-2 gift deed, boundaries on

western, northern and southern side are shown as Donka

and on eastern side, it is the land of plaintiff. In the absence

of any material to prove that Donka is part and parcel of

plaint schedule property, the concurrent findings of fact

recorded by the Courts below regarding Donka and usage of

Donka by all the farmers, do not require any interference of

this Court under Section 100 of CPC.

13. This Court while exercising jurisdiction under Section

100 of the CPC must confine to the substantial question of

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law involved in the appeal. This Court cannot re-appreciate

the evidence and interfere with the concurrent findings of the

Court below where the Courts below have exercised the

discretion judicially. Further the existence of substantial

question of law is the sine qua non for the exercise of

jurisdiction. This Court cannot substitute its own opinion

unless the findings of the Court are manifestly perverse and

contrary to the evidence on record. Moreover, unless the

appellant establishes that the Courts below mis-read the

evidence and misconstrued the documents, the High Court

normally will not interfere with the findings of fact recorded

by the Courts below.

14. The findings of the fact recorded by the Courts below

are based on appreciation of evidence. Unless, the appellant

demonstrates that substantial question of law in the second

appeal, interference of this Court, in exercise of jurisdiction

under Section 100 of CPC does not warranted. No question of

law much less substantial questions of law arose in the

appeal. Hence, the second appeal is liable to be dismissed,

however, without costs.

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15. Accordingly, the second appeal is dismissed at

admission stage. No costs.

As a sequel, all the pending miscellaneous applications

shall stand closed.

_________________________ SUBBA REDDY SATTI, J 20th January, 2023

PVD