Gadhamsetty Balakrishna vs Gadhamsetty Lakhminarayana
2023 Latest Caselaw 276 AP

        HONOURABLE SRI JUSTICE SUBBA REDDY SATTI

                SECOND APPEAL No.435 of 2022

   Between:

   Gadhamsetty Balakrishna, S/o G.Thimmaiah
   Setty, age 73 years, Occ: Hotel Business, R/o
   5-223, Station Road, Gooty RS, Gooty Mandal,
   Anantapur District.
                                         ... Appellant/Plaintiff.
               Versus

   Gadhamsetty Lakshminarayana, S/o late
   Rama Subbaiah, age 50 years, Occ: Kirana
   Shop, R/o 5-224, Station Road, Gooty RS,
   Gooty Mandal, Anantapur District.
                                    ... Respondent/Defendant.

Counsel for the appellant       : Sri N.Chandra Sekhar Reddy
Counsel for respondent          : Sri G.R.Sudhakar

                            JUDGMENT

Plaintiff in the suit filed the above second appeal

aggrieved by the judgment and decree dated 24.02.2022 in

A.S.No.6 of 2019 on the file of VI Additional District Judge,

Ananthapuramu at Gooty confirming the judgment and

decree dated 19.11.2018 in O.S.No.26 of 2010 on the file of

Junior Civil Judge, Gooty.

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

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

SRSJ, SA No.435 of 2022

3. Plaintiff filed suit O.S.No.26 of 2010 to declare that AB

wall according to plaint plan is exclusive wall of plaintiff and

not joint wall; to grant mandatory injunction directing the

defendant to remove RCC pillars partly laid in the said wall;

to grant permanent injunction restraining the defendant and

his men from making use of said AB wall in any manner for

their use as a consequential relief of declaration and to award

damages etc.

4. In the plaint, it was contended interalia that plaintiff is

rightful and lawful owner of plaint schedule property. Plaintiff

purchased the property under a registered sale deed dated

06.06.2007. The defendant, a distant relative to plaintiff,

owned land on the Northern side of plaint schedule property

and he purchased the same on 12.05.2009. The wall shown

as AB is the exclusively wall of plaintiff and in the sale deed,

it was clearly mentioned that southern side wall is joint wall.

In the boundaries of schedule property, it was mentioned that

on the southern side of plaintiff's house, Menta Krishaiah's

house is situated and the said Krishaiah did not have any

ownership over the Northern side wall of plaintiff's house.

SRSJ, SA No.435 of 2022

Defendant started construction, and in that process, he

started to remove the plaintiff's northern wall and planning to

put concrete pillars in the said northern wall and thereby

tried to convert the exclusive wall of plaintiff as a joint wall.

Neither the defendant nor his predecessors have any right

over the said wall and hence, filed the suit for the reliefs

stated supra.

5. Defendant filed written statement and contended

interalia that he purchased the open site shown as 'ABCD' in

the written statement plan under a registered sale deed dated

12.05.2009, which measures East-West 10 feet and North-

South 60.5 feet. Earlier, a house exists bearing assessment

No.2003 and door No.2118. The vendor of defendant

purchased the same under a registered sale deed dated

14.02.1962. The plaintiff's house is southern boundary to

defendant's ABCD open site. Plaintiff's northern wall is not

in uniform and it is in the form of BEHI and AEFI as shown

in written statement plan. BEHI is abutting wall to the

defendant's remaining BEFG wall. AEFJ wall of plaintiff's

house is constructed encroaching 14" x 10.5 feet into the

SRSJ, SA No.435 of 2022

defendant's open site. The portion at AEFJ is elevated

construction of plaintiff's house with its BEHI northern wall.

As per the sale deed of plaintiff, north-south measurement of

plaintiff's house is 13 feet, but the original measurement on

north-south is 14 feet. Defendant filed counter claim stating

that plaintiff constructed his Northern wall which is shown as

AEFJ by encroaching into 14" x 10.5 feet to defendant's open

site. Therefore, the plaintiff is entitled for declaration of his

title over the said 14" x 10.5 feet which is encroached by the

plaintiff by constructing AEFJ wall.

6. To the said counter claim, plaintiff filed written

statement/rejoinder and contended that defendant

purchased the property subsequent to construction made in

suit schedule property and has no right to plead

encroachment by plaintiff. Defendant has no right to seek

title over the same and prayed the Court to dismiss the

counter claim.

7. Basing on the pleadings, trial Court framed the

following issues:

SRSJ, SA No.435 of 2022

(1) Whether the plaintiff made construction of his house within the measurements according to his sale deed?

(2) Whether the defendant made encroachment into the land of the plaintiff?

(3) Whether defendant is entitled for the counter claim as pleaded by him?

(4) Whether the plaintiff is entitled for the reliefs as prayed for?

(5) To what relief?

8. On behalf of plaintiff, plaintiff examined himself as

P.W.1 and got examined P.W.2. Exs.A-1 to A-5 were marked.

On behalf of defendants, defendant examined himself as

D.W.1 and got examined D.W.2. Exs.B-1 to B-3 were marked.

C.W.1 was examined and Exs.X-1 to X-5 were marked.

9. Trial Court by judgment and decree dated 19.11.2018

dismissed the suit with costs and allowed the counter claim

of defendant with costs. Aggrieved by dismissal of suit

O.S.No.26 of 2010 and allowing counter claim, plaintiff filed

appeal A.S.No.6 of 2019 on the file of VI Additional District

Judge, Ananthapuramu at Gooty. Lower appellate Court

being final factfinding Court on consideration of both oral

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and documentary and legal aspects, dismissed the appeal by

judgment dated 24.02.2022. Aggrieved by the same, the

present second appeal is filed.

10. Heard Sri N.Chandra Sekhar Reddy, learned counsel

for appellant and Sri G.R.Sudhakar, learned counsel for

caveator.

11. Learned counsel for the appellant would submit that

the Courts below did not appreciate the evidence on record in

proper perspective and in fact, the plaintiff proved that he is

the owner of schedule property. He also would submit that

counter claim filed by defendant is barred by limitation and

thus, prayed the Court to allow the second appeal.

12. On the other hand, learned counsel for respondent

supported the judgments of the Courts below.

13. P.W.1, plaintiff in his cross examination admitted the

measurements in Ex.A-2 registered sale deed of plaintiff is

East-West is 60 ¾ feet and North-South is 13 feet. Northern

side boundary is shown as Menta Krishnayya. He also

admitted that he has no right beyond 13 feet. P.W.2, third

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party, during his cross examination admitted that contents of

affidavit filed in lieu of chief examination are not prepared on

his instructions.

14. As per Ex.A-2 sale deed, house of plaintiff, East-West is

60 ¾ feet and North-South is 13 feet. Plaintiff in his evidence

admitted that on western side of North-South measurement

for three rooms is about 13 feet and fourth room is 14 feet.

There is a common wall for four rooms commencing from

western side. This part of admission of P.W.1 makes it clear

that wall of house of plaintiff is not in uniform measurement.

No explanation is offered by the plaintiff regarding extended

one feet from North-South at eastern side. He also admitted

that the Municipal authorities rejected his application to

construct house on the ground that there is variation in the

measurements.

15. C.W.1 is Court witness and Exs.X-1 to X-5 were

marked, which are Xerox copies of information by the

competent authority. As per Ex.X-2 is endorsement issued by

Municipality Gooty, since measurements are not tallied,

application made by the plaintiff for construction of first floor

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was rejected. P.W.2 as stated supra, pleaded ignorance about

the vendor of defendant and also measurements in Ex.A-2.

16. The oral evidence of D.W.1 is consistent and supported

by documentary evidence. Admittedly, defendant's site is

situated on Northern side of plaintiff's house. In fact, the

trial Court suo motu, summoned the Municipal Authority to

inspect the property and localize the measurements of houses

of both parties. Accordingly, the Municipal Commissioner

examined himself as C.W.1 and through him Exs.X-1 to X-5

were marked. Plaintiff for the reasons best known did not

examine his vendor. Plaintiff having filed Ex.A-2 registered

sale deed is claiming the property beyond the measurements.

The Courts below evaluated the evidence on record and found

that plaintiff in fact, encroached 1 foot and thus, dismissed

the claim of plaintiff and allowed the counter claim of

defendant. Lower appellate Court also after careful scrutiny

of pleadings and evidence on record, dismissed the appeal

and confirmed the judgment of the trial court.

17. 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.

18. 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 involved in the

second appeal, interference of this Court in exercise of

jurisdiction under Section 100 of CPC is 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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19. 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