Markfed A.P vs P. Narsa Reddy
2023 Latest Caselaw 2807 Tel

 THE HON'BLE SRI JUSTICE SAMBASIVA RAO NAIDU

            SECOND APPEAL No.344 OF 2022


JUDGMENT:

This Second Appeal has been filed under Section 100

CPC by an unsuccessful defendants in O.S.No.138 of 2004

questioning the concurrent finding of the trial Court in its

judgment dated 11.10.2012 and judgment of the 1st

appellate Court in A.S.No.99 of 2018, dated 18.02.2020.

The respondent/plaintiff filed O.S.No.138 of 2004 for

declaration of right to use a particular way which is shown

in the schedule and also for perpetual injunction and

mandatory injunction in respect of suit schedule way

which is passing through the land in Sy.No.246 and

touching the National Highway-7 in the land of defendant

in Sy.No.246 of Siddapur revenue village.

2. The trial Court passed Judgment and Decree in

favour of the plaintiff declaring the right of the plaintiff to

use the suit schedule property as way and granted

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mandatory injunction directing the appellants herein to

remove the obstructs and barbed wire fencing in the suit

way within a month from the date of Judgment and

Decree. The appellants herein were permanently

restrained from interfering with the right of

respondent/plaintiff in using the said way.

3. Being not happy with the said Judgment, the

appellants have filed 1st appeal before the district Court,

Nirmal vide A.S.No.99 of 2018. However, the 1st appellate

Court dismissed the appeal and confirmed the Judgment of

the trial Court. Being aggrieved by the said Judgment, the

appellants filed this appeal on the following grounds:

The 1st appellate Court committed an error by

dismissing the 1st appeal without considering the oral and

documentary evidence in proper way, but on the

assumptions and presumptions. The trial Court and the

1st appellate Court have given unnecessary importance to

the evidence of PW1. The trial Court and 1st appellate

Court failed to appreciate the evidence in a proper way and

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the Court ought to have seen that the documents filed by

the respondent do not show the alleged passage, but the

Courts below without considering the fact that the

respondent did not file the sale deed through which they

said to have acquired the right over the suit way, passed

decree. But, there was no such passage at the time of filing

the suit and even prior to filing the suit. The Courts below

ought to have considered that the appellants are in

peaceful possession and enjoyment of the land without any

interruption whatsoever from any corner and it is not being

used by the respondent or villagers. Therefore, the suit

filed by the respondent ought not to have been decreed.

4. The appellants further prayed that the 1st appellate

Court ought to have seen that the Court below relied on

Exs.A1 to A3 and oral evidence of PWs 1 and 3. But, the

said evidence was not appreciated nor discussed in the

Judgments. Therefore, the appellants sought for setting

aside the Judgment and Decree and prayed for dismissal of

the suit.

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5. However, after hearing the counsel, this appeal has

been admitted on the following substantial questions of

law:

1. Whether the Judgment and Decree of the trial Court and 1st appellate Court are right and based on acceptable evidence?

2. Whether the Judgment and Decree on the basis of Exs.A2 and A3 which are subsequent to the suit are sustainable?

3. Whether the conclusion of trial Court and 1st appellate Court about the right of plaintiff to obtain mandatory injunction is contrary to the settled principles of law?

6. Heard learned counsel for the appellants. None

appeared for the respondent.

7. Before adverting to the substantial questions of law

and the arguments advanced by the learned counsel for the

appellants, it is necessary to see what was the case of the

respondent before the trial Court and what was the

contention of the present appellants and as to how the trial

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Court as well as the 1st appellate Court dealt with the suit.

According to the plaint filed by the respondent/plaintiff, it

shows that the respondent sought for declaration of right

to use 60 feet wide way which is passing through the land

in Sy.No.246 and touching the National Highway-7 and

though the land of defendants in Sy.No.246 at Siddapur

Village which is shown in red colour in the land annexed to

the plaint and also for mandatory injunction to direct the

appellants herein to remove the barbed wired fencing

which was raised by the appellants to obstruct free passage

through the said way.

8. The respondent has claimed that he is the owner and

possessor of lands in Sy.No.244,245,246,128 and 129 of

Siddapur Village. The lands in Sy.No.244 and 245 are sub-

divided as Sy.No.244/1 to 244/3 and 245/1 to 245/3 in

the revenue records. The appellants herein are owners of

part of land in Sy.No.246. The land purchased by the

defendants has been identified as Sy.No.246/2 and the

remaining land is identified as Sy.No.246/1. Both the

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appellants as well as respondent purchased their

respective properties from the same vendor. The

respondent has claimed that there is a way passing

through the land in Sy.No.246,245,244 and 243 of

Siddapur Village. The said way is shown in the village map

and also as per the master plan 60 feet width road shown

through the suit land and is running from East to West,

touching the National Highway-7. The godowns of the

appellants herein are situated on the South of the suit way

and there remains rest of the open space which belongs to

the appellants on the Northern side of the said way. The

Respondent has claimed that when the defendants closed

the suit way by fixing wire fencing, the respondent made

complaint to Mandal Revenue Officer and got the land

measured through Surveyor. The Surveyor has presented

his report showing the existence of the suit way. The

respondent has further stated in the plaint that during

August, 2003 the appellants herein closed the suit way and

the Municipal authorities did not take any action against

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the appellants. Therefore, the respondent sought for

declaration to declaring his right to use the way and other

reliefs.

9. The appellants herein filed written statement denying

the averments made in the plant and contending that the

respondent is not the owner and possessor of land in

Sy.No.246 or 246/1. The 1st appellant purchased 3 acres

of land in Sy.No.246 under a registered sale deed, dated

06.10.1976. The appellants have claimed possession over

the property which they purchased under the above

referred sale deed and claimed that there is no such way as

alleged by the respondent. Therefore, the question of their

closing way as alleged by the respondent does not arise

and sought for dismissal of the suit.

10. The trial Court framed the following 5 issues:

1. Whether the plaintiff is entitled to suit way as right of necessity?

2. Whether the plaintiff is entitled to relief as prayed for ?

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3. Whether the suit way exclusively used by the defendants are not ?

4. Whether the suit is liable to be dismissed?

5. To what relief?

11. During trial the plaintiff has produced 3 witnesses

and they were examined as PWs 1 to 3. However, the

evidence affidavit of PW2 was eschewed as he was not

produced before the Court for cross examination. The

respondent has marked Ex.A1 to A3. The counsel

representing the appellants herein reported no evidence,

thereby the trial Court having appreciated the pleadings of

both parties, oral evidence of PW1, PW3 and the

documents marked as Exs.A1 to A3 came to the conclusion

that the suit path way is in existence, the respondent is

able to show his right to use the said way and decreed the

suit by its judgment.

12. The 1st appeal filed by the appellants herein was

dismissed, confirming the Judgment and Decree of the trial

Court. Therefore, there is a concurrent finding against the

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appellants herein. This being Second Appeal, the appellant

shall show substantial questions of law by which the Court

can interfere with the Judgment and Decree of the trial

Court or the lower appellate Court.

13. As already stated in the previous paragraphs, except

written statement which is nothing but total denial of the

plaintiff case, the appellants did not adduce any oral or

documentary evidence in support of their contention. The

respondent/plaintiff, who has claimed right of way to reach

his lands, examined himself as PW1 and examined one

more witness who is neighbor and who is enjoying the

same way as PW3. Exs.A1 to A3 were also marked. Learned

counsel for the appellants herein cross examined Pws 1

and 3, but nothing important could be elicited. The trial

Court while passing Decree, considered the oral evidence of

PWs 1 and 3 and also master plan and rough sketch.

According to the impugned Judgment it is quite clear that

even though PW1 was cross examined at length, the

appellants herein could not show that there was no such

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way as claimed by the respondent. In fact, in the cross

examination the respondent has deposed before the Court

that he purchased an extent of 35 guntas of land out of

Ac.3.35 guntas and further claimed that except the suit

path way, there is no other way to approach his land. PW3

also deposed the same version.

14. As could be seen from Ex.A2 letter addressed by

Commissioner, Municipality, he has admitted the existence

of 60 feet wide road in master plan which runs from

Venkatapur to Siddapur village and the said road is

passing through the lands in Sy.No.246,245,244 and 243

and crossing National Highway-7 and ends in Sy.No.129 at

Siddapur Village. Ex.A3 location map signed by the Mandal

Revenue Officer also supports the case of respondent.

15. Therefore, the oral evidence and documents marked

as Ex.A1 to A3 would disclose that the suit schedule path

way is running through the above referred survey numbers

and that is the only way for the plaintiff and other

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neighboring rights. Therefore, the trial Court as well as 1st

appellate Court accepted the contention of the

respondent/plaintiff and granted mandatory injunction

with a direction to the appellant herein to remove the

obstruction if any. The rough sketch filed along with plaint

also indicates that the suit way is the only way for the

respondent/plaintiff to reach their property.

16. The appellants herein did not choose to adduce any

evidence to substantiate their claim raised through written

statement. Even the cross examination of PWs 1 and 3 also

could not support the contention of the appellant herein.

It may be true that Exs.A2 and A3 are subsequent to filing

of suit, but they indicates the existence of suit way and

there is no contra evidence by the appellant herein to

show that those documents are created for the purpose of

the suit. Therefore, the finding recorded by the trial Court

as well as the 1st appellate Court on facts, cannot be

questioned in the present appeal and in fact the appellants

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herein could not raise any substantial questions, thereby

the appeal is liable to be dismissed.

17. In the result, this Second Appeal is dismissed. No

costs.

As a sequel, pending Miscellaneous Applications, if

any, shall stand closed.

___________________________________ JUSTICE SAMBASIVA RAO NAIDU Date:29.09.2023 PSSK