THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL Nos.525 AND 592 OF 2009 COMMON JUDGMENT: This common order is necessitated by the fact that two second appeals are filed by the same defendant against common Judgment of first appellate Court, namely, the Court of Senior Civil Judge, Tadepalligudem, dismissing A.S.Nos.44 and 45 of 2000 confirming common Judgment of trial Court, namely, the Court of Principal Junior Civil Judge, Tadepalligudem in O.S.Nos.168 and 203 of 1991. Both suits are connected and therefore, they were tried together. Chintalapati Suryanarayana Raju (CSR, for brevity), his wife and son instituted O.S.No.168 of 1991 (hereafter referred to as ‘first suit’) against defendant Nandyala Krishnam Raju (NKR, for brevity) for mandatory injunction to restore the field canal (in local parlance, drainage bode) and for permanent injunction restraining first defendant from rearing fish in fish tanks dug in land admeasuring Acs.4.07 comprised in survey Nos.78/2, 3 and 79/4, 5 and 6 of Jagannadhapuram village, Ganapavaram Mandal of West Godavari District. CSR also filed O.S.No.203 of 1991 (hereafter referred to as ‘second suit’) for recovery of possession of land admeasuring Acs.0.25 in survey Nos.78/1 and 79/1 and Acs.0.06 in survey No.95/4 belonging to him alleging that first defendant encroached into the land. In the first suit, State of Andhra Pradesh and Mandal Revenue Officer was arrayed as defendants 2 and 3. The case of CSR is that he owns wet land in Jagannadhapuram, that lands receive excess water from upper lands and water is discharged into Venkayya-Vayyeru canal (VV canal) through discharge drainage bode passing through lands in survey Nos.78 and 79 shown in plaint plan as X.1, X.2 and X.3. First defendant dug fish tanks in his lands and while doing so, encroached into CSR’s land and closed drainage bode preventing free flow of drain water through the same. He, therefore, initially sought mandatory injunction and permanent injunction, and subsequently filed suit for recovery of possession. The case of NKR is that he did not remove bode in July, 1991, that the Bode was in existence for the last several years on the southern side of his land, and that it is still in existence and that he did not encroach upon CSR’s land. He also alleged that CSR was discharging excess water in VV canal from plot to plot through their lands towards East from Western side and CSR never discharged drain water to plaint Bode. The defendant further stated that in 1991, CSR and NKR planned to dig fish tanks together in their lands and as per such understanding he dug fish tank leaving Acs.0.10 land on the Northern side keeping the bund of four yards width and five feet height. CSR who is very good friend prior to filing of suit could not dig fish tank due to financial difficulty and labour problems and that there is no necessity to obtain permission from the authorities for digging fish tanks. He denied the allegation that he encroached into CSR’s lands. Trial Court framed three issues in first suit and four issues in the second suit. CSR gave evidence as P.W.1 besides examining six other witnesses and marking Exs.A.1 to A.11. The two Advocate Commissioners appointed during the pendency of suits gave evidence as P.W.3 and P.W.6. NKR gave evidence as D.W.1 and marked Exs.B.1 and B.3. He also examined three more witnesses and Commissioners’ reports were marked as Exs.C.1 to C.9. Trial Court believed evidence of P.W.1 and advocate commissioner as P.W.3 and came to conclusion that while digging fish tank, NKR encroached into plaintiff’s land and that by reason of digging a tank, CSR was deprived of a bode to let out water into VV canal. The trial Court accordingly decreed both the suits restraining NKR from rearing or growing fish in suit schedule land and further directing him to hand over vacant possession of encroached portion as determined with the help of C.1 and C.2 and to remove all the coconut trees. On appeal filed by NKR, the appellate Court confirmed the findings. Learned counsel for appellant submits that plaintiff failed to plead and prove that he had no alternative easement, and therefore, he must fail in the suit as he, in effect, claimed declaration of easement to use bode to drain out water to VV canal. Secondly, he submits that initially P.W.7 was appointed as Advocate Commissioner and both the Courts erred in ignoring report filed by him. This Court has perused Judgment of trial Court as well as appellate Court. The issues framed essentially were determined based on the evidence. The question raised by learned counsel for appellant in both the appeals is misconceived. It is not the case where the plaintiff acquired easementary right to use drain bode over a period of time. The bode was an easement attached to property of plaintiff as well as others and even in written statement, first defendant admitted that there was bode and that he did not close bode. Trial Court relied on the evidence of P.W.1 and P.W.3 and came to conclusion that first defendant made encroachment into plaintiff’s land, and that he closed plaint bode. Trial Court also correctly observed that first defendant is entitled to use his land to his liking but such use should not be so as to cause damage to neighbouring lands and that he ought to have taken sufficient precaution so that there would not be any damage to neighbouring lands. Appellate Court again re-appreciated evidence and came to conclusion that first defendant not only closed plaint bode but also encroached on plaintiff’s land. These are the findings of fact and question of law would not arise in these second appeals. This Court is satisfied that both the Courts below thoroughly examined evidence and on balancing of probabilities and by giving cogent and convincing reasons held the issues in favour of plaintiff. In the result, for the above reasons, second appeals are dismissed. There shall be no order as to costs. _______________ (V.V.S.RAO, J) 21.08.2009 pln