IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY SIXTH DAY OF FEBRUARY TWO THOUSAND AND TEN PRESENT THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY Second Appeal No.266 of 1997 Between: R.Narasimhulu ..... Appellant AND 1.Jilakara Rangaiah (died) and 9 others. .....Respondents Counsel for the Appellant: Sri O.Manohar Reddy Counsel for Respondent Nos.2 to 5: Sri Atchutananada Dondeti Counsel for Respondent Nos.6 to 10: None appeared The Court made the following : Judgment: This Second Appeal arises out of judgment and decree, dated 06-09-1996, in A.S.No.145 of 1988, on the file of the learned Additional District Judge, Anantapur, whereby the judgment and decree, dated 30th July, 1988, in O.S.No.274 of 1982, on the file of the learned District Munsif, Dharmavaram, has been reversed. For convenience, the parties are referred as they are arrayed in the suit. I have heard Sri O.Manoher Reddy, learned Counsel for the plaintiff, and Sri Atchyutananda Dondeti, learned Counsel for the defendant. In his plaint, the plaintiff averred that the suit property admeasuring 12’ x 30’ is an open site and purchased by him under registered sale deed, dated 21- 09-1972, from its rightful owners under proper and valid consideration; that ever since the purchase, the plaintiff was in exclusive possession and enjoyment of the suit property; that the suit property is situated adjoining the other house property of the plaintiff and the same is described as DEFG measuring 12’ x30’ in the plaint plan and that two windows marked as W.1 and W.2 are opened into the suit site. The plaintiff further averred that the defendant has nothing to do with the suit property and that he has got a little open site to its east, which is also shown in the plaint plan. The cause of action for the plaintiff to file the suit was when he refused to accept the defendant’s offer for sale of the property, the latter started giving trouble to the plaintiff by trying to occupy the suit property. The plaintiff, therefore, sought for declaration of his right and title over the suit property and also for injunction restraining the defendant from interfering therewith. The defendant filed a written statement wherein he inter alia denied the claim of the plaintiff and pointed out that the plaint plan is not correct and that it does not contain the true statement of facts in respect of the properties of the plaintiff and the defendant. It was further averred that the plaintiff never purchased the suit property and that, having wrongfully encroached into his property to an extent of 4 feet, he filed the suit with false averments. The defendant also filed additional written statement wherein he has specifically pleaded that the plaintiff has neither title nor possession over the suit property and that the plaintiff has lost his title, if any, as he has not been in possession thereof within the statutory period. The defendant further averred that the suit property belongs to him right from the time of his ancestors and that he has been in possession thereof, having perfected his title by adverse possession. On behalf of the plaintiff, PWs.1 to 4 were examined and Exs.A.1 to A.3 were marked. On behalf of the defendant, DWs.1 and 2 were examined and Exs.B.1 to B.6 were marked. The trial Court, having regard to the pleadings raised by the parties, framed the following issues: “1.Whether the plaintiff is entitled to the declaration as prayed for ? 2.Whether the plaintiff is entitled to he relief of injunction as prayed for ? 3. To what relief ?” On issue No.1, the trial Court found that the plaint plan was roughly drawn by the plaintiff basing on Ex.A.1- sale deed and that the same does not represent the existing measurements as noticed by the Commissioner in his report and plan marked as Exs.C.1 and C.2. The trial Court further noted the arguments advanced on behalf of the plaintiff that the plaintiff has mistaken the facts due to his inexperience and, accordingly, drawn the plaint plan and that there are variations in the measurements and boundaries towards east of item Nos.2 to 4 mentioned therein. The trial Court, however, held that the actual dispute pertains to the site constituted to the east of item Nos.3 and 4 and that since Ex.A.1 had shown the western boundary of the plaintiff’s land as the site belonging to Paraku Thimmaiah Kottam, the starting point for measurements was point ‘H’ as marked in Ex.C.2- Commissioner’s plan and that the plaintiff is entitled to the site admeasuring 26.10 feet on the east of H and G. Accordingly, the trial Court decreed the suit in favour of the plaintiff by holding that the plaintiff can only claim beyond item No.3 on the eastern side and declared his title over the land admeasuring 15 feet to 10 feet South-North and 8 feet to 2 feet East-West situated between DFGI marked in Ex.C.2- Commissioner’s plan. While the defendant filed A.S.No.145 of 1988, aggrieved by the said judgment and decree, the plaintiff filed cross-objections in respect of the disallowed portion of the relief. The lower appellate Court, on appreciation of the entire evidence on record, reversed the judgment and decree of the trial Court and dismissed the cross- objections. The unsuccessful plaintiff filed this Second Appeal against the said judgment. This Court admitted the Second Appeal on the following purported substantial questions of law: “1.Whether the judgment and decree of the lower appellate Court in reversing the well considered judgment of the trial Court is legally sustainable and is supported by evidence on record ? 2.Whether the lower appellate Court acted legally in dismissing the suit holding that the appellant had failed to prove title to the property even though the entire property in B6 was conveyed to the plaintiff under Ex.A.1 ? 3.Whether the lower appellate Court acted legally in holding that the plaintiff cannot rely on the measurements in Ex.B.6 to prove the case ? 4.Whether the lower appellate Court is right in holding that the suit property is not part of the property purchased by the appellant relying on Ex.A.1 and A.2 with reference to commissioners’ report ? 5.Whether the reasoning of the lower appellate Court reversing well considered judgment of the trial Court is supported by evidence on record and is legally sustainable ?” It is required to be noted that the plaintiff has not filed a separate appeal against the cross-objections. Therefore, he cannot claim any relief beyond what was granted by the trial Court in its judgment and decree even if he succeeds in this appeal. During pendency of the Second Appeal, the defendant died and his legal representatives were brought on record as respondent Nos.2 to 9 vide SAMP.No.1546 of 2009, dated 10-08-2009. At the hearing, the learned Counsel for the appellant, strenuously, contended that the lower appellate Court committed an error in reversing the well- considered findings of the trial Court. He further argued that as the lower appellate court has committed gross misconstruction of the documentary and oral evidence, the same constitutes substantial question of law warranting interference by this Court. Per contra, the learned Counsel for the defendants submitted that the lower appellate Court has given sound reasons to differ with the views of the trial Court. Since the conclusions drawn by the lower appellate Court are based on re-appreciation of evidence, no substantial question of law arises for consideration in this Second Appeal. From the evidence on record and the judgments of the Courts below, it is evident that the identity of the suit property is in dispute. While the fact that the plaintiff has purchased the property admeasuring 12 feet x 30 feet under Ex.A.1 from its lawful owner is not in dispute, the short question was whether the said property was the same, as was identified and delineated by the plaintiff as DEFG in his plan, filed along with the plaint. As noted above, the trial Court has recorded a categorical finding that the plan drawn by the plaintiff does not represent the existing measurements, as noted by the Commissioner in Ex.C.2- plan, and that the same was prepared under mistaken facts due to his inexperience. While the plaintiff has pleaded that the suit property is part of item No.4 of the property purchased under Ex.A.1, the trial Court has given a specific finding that the suit property is situated in item No.3 of the plaint plan. There is, thus, a material variation in the stand taken by the plaintiff in his pleadings on the one hand and his evidence on the other. In my opinion, the plaintiff ought to have amended his pleadings and also the plaint plan on his realizing that he has committed a mistake in describing the suit property. Admittedly, he has not done so. Therefore, the trial Court, as rightly held by the lower appellate Court, ought not to have decreed the suit merely on the basis of Exs.C.1 and C.2- the Commissioner’s report and the plan. The trial Court decreed the suit on the reasoning that irrespective of the correctness or otherwise of the plaint plan, as the plaintiff has purchased the property under Ex.A.1, with the same boundaries as are contained in Ex.B.6, under which the plaintiff’s vendor purchased the suit property, he is entitled for declaration of title to the extent of 15 feet to 10 feet South-North and 8 feet to 2 feet East-West. After a critical examination of this reasoning, the lower appellate Court, in its judgment, held that the plaintiff has changed his version from the plaint and came forward with a claim that the suit property is part of item No.3 of Ex.A.1- sale deed, which was never his case, as per the pleadings and that what is not pleaded cannot be accepted merely on the basis of the evidence and the contentions advanced at a later point of time. The lower appellate Court further held that on the basis of Exs.A.1 and A.2 and Ex.C.2- the Commissioner’s plan, it can be safely concluded that the suit property is not part of item No.4 and that the plaintiff is not its owner and that as per Ex.C.1- Commissioner’s report, the plaintiff tried to develop his case by departing from his original stand that the suit property fell in item No.4 and pleading that it was part of item No.3 of Ex.A.1. After a careful consideration of the judgments passed by the Courts below, I am of the view that no substantial question of law arises for consideration in this Second Appeal. The lower appellate Court, after analysing the evidence, has arrived at the abovestated conclusions and it cannot be said that the findings thereof are based on a patently erroneous misappreciation of the evidence on record. Therefore, this Court, sitting in Second Appeal under Section 100 of the Civil Procedure Code, cannot interfere with such findings, even if a different view is possible on the basis of the available evidence. For the above-mentioned reasons, the Second Appeal fails and the same is, accordingly, dismissed. ___________________________ (C.V.NAGARJUNA REDDY, J) 26th February, 2010 lur