THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.1232 OF 2010 Dated:05.08.2011 Between: Badugu Prasada Rao and others .. Appellants And Maddipatla Virraju and others .. Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.1232 OF 2010 JUDGMENT: In the second appeal filed against the reversing judgment dated 23.08.2007 in A.S.No.56 of 2002 on the file of the Court of the V Additional District Judge, (Fast Tract Court), Rajahmundry, East Godavari District, the appellants are the plaintiffs. The suit was filed by Badugu Dharmaiah, his wife and their children. During the pendency of the suit, the plaintiffs 1 and 2 died and their legal representatives - plaintiffs 4 to 7 were either added or recognized as representing the deceased plaintiffs 1 and 2. The suit was for possession after evicting the defendant from an extent of Ac.0.63 cents in Survey No.97/7 of Katheru Village near Rajahmundry, East Godavari District. The suit was decreed, but was reversed by the first appellate Court. The case of the plaintiffs before the trail Court was that Arjappa, father of Dharmaiah, was the owner of Acs.2.92 cents in Survey No.97/7 having purchased the same under a registered sale deed dated 26.09.1939. The actual land, however, was Acs.3.20 cents. During his lifetime, he and his sons sold Acs.2.00 to defendant’s father under a sale deed - Ex.B7. Arjappa executed a registered settlement deed - Ex.A2 in favour of his daughter for an extent of Ac.0.40 cents, who in turn executed a settlement deed in favour of Dharmaiah on 15.10.1988 (Ex.A1). The first plaintiff, therefore, retained an extent of Ac.1.20 cents. In 1990, the defendant filed O.S.No.161 of 1990 against plaintiffs 1 to 3 and obtained ex parte order of injunction in respect of Ac.0.63 cents of land alleging that the plaintiffs encroached upon his land. Therefore, they instituted the suit for recovery of possession. The defendant opposed the suit. He relied on Ex.B7 and denied the right of the plaintiffs to recover possession of land to them. The trial Court framed one substantial issue. Dharmaiah gave evidence as PW.1 and examined PW.2 to prove Ex.A4 - Will to the extent of Ac.0.50 cents executed by Arjappa in favour of third plaintiff. Exs.A1 to A4 were marked. The sole defendant was deposed as DW.1 and marked Exs.B1 to B9. On considering the evidence, the trial Court believed the case of the plaintiffs and decreed the suit for recovery of possession. As noticed supra, the first appellate Court reversed the judgment of the trial Court. Learned counsel for the appellants (plaintiffs) submits that Exs.A1 to A4 establish the extent of the property owned by the plaintiffs and the first appellate Court erred in observing that PW.1 was not able to specify the extent of area encroached upon by him. This Court has perused the judgment of the trial Court as well as the first appellate Court. As observed by the first appellate Court, PW.1 himself admitted that in the land of the defendant, there were bunds on four sides and he cannot say how much land was encroached by him. He only gave vague replies in the cross-examination stating that the land encroached upon may be Ac.0.60 cents or Ac.0.70 cents. Further, as observed by the first appellate Court, when the Court of the IV Additional Junior Civil Judge, Rajahmundry, granted injunction in O.S.No.161 of 1990, the plaintiffs did not file any appeal and the said injunction became final. In that view of the matter, the first appellate Court was correct in coming to the conclusion that the plaintiffs failed to show that the original land which was held by Arjappa was Acs.3.20 cents. The finding of fact is based on the evidence and does not give rise to a substantial question of law. The Second Appeal is, therefore, dismissed. There shall be no order as to costs. ________________ (V.V.S. RAO, J) 05.08.2011 KH