IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY EIGHTH DAY OF AUGUST TWO THOUSAND AND NINE PRESENT HON’BLE SRI JUSTICE K.C.BHANU SECOND APPEAL (SR) No.89393 OF 2003 Between: D. Venkateswara Reddy ..... Appellant/Plaintiff AND Smt. I. Sujatha Reddy ..... Respondent/Defendant The Court made the following: JUDGMENT: The second appeal under Section 100 of CPC is directed against the Judgment and Decree, dated 26.06.2003, passed in A.S.No.7 of 2002, on the file of the learned Senior Civil Judge, Peddapalli, Karimnagar District, whereunder and whereby, the Judgment and Decree, dated 04.12.2001, in O.S.No.242 of 1996, on the file of the learned Junior Civil Judge, Peddapalli, Karimnagar District, was confirmed. 2. For better appreciation of facts, the parties are referred to as arrayed in the trial Court. 3. Brief facts that are necessary for disposal of the present second appeal may be stated as follows: The plaintiff is the absolute and exclusive owner of plaint schedule land admeasuring Ac.1.00, in Survey No.518, situated at Shanthinagar, Sulthanabad. He is the adopted son of Late Dontireddy Venkat Reddy. As per the Hindu Succession Act, he is the Class-I legal heir of the said Late Dontireddy Venkat Reddy. During the lifetime of his father, he purchased the suit land under registered sale deed dated 25.07.1962 and since then, his father was in continuous possession over the suit land, and after the death of his father, Late Dontireddy Venkat Reddy, the plaintiff inherited the suit land and his name was mutated in the concerned pahanies. During the course of time, when one Elagandula Venkataiah tried to interfere with the suit land and tried to construct a house over the suit land, the plaintiff has filed the suit in O.S.No.114 of 1994 on 03.08.1994 and obtained a temporary injunction against the said person in I.A.No.451 of 1994 in O.S.No.114 of 1994, on the file of the learned Senior Civil Judge, Peddapalli, Karimnagar District, and after hearing both sides, the interim injunction was made absolute. The suit is still pending before the trial Court. The defendant, who is a stranger to the plaintiff, has no right to interfere with the suit schedule property in whatsoever manner. But under power of undue influence, he constructed a compound wall towards the western side of the suit land, upto the length of about five feet. Hence, the suit. 4. The defendant filed written statement stating that she did not know whether the plaintiff is the adopted son of Late Dontireddy Venkat Reddy or whether his father purchased Ac.1.00 of suit land from his vendor. Even if the said allegations are presumed to be correct, the defendant is not concerned with the land of the plaintiff described as suit land and the defendant did not construct the wall over the alleged suit land and the plaintiff has no cause of action against him. It is stated that she made construction of the compound wall on her own land bearing Plot Nos.2, 3 and 4, admeasuring 107, 158 and 153 square yards respectively, which are part of the Survey No.518, situated at Peddappalli, Karimnagar District, and the title of her vendor was declared in O.S.No.36 of 1987, on the file of the Sub-Court, Peddapalli, Karimnagar District, which is a suit for declaration of title and recovery of possession of Ac.0.26 guntas of land abutting to PWD Road leading from Peddapalli to Manthani. The said Court, in E.P.No.64 of 1989 has delivered vacant possession of the land to her vendor on 09.12.1989. The plaintiff knew about the facts and the said decree was also binding on him. Therefore, the alleged suit land is separate and distinct from the land of the defendant on which she raised compound wall and the plaintiff has no right over the said land. 5. Basing on the above pleadings, the following issues were settled by the lower Court. 1. Whether the suit as framed is maintainable? 2. Whether the plaintiff is entitled for perpetual injunction as prayed for? 3. To what relief? 6. During trial, P.W.1 was examined and Exs.A1 and A2 were marked on behalf of the plaintiff. On behalf of the defendant, D.Ws.1 to 3 were examined and Exs.B1 to B7 were marked. 7. The trial Court, after considering the evidence on record, dismissed the suit on the ground that the plaintiff failed to establish his possession over the suit land. Challenging the same, the appeal was filed. In the appeal, the judgment of the trial Court was confirmed. Aggrieved by the same, the second appeal is filed. 8. Learned Counsel appearing for the appellant/plaintiff contended that both the Courts below have not considered the registered sale deed, dated 25.07.1962, even though there was no rebuttal evidence, and that the appellate Court has not formulated the correct points for consideration in the appeal. Hence, it prays to set aside the findings. 9. Unless a substantial question of law is involved in the second appeal, the question of admitting the second appeal does not arise. If both the Courts gave a perverse finding, or the findings which are not based upon any admissible evidence, or inadmissible evidence was taken into consideration, are some of the aspects which come within the meaning of substantial question of law. To know whether the findings are correct or not, it is necessary to refer to the evidence. 10. The plaintiff alleges that by virtue of a registered sale deed under the original of Ex.A1, his father purchased Ac.1.00 of suit land in Survey No.518, situated at Shanthinagar, Sulthanabad. The plaintiff claims that he was the adopted son of Late Dontireddy Venkat Reddy. As per Hindu Succession Act, he, being the Class-I legal heir of Later Dontireddy Venkat Reddy, succeeded to the said property after the demise of his father. 11. It is in the evidence of plaintiff that the defendant had constructed five feet height compound wall over the suit land. He also categorically stated that the defendant constructed the compound wall towards the western side of the suit land. Admittedly, there was a compound wall existing even by the date of filing of the suit. He did not raise any objection while the compound wall was being constructed by the defendant. The suit is filed for mere mandatory injunction without there being any declaration of title. In view of the fact that the defendant is claiming that her vendor was put in vacant possession of the land to an extent of Ac.0.26 guntas of land abutting to PWD Road leading from Peddapalli to Manthani, on 09.12.1989, in pursuance of execution petition in a suit for declaration of title filed by her vendor in O.S.No.36 of 1987 on the file of the Sub-Court, Peddapalli, Karimnagar District, and that Ac.0.26 guntas of land includes the plot Nos.2, 3 and 4 of the defendant admeasuring 107, 158 and 153 square yards which are the part of Survey No.518, situated at Peddapalli, Karimnagar District, it is for the plaintiff to first establish his title. 12. It is specifically stated by the defendant that the construction of the compound wall by the defendant on her own land. She also stated that the suit land is separate and distinct from the land of the defendant. Identity of the plaint schedule property is in serious dispute. The boundaries given in the plaint are not tallying with the boundaries given by the plaintiff in his evidence. Ex.A1 is the certified copy of the Urdu registered sale deed, whereas, Ex.A2 is the true translation of Ex.A1-sale deed. The boundaries as mentioned in the original of Ex.A1 are not tallying with the boundaries as mentioned in the plaint schedule property, or as testified by the plaintiff. There was no pleading that to the west of the suit schedule land, there is a road. As a matter of fact, the original of Ex.A1 does not disclose that the western boundary is the road. On the other hand, it says that the western boundary is the land of Lingareddy and Tirupathi Reddy. The plaintiff also admitted that he had no disputes with Bhavanam Vekatappa Reddy and others in respect of Ac.0.26 guntas of land abutting to PWD Road leading from Peddapalli to Manthani in Survey No.518, situated at Peddapalli, Karimnagar District. As seen from the evidence adduced by the defendant, it would go to show that Ac.0.26 guntas of land was declared to be the land of her vendor of the defendant, and through process of Court, the said land was taken into possession by her vendor. In the absence of proper identification of the property, the question of granting injunction does not arise. Further more, when the plaintiff asserted that the defendant already encroached some part of the suit land and constructed a compound wall, the remedy is otherwise but not mandatory injunction. 13. Therefore, the trial Court, after elaborate consideration of evidence on record, rightly dismissed the suit. The said findings have been rightly confirmed by the appellate Court. None of the finding is shown to be perverse, or contrary to law. There is no substantial question of law involved in the second appeal. In the absence of any substantial question of law, the second appeal cannot be admitted. 14. Accordingly, the Second Appeal is dismissed at the admission stage, confirming the Judgment and Decree, dated 26.06.2003, passed in A.S.No.7 of 2002, on the file of the learned Senior Civil Judge, Peddapalli, Karimnagar District. _______________ (K.C. BHANU, J) Date: 28th August, 2009 KL