THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.983 of 2010 February 11, 2011 Between: Kanekanti Somasekhar, S/o.Siddappa Chetty And another ... Appellants And Jagadeeswara Modali, S/o.Thangavelu Modali ...Respondent THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.983 of 2010 JUDGMENT: The plaintiffs are the appellants. They filed the suit being O.S.No.958 of 1997 on the file of the Court of the III Additional Junior Civil Judge, Chittoor, for declaration of plaintiffs’ right and title to 3 feet width channel and passage shown as B C E D in the plaint plan and for declaration that the channel shown as C C1 D D1 between the plaintiffs’ and defendant’s houses is common channel and for permanent injunction restraining the defendant (respondent herein) from interfering with plaintiffs’ right to take sewage water and passage through the schedule property. The suit was dismissed on 05.3.2001. The plaintiffs’ appeal being A.S.No.37 of 2001 on the file of the Court of the III Additional District Judge (Fast Track Court), Chittoor, was also dismissed on 24.6.2010, aggrieved by which the present second appeal is filed. The plaintiffs pleaded that the father of the first plaintiff purchased house and vacant site shown as A B C D E F in the plaint sketch from Lakshmamma under registered sale deed dated 14.10.1946; that the sale deed was obtained in the name of the mother of the first plaintiff; and that the first plaintiff executed a gift deed in favour of the second plaintiff on 17.1.1974. Further the case of the plaintiffs was that the channel-cum-passage is on the eastern side of the plaintiffs’ property and the western side of the defendant’s house. Out of the channel a space of 2¼ feet was set apart and the remaining ¾ foot was meant for rain water. The respondent was also taking sewage water through the channel shown as C C1 D D1 and the defendant laid underground pipeline to the said passage to let out sewage water to avoid frequent obstruction of the channel. The plaintiffs’ doorways and toilets on the eastern side open into the passage. However the defendant attempted to occupy the entire portion shown as B C1 F D1 and demanded the plaintiffs to close all the outlets and toilets opening into the passage and approached the Police. The Sub-Inspector of Police, P.S. Thavanampalle, directed the plaintiffs to close all the outlets. Therefore, the plaintiffs filed the suit. The suit was resisted by the defendant. He alleged that he got the suit schedule property under registered partition deed dated 10.5.1961 and that space of about 3 feet of his house site is left to his exclusive use. The plaintiffs’ house is situated at further west of seven yards or 21 feet and, therefore, the suit schedule passage of 3 feet from east to west and north to south 64 yards belongs to his ancestral property. He has been using the property for protecting his house from rain water and there are outlets from his house facing towards west facilitating rain water to fall into 3 feet width vacant site. The plaintiffs have sullage and drainage water in their own site on the southern side and there is no need for the common service passage. The defendant also asserted that the plaintiffs have no right to the site shown as A B C D E F. The trial Court framed three issues. The first plaintiff gave evidence as P.W.1 and marked Exs.A1 to A4. The sole defendant deposed as D.W.1 besides examining D.W.2 and marked Ex.B1, registered partition deed. The trial Court on appreciation of oral and documentary evidence relied on Exs.A2 to A4 and recorded a finding that the suit schedule passage on the western side of defendant’s house is appurtenant to the defendant’s property and the plaintiffs cannot claim any title. The trial Court also recorded a finding that since 5 or 6 years only the drainage from the plaintiffs’ house was flowing through the disputed passage and, therefore, the plaintiffs cannot claim any right. The suit was accordingly dismissed which was affirmed by the first appellate Court. In this appeal, the Counsel for the appellants/plaintiffs submits that the plaintiffs claimed the right over B C E D passage and the right to use C C1 D D1 common channel under the registered sale deed, Ex.A3, executed by Lakshmamma in favour of Chengamma (mother of the first plaintiff) and the Courts below failed to appreciate the documents in proper perspective. He would then urge that both the Courts below erred in holding that the suit passage and channel form part of the defendant’s property. This Court has been taken through the judgment of the trial Court as well as the appellate Court. Appreciating Exs.A2 to A4 (registered settlement deed by the first plaintiff in favour of second plaintiff; registered sale deed by Lakshmamma in favour of Chengamma and the registered sale deed executed by Subrahmanyam in favour of Lakshmamma), the trial Court recorded a finding that eastern boundary of plaintiffs’ house is defendant’s house and rain water channel. This itself would clinchingly show that the plaintiffs’ case that B C E D form part of plaintiffs’ property is not correct. Dealing with this aspect, the first appellate Court observed that D.W.1 and D.W.2 cannot be believed that Ex.B1 partition deed itself supports the case of defendant and that as per Exs.A2 to A4, the house property of plaintiffs is situated on the west of rain water channel of the plaintiffs. Thus both the Courts below appreciated the relevant fact in issue with reference to the documentary evidence and came to the conclusion that plaintiffs had no manner of right to claim B C E D channel or use of C C1 D D1 alleged common channel. It is a question of fact. No question of law arises in this appeal. The second appeal is misconceived and is, accordingly, dismissed. _______________ (V.V.S.RAO, J) February 11, 2011 YS