THE HONOURABLE SRI JUSTICE A.GOPAL REDDY S.A.No.672 of 2009 Date of Order: 21-08-2009 Between: 1.Addanki Satya Rao and others. …Appellants and 1. Kola Satya Rao and others. ..Respondents. The court made the following Judgment: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY S.A.No.672 of 2009 ORAL Judgment: The plaintiffs, who are unsuccessful in both the courts below, filed this Second Appeal against the judgment and decree of the Senior Civil Judge, Ramachandrapuram dated 19-01-2009 passed in A.S.No.34 of 2003 whereby the appeal filed by the plaintiffs has been dismissed confirming the dismissal of suit— O.S.No.108 of 1999 by the Principal Junior Civil Judge, Ramachandrapuram by order dated 22-03-2003. The plaintiffs instituted the above suit for declaration of title to the red marked property shown as EFGHIJKL in the plaint plan and also for delivery of vacant possession of the same from the defendants within the specified time and for permanent injunction restraining the defendants from interfering with their possession. As per the plaint averments, originally the disputed GFKIE property is marked as joint lane and it was extended upto AAID lane initially and after the father and the junior paternal uncle of the plaintiffs purchased A1B1BCC1C2C3D marked plaint plan property along with the lane referred to above under a registered sale deed dated 05-12-1960 they have become owners of the said property and their ancestral property shown as AA1DEKL or EJKKL, the joint lane merged. The plaintiffs are brothers belong to the family of Addanki people, whose great grand father—Ganganna and his brother— Narasaiah have partitioned their properties orally about 100 years back and subsequently the children of Narasaiah have also partitioned their property, whose names are Sathiraju and Veeraswamy. The widow of Veeraswamy sold the share of her husband under a registered sale deed dated 28-06-1912 to her brother-in-law (Sathiraju). Thus, Sathiraju became the owner of A1B1BCC1C2C3D marked property and also GG1H1 marked property. The father of the plaintiffs by name Gaganna and their paternal uncle by name Ramaswamy purchased the plaint schedule property from the children of Sathiraju. Thus, the father of plaintiffs and their junior paternal uncle by name—Ramaswamy have become the owners of the entire southern plaint plan property from the year 1960. Veeraswamy died issueless. The plaintiffs on the death of their father have become absolute owners of the property. The branch of Narasaiah, who got GG1H1, marked property on the north west with the lane on its east shown in red colour as EFGH1K1 in the plaint plan enjoyed the said property till 1963 and later they sold it to one Marineedu Suryanarayana and his wife Surya kantham under a registered sale deed dated 15-02-1963 with wrong measurements. Later M.Suryanarayana and Suryakantham and their children sold the property to defendant No.6, who is the father of defendant Nos.1 to 5, under a registered sale deed dated 28-08-1965 with incorrect boundaries and measurements. While so, one year back the defendants have partitioned amongst themselves and encroached into the red marked site by erecting a thatched hut in it and started causing obstruction for the passage of the plaintiffs. Therefore, the present suit has been filed. The 1st defendant filed his written statement, which was adopted by the defendants 2 to 6, denying the plaint averments and stated that defendant No.6, father of defendants 1 to 5, purchased the said property from Marineedi Suryanarayana and Surya Kantham, who purchased the said property from Addanki Pattabhi Ramaiah and others, and adjacent to the said site there is tiled house and vacant site of Addanki Ramaswamy and on north to the said site and house a public street is situated. It is further pleaded that adjacent to the house and site they purchased there is house wall of one Gambala Atchanna with a lane of 2 yards in width for ingress and agrees for their southern boundary and also into the public street on north and the said lane is joint lane. The registered sale deed dated 13-02-1962 in favour of their vendor and sale deed dated 28-08-1963 in their favour contained the recital about the width of said lane as 2 yards and the said lane is being used by the predecessors in title of the plaintiffs and the defendants to reach the road on north and denied that the boundaries and measurements noted in their sale deed and of their vendor are incorrect. On the above pleadings necessary issues were settled for trial. During the course of trial P.Ws.1 and 2 were examined on behalf of the plaintiffs and marked Exs.A1 to A5. D.Ws.1 and 2 were examined on behalf of the defendants and Exs.B1 to B3 were got marked. In the lower court an advocate commissioner was appointed to identify the plaint plan red marked portion and to take measurements of it and also to note down the physical features of it and to answer work memos, if any, filed by the parties. The learned advocate commissioner executed the warrant and filed his report with sketch showing the disputed lane as ABCD with measurements and objections were also filed by the plaintiffs as well as defendants for the same. The lower court after considering the evidence on record and the report of the advocate commissioner dismissed the suit observing that both the defendants and plaintiffs have joint right of passage through the suit site shown in the red shade in the plaint plan with a width of 8’.6”. Aggrieved by the same the plaintiffs carried the matter in appeal—A.S.No.34 of 2003. The lower appellate court after considering the entire evidence held that under Ex.A1 three items were sold with particular boundaries and items 1 and 2 are corresponding to A1B1C3D in the pliant plan and 3rd item, GG1H1 shown in the pliant plan, is in the possession of the defendants. The measurements given in Ex.A1 for items 1 and 2 therein and in Ex.A2 are also not clearly tallying with the plaint measurements. Further, in the admission made by P.W.1, there is no specific recital in Exs.A1 and A2 sale deeds about the said passage right. In the absence of any pleading and evidence, the deposition made by P.W.2 about using the passage cannot be accepted. The advocate commissioner is not examined and his report is not marked. When the document Ex.A1 does not contain specific recitals as to the width of the joint lane, which is in dispute, and in the absence of any proof that the said document was reflecting the correct measurements, the lower court has not taken the same into consideration to hold that the document obtained by the defendants under sale deed dated 02-08-1965 and their vendors under sale deed dated 15-02-1963 are bearing false recitals. The plaintiffs failed to establish the same and accordingly dismissed the appeal. P.W.2 admitted that he cannot say whether measurements found in Exs.A1 and A2 are true and correct. It is not the case of the plaintiffs and what they have pleaded is that item No.3 in Ex.A1 sale deed was not sold to the father and junior paternal uncle of the plaintiffs but it was retained by their vendor which sold subsequently in the year 1963 in favour of the vendor of the defendants under Ex.A3 dated 15-02-1963 later the defendants purchased it under the original of Ex.A4 sale deed on 02-08-1965. Once the defendants purchased the property with recitals of boundaries, it is not open for the plaintiffs to contend that the boundaries mentioned therein are not correct. In view of the same, no perversity is discernable in appreciation of evidence by the lower court, which gave rise to substantial question of law to be decided in the Second Appeal and it is accordingly dismissed at the admission stage. _______________ A.GOPAL REDDY,J 21-08-2009 Murthy