THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.820 of 2011 September 15, 2011 Between: Erla Appa Rao, S/o.Yerranna ... Appellant And Gade Venkateswarlu, S/o.Venkamma ...Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.820 of 2011 JUDGMENT: The appellant is the plaintiff in O.S.No.1031 of 1997 on the file of the Court of Principal Junior Civil Judge, Kakinada. The suit was filed for permanent injunction restraining the respondent (hereafter, the defendant) from interfering with plaintiff’s possession in respect of items 1 and 2 of plaint schedule property. By judgment and decree dated 23.2.2005, the suit was dismissed. The plaintiff unsuccessfully preferred appeal being A.S.No.56 of 2005. The same having been dismissed on 20.8.2007 by the Court of the VII Additional District Judge, Kakinada, the present second appeal is filed. The plaintiff’s case is that he is the absolute owner of plaint schedule property shown as ‘A B C D E F G H’ in the plaint plan which was originally purchased by his parents under registered sale deed dated 16.2.1961; the plaintiff succeeded to the property; he raised a new thatched cattle shed in September, 1997 and at that that time the defendant tried to interfere with the possession of the property including ‘A B C D’ portion which he got as common passage. The defendant opposed the suit alleging that he has been in possession and enjoyment of the plaint schedule property till 04.8.1998; and the plaintiff highhandedly trespassed into the schedule property compelling him to approach the Police and thereafter the suit was filed. During the trial, the plaintiff examined four witnesses and marked two documents. Defendant examined three witnesses and the report of the Advocate Commissioner, who deposed as P.W.3, was marked as Ex.C1. On considering the evidence, the trial Court held that the plaintiff failed to establish that the property on the western side covered by Ex.A1 forms part of the property purchased by his parents under Ex.A1. He also relied on the evidence of Advocate Commissioner-P.W.3 who in her report stated that there is a school on the western side of the passage ‘A B C D’. Insofar as other portion of the property i.e., ‘E F G H’ is concerned, the trial Court having come to the conclusion that no declaration was sought by the plaintiff, dismissed the suit in toto. The appellate Court confirmed the same. The Counsel for the appellant/plaintiff submits that Ex.A1 sale deed covers the entire plaint schedule property ‘A B C D E F G H’. Even if the evidence was not sufficient to enable the plaintiff to claim decree of injunction in respect of Ex.A1 portion, he still entitled for injunction in respect of ‘E F G H’ portion of plaint plan. According to him, both the Courts were in error in dismissing the suit. The appellant has filed a copy of the plaint. A reading of the same would show that though the plaintiff claimed permanent injunction in respect of the entire property ‘A B C D E F G H’ of the plaint plan covered by Ex.A1, his grievance was alleged interference by the defendant in respect of ‘A B C D’ portion alone. The cause of action for filing the suit is the averment that the defendant had no right in any part of the plaint schedule property including pathway ‘A B C D’. Further, the appellate Court found that the plaintiff as P.W.1 in his cross-examination admitted that ‘A B C D’ portion of plaint plan is not the property purchased under Ex.A1 sale deed by his parents. When there is a clear admission, the plaintiff could not have maintained a suit for injunction in respect of ‘A B C D’ especially when he alleged that the defendant was interfering with that portion. The second appeal is misconceived and is, accordingly, dismissed. No costs. _______________ September 15, 2011 (V.V.S.RAO, J) YS