THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Second Appeal No.257 of 2007 ORDER: Respondent filed O.S.No.276 of 2002 in the Court of III Additional Junior Civil Judge, Kadapa, for the relief of perpetual injunction against the appellants from meddling with the use of rastha shown as A B C D E F G H, in the suit plan, either by closing the same at points C H D E, or G H, or otherwise. It was pleaded that the property on the western side of the land D C H G shown in the plaint plan was purchased by his father on 26-01-1939, and the same was gifted to the 1st appellant through a document dated 26-03-1980. He pleaded that in the gift deed a clear mention was made to the effect that the right of passage over the suit schedule rastha is reserved in favour of the donor, and the respondent and one Sri Narsimhulu, to whom a bit of vacant site was sold by his father, were using the rastha as of right. It was alleged that the appellants tried to close the lane at point C G and G H to prevent the use of the same by the respondent. The appellants, on the other hand, filed a written statement, denying the allegations in the plaint. The fact that the property was gifted is not denied. However, it is stated that the gift deed is only a nominal document, and even earlier thereto, the appellants have exclusive right over the rastha. Through its judgment dated 28-11- 2002, the trial Court decreed the suit. Aggrieved thereby, the appellants filed A.S.No.1 of 2003 in the Court of III Additional District Judge (FTC), Kadapa. The appeal was dismissed on 27-10-2006. Hence, this Second Appeal. Heard Sri P. Veera Reddy, learned counsel for the appellants and Sri S.V. Bhatt, learned counsel for the respondent. The suit filed by the respondent was the one, for injunction- simplicitor, with regard to use of a common passage. The appellants, on the other hand, claimed the passage to be their exclusive one. The trial Court framed only one issue for its consideration, viz., whether the respondent is entitled to the grant of perpetual injunction against the appellants. The respondent examined PWs 1 and 2 and filed Exs.A-1 to A-12. On behalf of the appellants DWs 1 and 2 were examined and Exs.B-1 to B-3 were filed. In A.S.No.1 of 2003 filed by the appellants herein before the lower Appellate Court, feeling aggrieved by the decree passed by the trial Court, the following points were framed for consideration: i) Whether the respondent established the incidental title and possession by using suit passage shown as ABCDEFGH as alleged? ii) Whether the respondent entitled for permanent injunction over the suit passage as prayed for? iii) Whether the appellants entitled for the relief in this appeal as prayed for? All the points were answered in favour of the respondent, and the appeal was dismissed. Virtually, no question of law, much less substantial question of law arises for consideration in this second appeal. It is not in dispute that the property, which is on the western side of the lane, under enjoyment of the appellants, was originally owned by the father of the respondent, and that the same was gifted to them, vide Ex.A-3. Though the appellants made an attempt, to impress the Courts to the effect that they had right over the property, prior to Ex.A-3, no effort was made by them in that regard. A perusal of Ex.A-3 clearly demonstrates that the right of passage over the suit schedule land was reserved for the owners of the lands, abutting that lane. In case the appellants wanted a declaration to the effect that the recital in Ex.A-3 is not binding upon them, or that the suit passage belongs to them exclusively, they ought to have filed a separate suit or at least filed a counter-claim in the suit filed by the respondent. They did neither. If the plea of the appellants that Ex.A-3 is only nominal is to be accepted, the title in the property would remain with the father of the respondent. In such an event, not only the alleged exclusive right over the passage, but also the title of the appellants over the subject-matter of Ex.A-3 becomes doubtful. Being the donees, from the father of the respondent, the appellants cannot prevent the respondent from using the passage, that too, at the teeth of the recitals in Ex.A-3. Hence, the Second Appeal is dismissed. There shall be no order as to costs. ________________________ L. NARASIMHA REDDY, J. Dt.30-04-2010. KO