THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.840 OF 2011 Dated:15.09.2011 Between: Tallapudi Appa Rao .. Appellant And Smt.Chinni Ammaji and others .. Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.840 OF 2011 JUDGMENT: The appellant is the plaintiff. He filed O.S.No.1272 of 2000 on the file of the Court of the II Additional Junior Civil Judge, Kakinada, for permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit schedule property, including ABCD lane therein. The suit was decreed on 19.02.2008 by the trial Court. On appeal by the defendants, the Court of the I Additional Senior Civil Judge, Kakinada, allowed A.S.No.119 of 2009 on 21.10.2010, aggrieved by which the present Second Appeal is filed. The case of the plaintiff is that his father-in-law Lanka Ramulu executed an unregistered Will dated 16.02.1981 bequeathing the suit schedule property to him and to his wife; after death of the testator, he got the property mutated in his name; there is a lane of 32 feet length and two feet width immediately on the northern side of the schedule property, through which the plaintiff has ingress and aggress into his ABCD lane and that the defendants, who are the immediate neighbours on the northern side, are creating obstacles and interfering with his possession. The defendants denied the plaintiff’s case. They pleaded that ABCD lane is a common lane and that their balcony is projected into the disputed lane and thereby they shared the aerial space equally. During trial, the plaintiff examined himself as PW.1 and marked the unregistered Will as Ex.A1, tax receipts as Ex.A2 and photos with negatives as Ex.A3. An advocate clerk, who knew the plaintiff’s daughter, was examined as PW.2 to corroborate the case of the plaintiff. The first defendant deposed herself as DW.1 and marked Exs.B1 to B6. The trial Court relied on the oral evidence of PWs.1 and 2 and decreed the suit. The appellate Court came to the conclusion that there are interpolations in Ex.A1; PW.2 is an introduced witness having acquaintance with the daughter of the plaintiff and the plaintiff failed to prove his case i.e., exclusive right over the ABCD lane. Accordingly, the judgment and decree of the trial Court was reversed. The counsel for the petitioner would submit that the finding recorded by the appellate Court that there are interpolations in Ex.A1 - Will are perverse and the same is liable to be dismissed. A photostat copy of Ex.A1 is placed before this Court. It is nextly contended by the counsel for the appellant/plaintiff that the first appellate Court wrongly relied on the unregistered sale deeds Exs.B3 to B6 in coming to the conclusion that ABCD lane is a common lane. The reasoning of the first appellate Court in coming to the conclusion that the plaintiff (PW.1) failed to prove his case that ABCD portion is a common lane is as under. The evidence of PW.1 to the effect that ABCD lane is part and parcel of his house has been falsifies with the documents filed by DW.1 and therefore this Court is hesitating to accept the evidence of PW.1 whose evidence does not inspire confidence in the mind of the Court to the point making that PW.1 has prima facie case and balance of convenience to seek discretionary relief of permanent injunction. PW.1 is under legal duty to establish his exclusive possession of disputed lane as on the date of suit or before PW.1 M.Krishna Murthy has been examined to corroborate his claim in respect of ABCD lane. PW.2 introduces himself to be the vendor of vegetables and thereby claims to have resided in the house of PW.1 as a tenant from 1994 to 1999 by paying rents. He tries to convince the court as if PW.1 used the disputed lane for having access into his backyward. Unfortunately, there is no substantial evidence to prove that ABCD lane provides any access for the persons to move freely from the backyard of PW.1 into the main road running towards western side of the houses of PW.1 and DW.1. Exs.B1 and B2 photographs clinchingly discloses about the existence of roughly 2 ft. width in the disputed lane. Practically, it is impossible for any person to move into the main road running on western side of houses of PW.1 and DW.1 since it is very narrow in its kind. Ex.A1 - unregistered Will also does not clearly show that the northern side boundary is exclusive lane portion of the plaintiff. The conclusion of the first appellate Court as above is based on the evidence and involves a question of fact. The Second Appeal is misconceived and is accordingly dismissed. ________________ (V.V.S. RAO, J) 15.09.2011 KH