THE HONOURABLE SRI JUSTICE A.GOPAL REDDY S.A.No.466 of 2009 Date of Judgment: 30—10—2009 Between 1.Chundru Appa Rao and others ..Appellants And Malireddy Venkanna ..Respondent The court made the following Judgment: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY S.A.No.466 of 2009 Oral Judgment: 1. Defendants, who are unsuccessful in the courts below and suffered a decree for perpetual injunction, filed this appeal questioning the judgment and decree dated 20-03-2009 passed in A.S.No.106 of 2006 by the I V Additional District Judge, East Godavari, Kakinada wherein he confirmed the judgment and decree dated 18-04-2006 passed in O.S.No.1263 of 1998 by the I Additional Junior Civil Judge, Kakinada decreeing the suit of the plaintiff. 2. Plaintiff, who is the owner of plaint schedule property situated in China Brahmadevam village and also in G.Medapadu village, filed the suit for permanent injunction restraining the defendants and their men from claiming any right of passage over the land of the plaintiff to reach the lands of the defendants contending that there is a green marked Government passage in China Brahmadevam village in Sy.No.313 and a channel shown in curved line in the lands of the plaintiff in Sy.No.325 of China Brahmadevam village and Sy.No.218/1 of G.Medapadu village. The said channel is a Ryotwari Bodi. The plaintiff formed a passage in his land to be exclusively used by him to reach his lands in Sy.Nos.325, 218/1, 2, 3 and 4 and it is shown in red colour in the plaint plan. The defendants were having lands in Sy.Nos.216 and 217 of G.Medapadu village and not adjoining to the plaintiff’s lands but far away. In between the lands of plaintiff and defendants there are lands of Kanchumarthi people and others. Since the defendants have no right for access directly from the land of the plaintiff or their predecessors-in-title never exercised any right of passage over the land of the plaintiff and they started proclaiming in the village that they will use the passage, they should be restrained permanently. 3. The 1st defendant filed a written statement. The sum and substance of the same is as under: The members of the defendants’ family owned Ac.10.82 cts. by the side of the red marked passage shown in the Commissioner’s plan and the red marked passage is the only access to reach their lands for cultivation, for the passage of men, tractors and carts. Therefore, the plaintiff has no right to obstruct the defendants from using the red marked pathway and he is not entitled for permanent injunction. 4. The defendants 2 and 3 filed a memo adopting the written statement filed by the 1st defendant. 5. Additional written statement was filed by the 2nd defendant after amending the plaint. The admission made by the plaintiff before its amendment is as follows: “There is a channel shown in curved line in the lands of the plaintiff in Sy.No.325 of China Brahmadevam village and Sy.No.218/1 of G.Medapadu village; the said channel is a Government channel”. It is stated that except Ryotwari Bodi there is no other separate passage formed by the plaintiff as alleged by him for the exclusive use of his lands. Therefore, the plaintiff is not entitled to obstruct the use of the Ryotwari Bodi by other ryots who have lands on either side of it. 6. Basing on the above pleadings, the following issues are framed for trial: 1. Whether the plaintiff is entitled for permanent injunction as prayed for? 2. To what relief? 7. During the course of trial the plaintiff himself was examined as P.W.1, his eldest son was examined as P.W.2 and got marked Exs.A1 to A6. On behalf of defendants, 1st defendant was examined as D.W.1, four more witnesses were examined as D.Ws.2 to 4 and got marked Exs.B1 to B7. 8. The learned trial court after taking into consideration the oral and documentary evidence including the admissions made by the defendants in the cross-examination wherein D.W.1 admitted that under Ex.A5 he executed a mortgage deed in favour of Medapadu Multi- Purpose Cooperative Society and under Ex.A6 there is no mention about any passage to them through the lands of the plaintiff or about the existence of any Government Punta through the lands of the plaintiff. To a question posed by the plaintiff’s counsel it is answered that they are not claiming any passage specially through the land of the plaintiff as passage. After extracting the various admissions made by D.Ws.1 to 8 in an elaborate judgment the lower Court concluded that though the defendants alleged that their predecessors-in-title have been using the passage as a right since times immemorial, failed to produce any evidence either documentary or oral. The evidence of D.Ws.1 to 7 reveals that the passage belongs to the plaintiff and the defendants failed to establish their right to use passage. D.W.8—Deputy Inspector of Survey and Land Records also admitted the detail channel means the channel that was formed by ryots in their own lands and it is also called Ryotwari Bodi, which forms part of Zeriothi lands and third parties cannot encroach upon the Ryotwari Bodi and accordingly decreed the suit of the plaintiff. 9. On appeal being filed the lower appellate Court after reappraising the entire oral and documentary evidence dismissed the appeal holding that Exs.A1 to A3 are the field maps of Sy.Nos.325, 218 and 216 issued from the office of M.R.O., Samalkot and in the said maps there is no mention of any Government passage. D.W.1 in his cross-examination admitted that he did not know whether there is any Government land abutting the plaintiff’s land and the Advocate Commissioner’s report also reveals that there is no Government Puntha in Sy.No.328 of China Brahmadevam village and in Sy.Nos.216 and 218 of G.Medapadu village and there is no passage in between Sy.No.325 of China Brahmadevam village and Sy.Nos.216 and 218 of G.Medapadu village and the disputed passage forms part of the land of the plaintiff covered by Sy.No.325 of China Brahmadevam village and Sy.No.216 of G.Medapadu village. Thus, the defendants failed to establish their right of way and they are not entitled to use the passage. 10. The concurrent findings recorded by the lower court on appreciation of evidence, as referred above, though the defendants pleaded that their predecessors-in-title are using the passage, failed to establish the same and the admission made by the 1st defendant also goes to show that he is not claiming any right by way of easement, do not give rise any substantial question of law to be decided in this Second Appeal and it is accordingly dismissed. No costs. _________________ A.GOPAL REDDY, J. 30-10-2009 Murthy