THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR SECOND APPEAL NO.156 OF 1999 DT.19.08.2010 Between: S.Khader Basha and five others ………….Appellants Vs. K.V.Subbaiah and four others ……………Respondents Counsel for the appellants: Sri Kowturu Vinaya Kumar Counsel for the respondents: Sri K.Somakonda Reddy The Court made the following: JUDGMENT: This second appeal is directed against the judgment, dated 11.12.1998 passed in A.S.No.14 of 1996 by the learned IV Additional District Judge, Kurnool (‘Lower Appellate Court’, for brevity) whereby and whereunder, the judgment, dated 22.01.01996 passed in O.S.No.166 of 1989 by District Munsif, Dhone (‘trial court’ for brevity) has been confirmed. The parties will be referred to as they are arrayed before the trial court, for the sake of convenience. The plaintiffs filed the suit for permanent injunction restraining the defendants, their men, agents, servants, etc., from encroaching into the public rastha shown in the plaint plan in S.No.253/A of Dhone Village. On behalf of the plaintiffs, PWs.1 to 8 were examined and Exs.A-1 to A-5 were marked. On behalf of the defendants DWs.1 and 2 were examined and Exs.B-1 to B-3 and Exs.C-1 and C-2 were marked. The main dispute between the parties is with regard to the rastha between the houses of the plaintiffs and the defendants’ running East to West starting from National High Way No.7 at Abbireddipalli rastha. The plaintiffs’ case is that this rastha has been in use since time immemorial and that now the defendants are closing this rastha. The defendants’ case is that it is their private rastha left by them for the purpose of taking lorries to their kiln and now the kiln is closed by erecting standing stones with barbed wire to prevent indiscriminate use of the said rastha by others. The trial court appointed an Advocate-Commissioner and he submitted his report on 7.8.2002. When the plaintiffs are claiming that the rastha is a public rastha, they have to file a suit seeking declaration that the rastha is a public rastha. Admittedly, the plaintiffs have not filed any suit for declaration, but they filed the suit for bare injunction. Now the plaintiffs’ case is that it is a public rastha. However, burden lies on them to show that the rastha has been continuously used for more than 20 years and that they have acquired easementary right to use the same. The trial court has given a finding that except the evidence of PW-2, which is not satisfactory, there is no other evidence to show that the said rastha is a public rastha. Admittedly, no record of the Gram Panchayat has been filed to show that the disputed rastha is a public rastha or as it has been used as such since time immemorial. None of the officials of the Gram Panchayat or Revenue Department has been examined. No documents are called from those offices. The report of the Advocate-Commissioner disclose the existence of a kiln and it supports the case of the defendants. The trial court also observed that even the sale deeds of plaintiffs in Exs.A-2 to A-4 and Ex.B-2 did not show the existence of any public rastha on the other side of their plots. Recitals of all the sale deeds go to show that the rastha is in front of plaintiffs’ houses i.e., on the northern side of their houses. There is no reference of rastha on the southern side of the plaintiffs’ plots in those sale deeds. The trial court held that no evidence has been adduced by the plaintiffs to prove their case. The lower appellate Court, after going into the entire evidence, held that to claim prescriptive rights over the disputed site, the plaintiffs’ should establish their case and that it is for the plaintiffs’ to prove that they are using the said rastha for more than the statutory period. The Lower Appellate court also held that PWs.1, 3, and 5 to 7 are the plot owners. PW-4 is an Advocate Commissioner. PW-8 is an independent witness and he admitted that he constructed a house in the year 1987, whereas the suit is filed in the year 1989. The lower appellate court also observed that the plaintiffs though claimed that the disputed rastha is a public rastha, failed to establish the same by filing the lay out plan and failed to show that the rastha is in existence prior to their purchase. The lower appellate Court also observed that though there is a mention about the rastha towards southern side of the plaintiffs’ plots, but its width is shown as only one yard and thus, they have failed to establish their case. I have gone through the judgments of both the Courts below, which are concurrent. There is nothing on record to say that the concurrent findings of both the courts below are perverse or that they are not based on evidence. It appears that the courts below have properly appreciated the evidence while interpreting the principles envisaged for deciding the rights by way of prescription and easementary rights. Hence, I hold that there are no merits in the appeal and is liable to be dismissed. Accordingly, the Second Appeal is dismissed. There shall be no order as to costs. ______________________ B.CHANDRA KUMAR J., Dt.19.08.2010 tjs