IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE NINETH DAY OF OCTOBER TWO THOUSAND AND NINE PRESENT THE HON'BLE SMT JUSTICE T.MEENA KUMARI SECOND APPEAL NO :821 of 2009 Between: J.G. Hemanth Kumar ..... APPELLANT AND J.G. Harigopal. .....RESPONDENT The Court made the following : HONOURABLE SMT.JUSTICE T.MEENAKUMARI SECOND APPEAL No.821 of 2009 JUDGMENT: This appeal arises out of the decree & judgment, dated 10.8.2009 passed in A.S.No.64 of 2008 by the learned III Additional Chief Judge, City Civil Courts, Hyderabad, confirming the judgment and decree, dated 31.12.2007 passed in O.S.No.2708 of 2004 by the learned X Junior Civil Judge, Hyderabad. The appellant herein is the plaintiff and the respondent is the defendant in the suit in O.S.No.2708 of 2004. For the sake of convenience, the status of the parties will hereinafter be referred to as arrayed in the suit. Originally, the plaintiff filed the suit in O.S.No.2708 of 2004 for perpetual injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the suit schedule property viz., car shed in the lane admeasuring 17.4 feet situated at Vidya Nagar, Hyderabad. The case of the plaintiff in brief is as follows: The defendant is his elder brother and one J.G. Rajendra Kumar is his younger brother and they are the sons of one late M. Govind Rajulu and during his life time, the said Govind Rajulu purchased the house bearing No.308 TRT, Municipal No.2-2-3/317 admeasuring 286.84 sq. yards situate at Industrial Labour Colony, Vidya Nagar, Hyderabad from the Government of A.P., rep., by Commissioner of Labour, Hyderabad. After his death, the plaintiff, defendant and his younger brother partitioned the said house under a registered partition deed dated 10.9.2003, by virtue of which, the defendant, plaintiff and their brother Rajendra Kumar had got their respective shares described as portions A, B & C respectively in the plan annexed to the partition deed. Ever since the date of the said partition, they are enjoying their respective shares as absolute owners thereof. At the time of partition, a lane admeasuring 6 feet in width and 53 feet in length in between B portion belonging to the plaintiff and A and C portions belonging to the defendant and their younger brother, was left as common for all, for the convenience sake. On 10.10.2003, they had amicably and orally divided the said lane among them and each one of them got 6 feet x 17 feet 8 inches lane adjacent to their respective portions and the plaintiff erected a car shed in his share of lane i.e., suit schedule property and sliding gate thereto and also keeping his car therein. Underneath the car shed, an old water sump, which was fallen to his share, exists and he has been exclusively using the said car shed and water sump. The defendant and their younger brother have dug a new water sump in their respective portions of the said lane. The defendant is not having any right, title and interest in and over the suit schedule property nor having any manner of right to interfere with his peaceful possession and enjoyment over the suit schedule property. While so, on 12.6.2004, the defendant had tried to interfere with the peaceful possession and enjoyment of the plaintiff over suit schedule property and demanded to remove the car shed in the suit schedule property within a period of three days, otherwise he would dismantle it. The averments in the written statement filed by the defendant are as follows: In the year 1994, his father gifted him a portion of the house bearing No.308 TRT, by way of Gift Deed dated 18.4.1994 admeasuring 89.07 sq. yards and allowed his brothers to take undivided portion viz., 107 sq. yards to the plaintiff and 90.04 sq. yards to another brother J.G. Rajendra Kumar in partition and after the death of their father in the year 2003, the plaintiff got prepared a partition deed dated 10.9.2003 without notice and made him to sign. There is no extra 6 x 53.1 feet lane in between A, B and C properties and there is no whisper in the entire contents of the partition deed. The partition of the alleged six feet lane in between A, B, C schedule properties in the partition deed is only a creation by the plaintiff and there is no oral agreement among the brothers in respect of division of the alleged lane and there is no possibility of forming a lane in between the properties partitioned. The plaintiff occupied the premises belonging to the defendant under the guise of ad interim injunction obtained in I.A.No.794 of 2004. He has constructed a sump over A schedule property on his own and using the sump constructed by his father late Govind Rajulu and he has constructed a shed to drain away the water falling from both the sumps, but the same is claimed by the plaintiff. He never interfered with the peaceful possession and enjoyment of the plaintiff’s portion of property, much less, on 12.6.2004. According to the partition deed and gift settlement deed, ‘A’ schedule property comes to his share and the plaintiff was never in possession of the suit schedule property and was enjoying the same by suppressing the material facts and creation of false documents and obtained the exparte orders from the Court and took possession of the same. The plaintiff took their father Govind Rajulu to Nizamabad to execute a gift settlement deed on 30.11.1997 and to sign on the document. He obtained a sanction plan from the MCH and raised the construction in the A schedule property which includes the alleged suit schedule property, after obtaining the bank loan. He obtained no objection certificate from his father, the plaintiff and one M. Nagaraju, who is his neighbour, apart from obtaining the clearance certificate from APHB Commissioner of Labour, A.P., Hyderabad. The plaintiff is not entitled for any relief much less the relief claimed in the present suit. Before the Court below, in order to substantiate his case, the plaintiff examined himself as P.W.1 and also examined P.Ws.2 & 3 and got Exs.A1 to A13 on his behalf. The defendant examined himself as D.W.1 and got marked Exs.B1 to B6. Exs.B4 (A) to (B) were marked during the cross-examination of D.W.1. On appreciation of the evidence on record, the Court below dismissed the suit. Hence, the plaintiff carried the matter in appeal, in which, the judgment of the Court below was confirmed. Having aggrieved by the same, the present appeal has been filed. Heard the learned Counsel and perused the material available on record. The scope for interference with concurrent findings of the fact while exercising jurisdiction under section 100 C.P.C. is very limited. In case of perverse findings only, the question of fact will be appreciated in a case of this nature. The main dispute between the parties is only with regard to the passage alleged to have existed in between the portions of the plaintiff and the defendant. According to the plaintiff, he got the lane towards his share in an oral partition. The material on record goes to show that the documents marked on behalf of both the parties do not disclose the existence of any common passage. The Commissioner also mentioned in his report that there is no lane in A to C schedule properties. In the absence of any evidence as to the existence of lane, the contention of the plaintiff that he got the lane in an oral partition and he erected a car shed therein and the defendant tried to interfere with the same, cannot be believed. In this regard, on appreciation of the evidence viz., oral and documentary, both the Courts below arrived at a conclusion that there is no such passage lying in between the portions of the plaintiff and the defendant. The findings of both the Courts below, which are in consonance with the evidence on record, are concurrent and are on sound reasoning and in proper perspective and I do not find any perversity in those findings. Apart from that, the grounds raised in the second appeal, do not constitute any substantial question of law. In view of the foregoing discussion and in view of the concurrent findings of both the Courts below as to the facts in question and in view of the memorandum of grounds, which do not constitute any substantial question of law, I see no merits in this second appeal and the same is liable to be dismissed. In the result, this second appeal is dismissed. No costs. ______________________ Justice T.Meenakumari Date: 9th October, 2009. Nn HONOURABLE SMT.JUSTICE T.MEENAKUMARI Second Appeal No.821 of 2009 09.10.2009