THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL Nos.99 and 789 of 2009 Dated:25.08.2009 Between: Simhadri Varadha Rama Rao. …Appellant and Simhadri Venkata Ratnam, And others. …Respondents. THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL Nos.99 and 789 of 2009 COMMON JUDGMENT: As both the appeals are filed by the same appellant and arise out of a common judgment dated 05.06.2008 in A.S.Nos.24 and 25 of 2007 passed by the Court of the Senior Civil Judge, Tanuku, it is appropriate to dispose of both the second appeals by a common order. In this common order, for the sake of convenience the parties are referred to by their status in the suit. The appellant is the first defendant in O.S.No.374 of 1998 on the file of the Court of the I Additional Junior Civil Judge, Tanuku. Simhadri Veera Raghava Rao and the appellant herein are brothers. Veera Raghava Rao and his two sons filed the suit for permanent injunction restraining the appellant and another from interfering with peaceful possession and enjoyment of plaint schedule property admeasuring Ac.0.51 cents in R.S.No.608/3 situated at Duvva Village at Tanuku Mandal in West Godavari District. The first defendant filed a counter claim petition seeking injunction against the plaintiffs. After regular trial, learned Junior Civil Judge dismissed the suit filed by the plaintiffs and decreed the counter claim. Aggrieved thereby, plaintiffs filed two appeals – A.S.No.24 of 2007 against the suit, and A.S.No.25 of 2007 against the counter claim. During the pendency of the suit itself, Veera Raghava Rao died and respondent Nos.3 (his wife) and respondent Nos.4 to 6 (daughters) were brought on record as legal representatives. The appellate Court by judgment and decree dated 05.06.2008 reversed the trial Court and allowed the appeals granting injunction in favour of the respondents (plaintiffs). It is the case of the first plaintiff that during the oral partition between first plaintiff and his brother/first defendant he got an extent of Acs.7.24 cents, that subsequently he sold away Acs.5.04 cents to third parties and retained Ac.1.69 cents in R.S.No.608/1 and Ac.0.51 cents in R.S.No.608/3 which is the suit schedule property. He also alleged that second defendant (seventh respondent herein) filed O.S.No.290 of 1989 against the plaintiffs for permanent injunction and by judgment and decree dated 10.11.1997 the same was dismissed. He also alleged that he was in possession of the property, but defendants threatened coolies and other persons who went to plough the land, and hence the suit for injunction. First defendant opposed the suit alleging that in the partition he got Acs.7.05 cents including the suit schedule property and that he is in possession of the land admeasuring Ac.0.63 cents and R.S.No.608/1 and Ac.1.01 cents in R.S.No.608/3 including the suit schedule property. He also alleged that it is the plaintiffs who are trying to interfere with his possession, and therefore, he made a counter claim. Second plaintiff (first respondent herein) gave evidence as P.W.1. P.Ws.2 and 3 were also examined, and Exs.A1 to A6 were marked. First defendant gave evidence as D.W.1 and marked Ex.B1. On considering the evidence, the trial Court came to the conclusion that plaintiffs did not adduce any reliable documentary evidence except oral evidence of P.Ws.1 to 3 to show that they were in possession of the property, and accordingly dismissed the suit. The appellate Court, however, on considering the evidence came to the conclusion that plaintiffs proved their case and reversed the trial Court. Learned Counsel for the appellant in both the appeals submits that the Courts below ignored admissions made by the plaintiffs and misread Exs.A1 and A2, and therefore, the judgments suffer from error. This Court has perused the judgment of the trial Court as well as the judgment of the appellate Court. Both the Courts considered the oral and documentary evidence. There was a difference between the two in drawing inference and arriving at conclusions. Though the trial Court referred to Ex.A2 – bunch of land revenue receipts, the trial Court rejected these observing that they do not contain the survey number or extent of the land. Trial Court also rejected the evidence of P.Ws.1 to 3 on the ground that there are inconsistencies. Coming to the judgment of the appellate Court, after framing three points for consideration, the Court came to the conclusion that there was no clear evidence to show that plaintiffs and first defendant were in exclusive possession of the property and accordingly, allowed A.S.No.24 of 2007 filed by the plaintiffs against O.S.No.374 of 1998 and dismissed A.S.No.25 of 2007. The consideration of the appeals by the first appellate Court was mainly based on the facts and question of law would not arise. Therefore, Second Appeals would not lie. Both the Second Appeals are, therefore, dismissed. There shall be no order as to costs. _______________ (V.V.S.RAO, J) 25.08.2009 vs