IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THE HON'BLE SRI JUSTICE B. PRAKASH RAO S.A. No.322 of 1996 Date: 08.10.2010 Between: Kunam Subba Rao and others. .....Appellants. AND Kunam Rama Rao and others. ....RESPONDENTS The Court made the following: THE HON'BLE SRI JUSTICE B. PRAKASH RAO S.A. No.322 of 1996 JUDGMENT: 1. The appellants are plaintiffs and the respondents are defendants in the suit. 2. Aggrieved by the judgment and decree, dated 22.2.1996, in A.S.No.119 of 1995, passed by the Court of Additional District Judge, Ongole, dismissing the appeal and confirming the judgment and decree, dated 23.8.1995, in O.S.No.54 of 1990 (O.S.No.436 of 1982 DMC Addanki), passed by the Court of I Additional District Munsif, Ongole, dismissing the suit for declaration of right of passage and for consequential permanent injunction. 3. The brief facts of the case, as emerged from the records, are that the plaintiffs 1 to 9 in the suit sought for a declaration of their right of passage in Z mark bazaar for all sorts of traffic and for consequential permanent injunction restraining the defendants from interfering with such right of the plaintiffs in any manner, and for declaration of the plaintiffs’ right of flow of rain water from A series sites abutting eastern side of Z marked galli towards south into Y marked main bazaar and for consequential permanent injunction restraining the defendants from causing any kind of obstruction to the said flow of water in any manner whatsoever, on the ground that plots A1 to A15 are the sites and houses belonging to the plaintiffs and plots B to B3 are the properties belonging to the defendants and that K marked space is passage for the owner on its north to go towards west and G marked space is the passage set apart for ingress and egress from Z marked lane to reach plots A2 and A6 and that Z marked bazaar is of the width of 13 links set apart by the owners of A series and B series for their ingress and egress about a century ago, and that plots C and C1 are the properties belonging to Mellacharuvu pitchaiah Sarma, and that plots A1 to A3 originally belonged to common ancestors viz., Ramana and his brothers and plots A4 and A15 belonged to Kunam family originally, and that the owners of A series and B series have perfected their right of passage over Z marked passage in the entire width of 13 links for their men, cattle and all sorts of traffic by their continuous user peacefully and uninterruptedly and openly for all these years, and that rain water from A series plots abutting either side of Z marked galli used to flow into Z marked galli and flow towards south into the Y marked main bazaar for the last more than a century, and that since two days the defendants 1 and 2 are threatening to encroach further into Z marked bazaar to the east of plot B 1 and are making arrangements for the same and that though the 3rd defendant did not interfere with the plaintiffs’ rights, he is impleaded as a proper party to the suit. However, having regard to the interference and encroachment made by the defendants, it necessitated the plaintiffs to file a suit for the said reliefis. 4. Contesting the said claim of the plaintiffs, the defendants denied any such right as claimed by the plaintiffs in respect of the said Z bazaar and further the 1st defendant stated that the plaint plan is incorrect, and that the site to the east of plot B1 absolutely belongs to the 1st defendant and his wife and is not a galli or bazaar and that the site situated to the east of plot A-15 belongs absolutely to the owners of plots A-14 and A-15 and is not a galli and that the site situated to the east of plot B3 was kept joint by the owners of B series plots for ingress and egress from Y marked bazaar to B series houses only and that owners of A series properties have nothing to do with it and never exercised any right of passage or right to send rain water through that site, and that the plaintiffs intentionally omitted to show the bazaar on the western side of their sites to which all the them are having passages for ingress and egress from their respective plots and the western bazaar is continuation of Y marked bazaar which took a turn towards north from the south-western corner of B series plots and that the rain water from A series plots used to flow towards west from their respective plots and reach the said bazaar and it further contended that there was no such existing of huge water at any point of time earlier nor any exercise of any right of passage or sending the water through the Z bazaar into Y market bazaar, that apart with the interference of the local politicians, the plaintiffs 1 to 8 in collusion with 9th plaintiff and 3rd defendant filed the suit, that therefore, either on merits or on facts, no such relief could possibly be granted. 5. Defendants 2 and 3 filed written statements before the trial Court on the same lines as that of the 1st defendant. 6. Basing on the pleadings, the trial Court framed the following issues for trial: 1. Whether the plaintiffs are entitled for declaration and for consequential permanent injunction as prayed for? 2. Whether the suit is bad for non-joinder of necessary parties? 3. Whether the suit is bad for misjoinder of cause of action? 4. Whether the court fee paid is incorrect? and 5. To what relief? 7. During the course of trial of the suit, the 6th plaintiff was examined as P.W.1, the 8th plaintiff was examined as P.W.2, the 9th plaintiff was examined as P.W.3 and also examined P.Ws.4 to 6 and marked Exs. A-1 to A-6 on behalf of the plaintiffs; and the 2nd defendant was examined as D.W.1 and examined D.Ws 2 to 4 and marked Exs.B- 1 to B-13, besides Exs.C-1 to C-4 on behalf of the defendants. 8. On appraisal of the evidence on record thereof, the trial court did not believe the version of the plaintiffs and dismissed the suit. Mainly it was pointed out in the judgment of the trial court that apart from oral evidence, as produced on behalf of the plaintiffs, even the documents which were sought to be pressed into service, especially Ex.A-1 to A-6, cannot go against the defendants as these documents are in between the other parties and the plaintiffs. Further that, considering the depositions of each witnesses and the documents as filed on behalf of the plaintiffs, the evidence of both oral and documentary filed on behalf of the defendants, especially that of Ex.B-1 to B-3, it was held that the plaintiffs have utterly failed to establish any such exclusive right in their favour as was existing or otherwise and, therefore, they are not entitled to any relief, much less the releifs sought for declaration of their right of passage in Z mark bazaar for all sorts of traffic and for consequential permanent injunction restraining the defendants from interfering with such right of the plaintiffs, though on the other point as to the non- joinder of necessary parties, the finding is given against the defendants 9. Further, the existence of vacant site to the east of plots B1 and B-3 in continuation of the admitted Z marked galli, cannot be disputed. It is evident from the Commissioner’s reports Ex.C-1 and C-3 and the commissioner’s plans Exs.C2 and C4. The question is whether the vacant site to the east of plots B-1 and B-3 was also left by the predecessors of the defendants as a galli for the northern owners. The further question is whether the plaintiffs have got any right of passage through the site lying to the east of plots B1 and B3. without any basis in the plaint P.W.1 goes to the extent of saying that except Z marked galli they have no other way to go to Y marked galli they have no other way to go to Y marked bazaar. On the other hand, the lower appellate court held that there is no material produced on behalf of the plaintiffs so far as the existing of the Z mark bazaar and the exclusive rights thereof by the plaintiffs. Considering the relevant documents produced from both sides, the appellate court itself in entire agreement with the reasoning of the trial court apart from considering Ex.C-1 Commissioner’s report. Therefore, the appellate court held that the plaintiff has failed to show that they have got any right of passage in the site lying to the east of plots B1 to B3 i.e., the disputed portion of the galli. Further the evidence on record shows that the defendants constructed their terracedhouse about twenty to thirty years ago and raised pancha during that time enclosing portion of eastern site. Further, the defendants have been tethering their cattle and placing their tubs in the eastern site. Therefore, simply because through some available vacant site some of the plaintiffs sporadically pass through, it will not confer any rights of passage on the plaint in the site lying to the east of plots B1 and B3. In view of these findings arrived by both the courts below, it is quite apparent that the said findings are based on facts and material available on record. 10. Though the learned counsel appearing for the appellants took strenuous efforts to take this court once again to entire evidence and material on record and having heard the arguments set forth virtually ran into the factual matrix and on merits calling upon this court once again reconsidering the entire evidence and material. However, this has to be seen that having regard to the limited scope and jurisdiction of this court under Section 100 C.P.C, there cannot be any such re- appreciation or reconsideration or re-looking of evidence. Having regard to the facts and circumstances of the case and in view of the material placed by both sides, this court is of the opinion that the appellants have totally failed to make out any case so as to enable this court to call for interference. There are no merits in this appeal and the appeal is dismissed. 11. Accordingly, the appeal is dismissed. There shall be no order as to costs. ___________________ B. PRAKASH RAO October 8th , 2010 GK THE HON’BLE SRI JUSTICE B. PRAKASH RAO S.A. No.322 of 1996 October 8th, 2010