HON’BLE MR JUSTICE R. KANTHA RAO S.A.NO.93 OF 2004 DATED: 22.06.2011 BETWEEN: Bokka Venkanna .. Appellant And Geddaka Satyanarayanamma .. Respondent HON’BLE MR JUSTICE R. KANTHA RAO S.A.NO.93 OF 2004 JUDGMENT: This second appeal arises out of the decree and Judgment dated 09.06.2003 passed by the Senior Civil Judge, Razole in A.S.No.34 of 2001 reversing the decree and judgment dated 28.04.2001 passed by the Principal Junior Civil Judge, Razole in O.S.No.1 of 1995. I have heard Sri M.S.R.Subrahmanyam, learned counsel appearing for the appellant/defendant No.2 and Sri T.V.S.Prabhakar Rao, learned counsel appearing for the respondent/plaintiff. The brief facts necessary for considering the second appeal may be stated as follows: The plaintiff instituted the suit to declare her right in respect of “XXX” marked pathway for ingress and egress from her house which is marked as ‘A’ in the plaint plan. The plaintiff asserted that she became entitled to ‘A’ house property under the gift deed dated 25.02.1980 executed by her father in her favour and the appurtenant site under Ex.A.2-gift deed dated 29.04.1987 executed by Bokka Venkat Rao in her favour. Her case is that the house of ‘B’ marked portion in the plaint plan is the defendant’s house which is situate on the opposite row. “XXX” pathway is in between two rows of houses and that the plaintiff and her predecessor-in-title have been enjoying the path way from the time immemorial and she acquired the right of easement in respect of the said path way. On the other hand, the appellant/second defendant contended that the said path way exclusively belongs to him and the plaintiff/respondent has no right of passage through the said path way. The plaintiff examined herself as PW-1 besides examining other witnesses as PWs.2 to 5. Of them, PWs.2 to 4 have categorically stated about the existence of 9’ width path way running from north to south and the inhabitants of the locality using the said path way to reach Zilla Parishad Road which is situated on the northern side, Panchayat Road, Ramalayam and a Panchayat Well situate on the south. During the enquiry, advocate commissioner was appointed by the Court at the instance of the second defendant, who filed his report Ex.C.1 along with Ex.C.2 plan has categorically stated in his evidence that there are two rows of houses and steps of the plaintiff are projected in to the path way, which is running from north to south. He also stated in his evidence that the inhabitants of the residential houses on either side of the path way have been using the same. He also spoke about the existence of the drinking water well and bridge across channel on the southern side. He also deposed about his noticing traces of inhabitants using the said path way to reach the above mentioned places. The learned trial Court by resorting to meticulous examination the boundaries mentioned in the sale deeds filed by the defendant erroneously arrived at the conclusion that the plaintiff has no right to pass through ‘XXX’ marked path way and accordingly dismissed the suit. The learned first appellate Court upon considering the entire evidence adduced by the plaintiff, the admissions made by the defendant in his cross-examination and also the Commissioner’s report which is crucial to arrive at a decision on the disputed question rightly held that the respondent/plaintiff is able to establish her right over the path way and in fact, the inhabitants of the locality have been using the path way since long time. Thus, the learned first appellate Court reversed the judgment of the trial Court by thoroughly examining the evidence on record upon considering the facts and circumstances of the case and the findings arrived at by the first appellate Court are based on adequate reasoning. The second appeal was initially admitted on the following points: a) Whether, on the facts and in the circumstances of the case, the Lower Appellate Court judgment is not vitiated since it does not allude to the reasoning of the trial Court while reversing the trial Court decree. b) Whether, the Lower Appellate Court judgment is not vitiated in that it ignored the material evidence on record especially when Ex.B.2, if taken into consideration the result would have been otherwise and it proceeds on conjectures and surmises while reversing the trial Court decree. The above mentioned two points, in fact, do not constitute any substantial question of law which is sine quo non for exercising jurisdiction of this Court under Section 100 of the Code of Civil Procedure. The judgment of the first Appellate Court cannot be said to be either not based on evidence or perverse. This Court therefore, does not interfere with the finding of fact conclusively decided by the first appellate Court. There is absolutely no merit in the second appeal and the same is liable to be dismissed. Accordingly, the second appeal is dismissed. There shall be no order as to costs. ________________ Date: 22.06.2011 R. KANTHA RAO, J kvrm HON’BLE MR JUSTICE R. KANTHA RAO S.A.NO.93 OF 2004 DATE: 22.06.2011