THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.1341 OF 2010 Dated:05.08.2011 Between: Maddela Bangaraiah .. Appellant And Kamireddi Satyanarayana @ Gandhi .. Respondent THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.1341 OF 2010 JUDGMENT: The plaintiff is the appellant. He instituted O.S.No.28 of 2000 on the file of the Court of the Junior Civil Judge, Alamuru, for declaration of his title to a vacant space marked as A, A-1, A-2, A-3 (hereafter called as western site) and B, B-1, C, C-1, B-2, B-3 (hereafter called as eastern site) portions of the plaint plan, and to remove the unauthorized constructions in eastern site and delivery of vacant possession as well as permanent injunction restraining the defendant from interfering with his peaceful possession. The trial Court partly decreed the said suit in respect of eastern site denying the decree for the western site. The defendant’s appeal being A.S.No.26 of 2007 on the file of the Court of the Senior Civil Judge, Ramachandrapuram, was allowed setting aside the decree of the trial Court. Aggrieved by the same, the plaintiff is before this Court. The case of the plaintiff is as follows. The suit schedule property marked as A, B, C and D was gifted to the plaintiff by his mother. He constructed a building in ‘P’ marked portion leaving five feet width on eastern side and three feet width on western side. The defendant is the owner of ‘D’ marked portion and he constructed a terraced building by encroaching the site of the plaintiff in 1998 ignoring his objections and thereafter the defendant is trying to occupy the eastern site and western site. The defendant opposed the suit. He alleged that the plaintiff constructed the building in 1973 without leaving any vacant site. He, however, alleged that there is no doorway or window on the eastern side as stated by the plaintiff; that the portion where he constructed the house was gifted to him by the wife of Vuppuluri Prasada Rao, who is the defendant’s uncle. There are two buildings in item No.1 of the document. During trial, the plaintiff deposed as PW.1. His son-in-law was examined as PW.2. In addition, two other witnesses were examined as PWs.3 and 4 and Exs.A1 to A3 were marked. The defendant examined three witnesses and marked photographs cumulatively as Ex.B1. The trial Court believed the version of the plaintiff insofar as eastern site is concerned and partly allowed the decree, which was reversed by the first appellate Court. The counsel for the appellant submits that the plaintiff constructed the building in ‘P’ marked portion and opened ventilator and door way towards eastern side which itself suggests that he has right over the property and the first appellate Court has lost sight of the same. He also submits that the first appellate Court ought not to have given importance to the evidence PW.1. The plaintiff came with a specific case that while constructing his house in the property gifted to him by his mother under Ex.A2, he left ventilator and doorway towards eastern side. This was not corroborated by his witnesses. PW.2 is his son-in-law and PW.3 who is no other than niece, who categorically stated that there is no window left on the eastern side. This would strongly improbablises the case of the plaintiff that he has right over the eastern side. The first appellate Court gave cogent and convincing reasons for rejecting the case of the plaintiff. A question of law does not arise when the case is decided based on the finding of fact. The Second Appeal is, therefore, dismissed. There shall be no order as to costs. ________________ (V.V.S. RAO, J) 05.08.2011 KH