HON’BLE SRI JUSTICE R.KANTHA RAO SECOND APPEAL No.130 of 2000 Date:28-12-2011 Between: Anne Visweswara Rao (died) per LRs. …Appellant And Anne Srirama Murthy and others …Respondents HON’BLE SRI JUSTICE R.KANTHA RAO SECOND APPEAL No.130 of 2000 Date:28-12-2011 JUDGMENT: This second appeal is directed against the decree and judgment dated 17.01.2000 passed by the III Additional Senior Civil Judge, Vijayawada in A.S.No.4 of 1998 reversing the judgment and decree dated 04.12.1997 passed by the I Additional District Munsiff, Vijayawada in O.S.No.1547 of 1994. 2. Heard the learned counsel appearing for the appellant and the respondents. 3. For the sake of convenience, the parties will be referred to as “the plaintiff and the defendants”. 4. The brief facts giving rise for filing the second appeal may be stated as follows: The plaintiff and the first defendant are the brothers. The defendants 2 and 3 are the sons of the first defendant. The 4th defendant is the tenant of the defendants 1 to 3. The plaintiff is the owner of the plots 1 to 3 as shown in the plaint plan. The land of first defendant is shown as plot No.4. It is further averred in the plaint that there is a joint pathway in plot No.4 shown as ‘OPQN’ in the plaint plan and it leads to Kankipadu-Gannavaram road towards East through R.S.No.48. The said joint pathway is being used by the plaintiff and the defendants and their predecessors since time immemorial. The width of the joint pathway is 20 feet and its length is about 450 feet. The said pathway is being used by both the parties for taking their carts, cattle etc. for their ingress and egress and for the purpose of taking agricultural produce and manure from their respective lands up to the road. It is further averred that there is no other way for the plaintiff except the said joint pathway to reach the Eastern side main road and vice-versa during the agricultural operations from November to June every year. The plaintiff has been enjoying his lands with a right of pathway since time immemorial as a customary easement, easement of necessity and also by prescription over the statutory period. The plaintiff and the first defendant got divided their joint family properties under a written partition list dated 02.09.1963 after the death of their father. In the said partition, the plaintiff got plots 1 to 3 and the first defendant got plot No.4. It is further averred that on 28.11.1994 when the plaintiff tried to pass through the said pathway with his men and bullock cart to thrash the paddy heap, the defendants obstructed him and did not allow him to pass through the ‘OPQN’ pathway and again on 29.01.1994 also the defendants obstructed the plaintiff and his men and threatened them with dire consequences. The defendants started constructing barbed wire fencing by erecting poles all along the Eastern boundary in R.S.No.49 including ‘OPQN’ pathway. The defendants have recently developed a hostile attitude towards the plaintiff as he filed suit for recovery of Rs.240/- from the second defendant. The suit was decreed in favour of the plaintiff on 31.08.1994. The defendants are trying to convert their land into wet with a view to obstruct the movement of the carts of the plaintiff. The defendants have no right to obstruct the plaintiff to pass through the joint pathway and to block it with any fencing. The first defendant also filed a similar suit in OS NO.177 of 1978 on the file of the District Munsiff, Vijayawada and obtained an ex parte permanent injunction to pass through the land in R.S.No.48 to reach the main road. It is further averred in the plaint that the crops of the plaintiff will be spoiled if he is not allowed to use the joint pathway. 5. The defendants 2 to 4 remained ex parte before the trial Court. The first defendant filed his written statement contending that there is no joint pathway shown as ‘OPQN’ in the plaint plan in his plot No.4. It is denied that there is joint pathway of 20 feet in width and 450 feet in length and that they have been using the said pathway for taking their carts and cattle to reach Kankipadu-Gannavaram road from their respective lands. It is further contended that the plaintiff has no right of easement of necessity and also by prescription, that there is no joint pathway and it is not in existence at any point of time and in fact, their parents partitioned the properties in the year 1933 and at that time, the property shown as plot Nos.2 and 3 was not in the property of their ancestors. Subsequent to the partition, their father purchased the property shown as plot Nos.2 and 3 and at that time also, the owners of the land in R.S.No.48 objected their father to transport the crop and they have no right to go through the other fields. It is further contended that the plaintiff got 64 ½ cents in R.S.No.50 which is situated towards northern side of plot No.4 and he sold the same to Nersu Gangadhara Rao in the year 1987. It is also contended that if there was any right to the plaintiff to go through the plot No.4, the plaintiff ought to have reserved his right of pathway in the said land as it was abutting to the alleged pathway and he has no other way to reach the main road except through the land in R.S.No.48 which was acquired by the government in the year 1977 and the same was allotted to the poor people for construction of houses, then he filed a suit for the purpose of passage to transport his crop in plot No.4 through R.S.No.48, and if really, the plaintiff is having any right or interest in the alleged pathway, he ought to have joined as party in the suit filed by him. It is also contended that the plaintiff is having another easementary right of pathway towards his Western side. 6. This second appeal is preferred by the defendants. The plaintiff filed the suit for permanent injunction against the defendants restraining them from interfering with the peaceful enjoyment of the joint pathway OPQN by making fencing and to remove any obstruction to the pathway during agricultural operations i.e. from November to June every year. The trial Court dismissed the suit. The appeal in A.S.No.4 of 1998 preferred there-against by the plaintiff was allowed by the learned first appellate Court setting aside the decree and judgment passed by the trial Court. Feeling aggrieved, the defendants preferred the present second appeal. 7. The second appeal has been admitted considering the involvement of the following substantial questions of law for determination: a) Whether the plaintiff is entitled for the relief of permanent and mandatory injunction against the defendants under customary right of easement or easement of necessity, even though he got an alternative pathway to reach his land? b) Whether the plaintiff is entitled to exercise his right of passage even when crops are existing in the land of the defendants? 8. In fact, the substantial question of law raised in the grounds of appeal i.e. whether the plaintiff is entitled to exercise his right of passage even though his crops are existing in the lands of defendants is purely a question of fact which cannot be raised for determination in the second appeal as one of the substantial question of law. 9. The plaintiff and the defendants are brothers. They partitioned their properties, during which plot Nos.1 to 3 mentioned in the plaint plan fell to the share of the plaintiff and plot No.4 fell to the share of the defendant No.1. The contention of the plaintiff is that there is joint pathway in plot No.4 mentioned as OPQN in the plaint plan and the said pathway which is in R.S.No.48 is being used by the plaintiff and also defendants and their predecessors-in-title since time immemorial. The pathway is said to be 20' in width and 450' in length. It is the specific case of the plaintiff that both the parties have been using the pathway for taking the carts, cattle etc. and also for taking manure and agricultural produce. According to the plaintiff except the said joint pathway, there is no other way for him to reach the main road on the eastern side road which is called as Kankipadu-Gannavaram road. He contended that prior to filing of the suit by him, the defendants developed a hostile attitude towards him as he filed a suit for recovery of an amount of Rs.240/- from the second defendant and the same was decreed in his favour. This apart, it appears that there were disputes between him and the first defendant. It is said that the first defendant erected a fence and tried to prevent access of the plaintiff to the said pathway. It is under these circumstances, the plaintiff filed the suit for injunction restraining the defendants from interfering with the user of schedule mentioned pathway. 10. Before the trial Court the defendants 2 to 4 remained ex parte and the first defendant alone contested the suit. 11. The contention of the first defendant as it would appear from the written statement filed by him is that the OPQN pathway is not a joint pathway, plot No.4 exclusively fell to his share, the plaintiff has no right to pass through the said pathway. He has no right of easement of necessity nor he has acquired right of easement by prescription. According to the first defendant, the plaintiff has another way to reach Kankipadu-Gannavaram road, but he has no right of access to the said road through the schedule mentioned pathway. 12. Before the learned trial Court, PWs.1 to 6 were examined on behalf of the plaintiff and Exs.A-1 to A-12 were marked. On behalf of the defendants DWs.1 to 4 were examined and Exs.B-1 to B-4 were marked. The learned trial Court considering the entire evidence on record, dismissed the suit of the plaintiff on the ground that he failed to establish the existence of the said pathway. However, the learned first appellate Court accepting the evidence adduced on behalf of the plaintiff in proof of his easementary rights reversed the finding of the learned trial Court and decreed the suit filed by the plaintiff as prayed for. The plaintiff who was examined as PW-1 and PWs.2 to 6, the other witnesses examined on his behalf have categorically stated in their depositions about the existence of the right of the plaintiff to use the OPQN pathway and according to them except the said pathway, there was no other way for him to reach Kankipadu-Gannavaram road. Their evidence also further discloses that the said pathway is being used as such since the time of ancestors of the plaintiff. It is also borne out from their evidence that the agriculturists, more particularly, in the harvesting season carry their produce through the lands of others and it is quite common in their village. 13. On the other hand, the first defendant as well as the witnesses examined on his behalf stated that the plaintiff has another way to reach Kankipadu-Gannavaram road, but they were unable to explain the location of the said road. As rightly held by the first appellate Court, the defendants could not be able to demonstrate by adducing any sort of evidence that there was alternative way for the plaintiff to reach Kankipadu-Gannavaram road. Moreover, the plaintiff filed a petition seeking appointment of commissioner to show the existence of the schedule mentioned pathway in plot No.4 belonging to the first defendant but the said application was dismissed by the trial Court on the ground that the suit was ripe for trial. 14. The learned counsel appearing for the appellant relied on a decision reported in ANATHULA SUDHAKAR v. P. BUCHI REDDY (DEAD) BY L.Rs. AND OTHERS[1] wherein it was held as follows: "Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, h e has t o sue for possession with a consequential injunction. Where there is merely an interference with plaintiffs lawful possession or threat of dispossession, it is sufficient to sue for an injunction simplicitor." 15. The learned counsel appearing for the first defendant sought to contend basing on the said decision that since from the evidence it is borne out that the first defendant has erected a barbed wire fence prohibiting the access of the plaintiff to the schedule mentioned pathway, the plaintiff could have only filed suit due for recovery of possession and the suit filed by him for mere injunction is not maintainable. I absolutely see no force in the contention of the learned counsel appearing for the first defendant. Merely because the first defendant obstructed the way of the plaintiff by erecting a fence temporarily, it cannot be said that the plaintiff was out of possession of the property. If we examine the facts of the present case, it is clear that the plaintiff is not claiming any rights in plot No.4 of the first defendant. He is only claiming right of way through the said land. Therefore, there is no substance in the argument that the plaintiff was out of possession on the date of filing of the suit. Because of the obstruction of passage by the first defendant, the appropriate remedy for the plaintiff is to sue him and the other defendants who caused the obstruction for injunction. 16. In the instant case, the learned first appellate Court on proper appreciation of evidence on record held that the plaintiff could be able to establish that he has a right of way to the schedule mentioned pathway OPQN existing in the plot No.4 belonging to the first defendant. The first appellate Court also held that the right of easement claimed by the plaintiff is not only an easement of necessity but also he perfected the easementary right by prescription. The findings of the learned first appellate Court are based on evidence and reasoning and are in relation to the fact, and this Court is not supposed to interference with them in exercise of powers under Section 100 of CPC while considering the second appeal. The second appeal, therefore, is absolutely devoid of merit and is liable to be dismissed. 17. In the result, the second appeal is dismissed. There shall be no order as to costs. _______________ Date:28.12.2011. R. KANTHA RAO, J ccm HON’BLE SRI JUSTICE R.KANTHA RAO SECOND APPEAL No.130 of 2000 Date:28-12-2011 [1] AIR 2008 SC 2033