THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.360 OF 2010 .10.2010 Between: Yandra Narasimha Murthy And another. … Appellants AND Smt Yandra Musalamma …Respondent THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.360 OF 2010 JUDGMENT: Defendants are the appellants. The plaintiff’s suit initially for permanent injunction and later also for mandatory injunction in respect of suit schedule property viz., an area of 16 yards x 7½ yards out of 123 square yards house site situated at Kadimapadu village of Peravali Mandal in West Godavari District was decreed by the Court of Principal Junior Civil Judge, Tanuku. The defendants’ first appeal being A.S.No.40 of 2004 was rejected. Yet again they filed the instant appeal purportedly on the ground that this case involves a substantial question of law contemplated under Section 100 of Code of Civil Procedure, 1908. The plaintiff alleged that defendants are trying to encroach upon suit schedule land and sought injunction. During pendency of the suit, she alleged that defendants constructed a cement platform and a WC on the northern side of plaintiff’s property and sought for a direction to remove such alleged unauthorized constructions. Defendants demurred contending that they did not encroach upon plaintiff’s property, that they did not construct platform or WC in the plaintiff’s property, that cement pail was constructed in defendants’ land alone and that the construction was within the boundaries of the defendants’ property. During the trial, two witnesses for plaintiff and defendant were examined and five documents were marked by plaintiff and one document was marked by defendants. Defendants relied on oral evidence of first defendant and Ex.B.1, registered sale deed dated 26.07.1953. The trial Court came to the conclusion that defendants were in occupation of excess land to an extent of 5 feet. For this purpose, the trial Court relied on the report of the advocate commissioner appointed in I.A.No.952 of 2001. Accordingly, the trial Court recorded a finding that the defendants made construction in plaintiff’s land and decreed the suit. The appellate Court on re- appreciation of evidence, relied on the advocate commissioner’s report appointed in I.A.No.2331 of 1994 and came to the conclusion the construction was a new one made by the defendants and accordingly dismissed the appeal. In the present appeal, the counsel for appellants/defendants submits that without prayer for recovery of possession, such relief cannot be granted and suit for permanent injunction and mandatory injunction is not maintainable. Secondly, he submits that the findings of the Courts below are not based on evidence and reliance placed on the commissioner’s report is misconceived. This Court is not able to countenance with both submissions for the following reasons. There is nothing in law that prevents a trial Judge to rely on the commissioner’s report although it may not be absolutely binding on the Court, it is relevant piece of evidence and subject to the probabilities of the case, the same can also be the basis for recording a finding of fact. Referring to the report of the advocate commissioner appointed in I.A.No.952 of 2001, the trial Court observed as under. According to the learned Advocate Commissioner if the said Ex.A.5 document is taken into consideration, the sites of the defendants should be 13 yards=39’. But physically the measurements on the east and west of the defendants’ sites are 44’ which is 5’ in excess. According to the learned Advocate Commissioner, the defendants are enjoying as on the said date upto pial on the east and “Badida” trees on the west i.e., they are enjoying 5’ width extra site more than their documents. The learned Advocate Commissioner also took measurements on the eastern side and western side upto 42’- 6” from the south then he found with the excess in the defendants enjoyment is 1’-6” width on the northern boundary. The learned Advocate Commissioner noted that he could not take measurements from the northern side as the road plan is not available with him. The learned Advocate Commissioner also mentioned in his report without giving the title deeds of both the parties it is not possible for him to demarcate the exact boundaries in between the plaintiff and defendants. The appellate Court also relied on another interim report of the advocate commissioner appointed in I.A.No.2331 of 1994 as well as the admission of D.W.1 that construction was made by second defendant after filing of the suit. The findings are in the realm of fact and therefore, merely because another view is also possible second appeal would not lie. The submission that without there being a relief of possession without asking for relief of possession, the Court would not have granted the relief is misconceived. When D.W.1 admitted that offending construction was made after filing of the suit, the defendants cannot be allowed to retain the benefit. That will be travesty of justice. It is well settled rule of justice that no person shall be allowed to retain the benefits illegally gotten during the pendency of the suit. The second appeal is misconceived and is accordingly dismissed. No costs. __________________ (V.V.S.RAO, J) .10.2010 Pln