HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA SECOND APPEAL No. 472 OF 2011 DATED 22nd December, 2011 BETWEEN Talari Sowri and ors …….Appellants and Gurindala Nageswararao @ Nagesu ……Respondent HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA SECOND APPEAL No. 472 OF 2011 JUDGMENT: The appellants herein are the defendants in O.S.No. 850 of 2002 on the file of the learned Principal Junior Civil Judge, Eluru, West Godavari District. The respondent herein filed the aforesaid suit for recovery of possession of the plaint schedule property by evicting the appellants/defendants and for a permanent injunction restraining the appellants/defendants from ever interfering with his peaceful possession and enjoyment of the plaint schedule property. Before the trial Court, on behalf of the respondent/plaintiff, P.Ws. 1 to 3 were examined and Exs.A.1 to A.6 were got marked. On behalf of the appellants/defendants, D.Ws. 1 and 2 were examined and Exs.B.1 to B.4 were got marked. The trial Court upon due consideration of the oral and documentary evidence, decreed the suit as prayed for by Judgment and decree dated 04.04.2005. Aggrieved by the judgment and decree of the trial Court, the appellants/defendants preferred an appeal in A.S.No. 139 of 2005.The lower appellate Court upon re-appreciation of the evidence on record, dismissed the same, confirming the judgment and decree of the trial Court. Hence, the present Second Appeal. It is submitted by the learned Counsel for the appellants/defendants that in as much as the respondent/plaintiff had sought for recovery of possession, without seeking declaration of title or ownership, the suit for permanent injunction is contrary to settled law. He further submitted that both the Courts below ought to have seen that P.W.3—Mandal Surveyor conducted survey with reference to the FMB and RSR, ignoring the title deeds and its boundaries. In support of his contentions, he placed reliance on the decisions of the Supreme Court and other High Courts, in Shreepat Vs.Rajendra Prasad (JT 2000(7) SC 379, Moran Mar Basselios Chathelics Vs. Most Rev.Mar Poulose Athanasius (AIR 1954 SC 526), Chakicherla Audilakshmamma Vs. Atmakuru Ramarao (AIR 1973 AP 149), Y. SubbaRao Vs. Azizunnisa Begum 1985 (2) APLJ (2)151, and A.Ramloo Vs.G.Sreeramachandra Murthy {1999 (2) ALD 590}. Per contra, the learned Counsel for the respondent/plaintiff submitted that there is no dispute with regard to the suit schedule land and as such, the suit for recovery of possession including the relief of permanent injunction is maintainable. He pointed out that the appellants/defendants never disputed the title and ownership of the suit schedule land. He submitted that both the Courts below rightly considered the evidence on record and concurrently held that the appellants/defendants have encroached the suit schedule land and as such, there are no merits in the Second Appeal which deserves dismissal by this Court. Admittedly, it is not in dispute that the respondent/plaintiff purchased the suit schedule land ad measuring 144 square yards situate in R.S.No. 91 from one Nunna Papa under Ex.A.1- sale deed. The appellants/defendants having purchased the sites on the North side of the suit schedule land constructed three RCC roofed buildings. While it is the case of the respondent/plaintiff that the appellants/defendants had encroached 24 square yards of the suit schedule land; it was the case of the appellants/defendants that they did not encroach any portion of the suit schedule land. The material on record would disclose that earlier to the filing of the suit, the respondent/plaintiff got surveyed the suit schedule property by the Mandal Surveyor on 29.08.2002 and on coming to know that they appellants/defendants had encroached 24 square yards of the site in question, he instituted the suit for the relief as sought for. Further, after filing of the suit, the trial Court appointed an Advocate Commissioner pursuant to the application made by the respondent/plaintiff to note down the physical features of the suit scheule land and to measure the suit schedule land with the assistance of the Mandal Surveyor and to note down the alleged encroachment made by appellants/defendants. The said Mandal Surveyor was examined by the respondent/Plaintiff as P.W.3. He categorically stated in his evidence that he assisted the Advocate Commissioner in measuring the plaint schedule property in the presence of both the parties and he prepared the sketch for the property under the occupation of the defendants with reference to the FMB and RSR and fixed the boundaries thereof with sub division. In his cross- examination he stated that the encroachment shown in the sketch filed along with the Commissioner Report were with reference to FMB and not with reference to the title deeds of both the parties. He also deposed that unless all the lands in the vicinity measured, one cannot ascertain the original encroachments. Relying on the cross-examination of P.W.3, the learned Counsel for the appellants/defendants contended that Mandal Surveyor conducted survey with reference to the FMB and RSR, ignoring the title deeds and boundaries. It is to be seen that if P.W.3 measured the suit schedule property with the help of FMB and RSR, it cannot be said that the survey conducted by P.W.3 was incorrect in as much as FMB and RSR are public documents. P.W.3 also drew a sketch indicating the portion of the suit schedule land encroached by the appellants/defendants---portions marked by orange colour and green colour of Southern side and Western side of the suit schedule property, are under encroachment by the appellants/defendants. The said sketch was annexed to the report submitted by the Advocate Commissioner who clearly noted the said encroachments in his report. It is a well settled position of law that the report of the Advocate Commissioner, who in this case measured the suit schedule land and noted the physical features thereof with the help of P.W.3 —Mandal Surveyor forms part of the Court records and reliance can be safely placed therein. A careful reading of the said report of the Advocate Commissioner together with the enclosures annexed there to, it is perspicuous that the defendants have encroached the suit schedule land. Further it is not in dispute that the respondent/plaintiff as well as the appellants/defendants have clear title as to their extents of the properties, save and except to the alleged and proved encroachment by the defendants. That being so, the suit for permanent injunction de horse the relief of declaration is maintainable and the respondent/plaintiff is entitled to seek eviction of the appellants/defendants from the alleged and proved encroachment. The case law relied on by the learned Counsel for the appellants/defendants has no direct bearing on the facts of the present case as the facts and circumstances of those cases are totally different and not similar to the case on hand. Therefore, those cases are not relevant for adjudication of the case on hand. I therefore do not propose to discuss those cases in detail for the reason that discussion of those cases would only dilate this judgment but not helpful in any way to the case of the appellants/defendants. The trial Court considering the evidence on record rightly decreed the suit. The lower appellate Court, on appeal, re-appreciated the evidence on record and concurred with the findings recorded by the Trial Court and dismissed the appeal by its judgment dated 13.09.2009. For the foregoing discussion, I do not find any question of law, much less a substantial question of law that arises for consideration in this appeal warranting interference with the well reasoned judgment of the lower appellate Court which concurred with the findings recorded by the trial Court. The Second Appeal fails and is accordingly dismissed. There shall be no order as to costs. --------------------------------------------- JUSTICE ASHUTOSH MOHUNTA Dated 22nd December, 2011. Msnro