THE HON'BLE SRI JUSTICE K.C.BHANU Second Appeal No.916 OF 2011 JUDGMENT: 1 Aggrieved by the judgment and decree dated 03.07.2009 passed in A.S.No.7 of 2006 by the learned Senior Civil Judge, Allagadda whereunder and whereby the judgment and decree dated 28.02.2006 passed in O.S.No.128 of 2000 by the learned Junior Civil Judge, Allagadda was confirmed, the plaintiffs before the trial court preferred this Second Appeal. 2 For the sake of convenience, the parties to this Second Appeal will hereinafter be referred to as they are arrayed in the trial court. 3 Brief facts that are necessary for disposal of this Second Appeal are as follows: i. Plaintiffs filed the suit against the defendants for permanent injunction restraining the defendants and their men from removing the AB mentioned wall as shown in the plaint plan and from entering into the plaint schedule ABCD RRR Rastha. ii. It is the case of the plaintiffs that the RRR marked rastha in the plaint plan, which is situated on the eastern side of the plaintiffs’ houses, is a private rastha exclusively belonging to the plaintiffs and that the said AB wall i.e. planted stones has been existing since a long time. The defendants’ houses are facing towards West and the entrance of their houses are facing towards South and turns to West into the western side rastha and that there is no entrance to the AB wall and that the defendants are having no manner of right in the RRR rastha and also having no site to the South of the AB wall, that the plaintiffs’ houses are facing towards North and all the doors of their houses are also facing towards North and into the RRR rastha. iii. Plaintiffs further submitted that their respective fathers purchased site of Ac.0.05 cents in Sy.No.410/D which is marked as CGFCI in the plaint plan from Boreddy Maddileti Reddy and others on 29.4.1949 under a registered sale deed and in the said sale deed the RRR rastha is clearly mentioned in the southern side. On 01.09.1972 the 2nd plaintiff’s father purchased the site including the kottam, which is marked as DEFCI in the plaint plan, from Nimmakayala Nagi Reddy and Venkata Subbamma under a registered sale deed, that later the plaintiff’s father constructed the houses in the site marked as CDEFG long back and enjoying the same and using the RRR Rastha without any interruption. After the death of the father of the plaintiffs, the plaintiffs got the property and are enjoying the same by using the RRR rastha since long back. iv. The plaintiffs further submitted that while Pedda Linganna who is the father of 1st plaintiff and Chinna Linganna who is father of the 2nd plaintiff were alive, they got issued legal notices to the defendants and their respective fathers on 15.8.1972 stating that the rastha is the private rastha and the defendants are having no manner of right to trespass into the said rastha. But the defendants are again proclaiming in the village that they will remove the AB wall and would occupy the ABCD RRR rastha and if the defendants are allowed to do so, the plaintiffs will suffer irreparable loss and injury. Hence the suit. v. Defendants 1 to 3 and 5 filed written statements, Defendant No.4 filed a memo adopting their written statements. Defendants contended inter alia that the plaint plan is not correct and RRR rastha is not a private rastha, and that in the olden days it was only a joint rastha to the people who owned thrashing floors to the East of CD of plaint plan and the stones along with AB line were not in existence previously and the said stones were planted just one or two months prior to the filing of the suit by the plaintiffs. The measurements shown in the plaint plan as 6 yards between A and D points and 7 yards between B and C points of the plaint plan are not correct and that the plaintiffs themselves encroached and occupied a portion of RRR rastha and the said Rastha is only 4 yards width now and the plaintiffs have also placed agricultural implements and Rolu and are causing inconvenience to the owners of Eastern side houses. RRR rastha is not the private rastha of the plaintiffs and they have no manner of right to obstruct the passers by through the RRR rastha, and that it became very difficult for the double bullock carts to pass into RRR rastha from Western side and the owners of the eastern side houses are demanding the plaintiffs to remove the encroachments into the RRR rastha by them and hence the plaintiffs filed the suit to side track the matter. vi. The defendants further stated that in the registered sale deed dated 29.04.1949, RRR rastha is not mentioned as private rastha and that the said RRR rastha is now vested in Gram Panchayat Board, Gospadu and the Gram Panchayat laid metal road twice in the said RRR rastha and that now there is a proposal to lay cement road in RRR rastha and funds were also allotted for that purpose. The fifth defendant has got the contract for laying cement road and he carted entire material for laying of cement road. The plaintiffs filed a false and frivolous suit against them to prevent laying of cement road in the said RRR rastha. In the registered sale deed dated 01.09.1972 filed by the plaintiffs, the Northern boundary of the site is mentioned only as rastha. In other sale deeds also the rastha is mentioned as rastha only; and that from the very beginning the said RRR rastha is being used as public rastha by all the villagers including the defendants. The defendants denied the alleged issuance of the notice by the father of the plaintiffs and ultimately prayed for dismissal of the suit. 4 Based on the above pleadings, the trial court framed the following issues for trial: i. Whether the plaintiffs are entitled for the relief of permanent injunction as prayed for? ii. Whether the plaint plan marked RRR rastha is joint rastha? iii. To what relief the plaintiffs are entitled? 5 During trial, on behalf of the plaintiffs P.Ws.1 and 2 were examined and Exs.A1. to A.4 were marked and on behalf of the defendants D.Ws. 1 to 6 were examined and Exs.B.1 to B.5 were marked. 6 On an analysis of the entire evidence available on record, the trial court came to the conclusion that the said RRR rastha mentioned in the plaint plan is a public rastha and therefore the plaintiffs have no exclusive right to use the said rastha and dismissed the suit. On appeal the appellate court confirmed the findings of the trial court. Challenging the same, the present second appeal is filed. 7 The learned counsel for the appellants/plaintiffs contended that both the courts below misread the evidence on record and gave perverse findings and that the Village Secretary is the competent person to speak whether the disputed RRR rastha is a public rastha or it is a private rastha exclusively belonging to the plaintiffs; that Exs.A.2 and A.3 would clearly go to show one of the boundaries to the property of the plaintiffs as rastha and therefore the same is exclusively belonging to the plaintiffs and that without marking the Commissioner’s report the same has been taken into consideration by both the courts below and hence prayed to admit the Second Appeal. 8 On the other hand, the learned counsel for the respondents/defendants contended that the defendants categorically stated that there was a public rastha existing since long time and that about two months prior to the filing of the suit only stones were planted in the disputed rastha and that the panchayat has given approval for laying cement road through the disputed rastha and unless it is a public rastha, the panchayat would not have given consent for laying cement road and that the findings of both the courts below are based on proper appreciation of evidence on record and none of the findings is shown to be perverse and contrary to law and prayed to dismiss the second appeal. 9 Admission of second appeal is not automatic or routine manner in view of the amendment to Section 100 C.P.C. The appellants must raise substantial questions of law for admission of the second appeal. A substantial question of law should directly and substantially affect the rights of the parties. When the findings are not based upon any admissible evidence or inadmissible evidence is taken into consideration or the findings are perverse, or misreading the questions of law are some illustrations under which the second appeal can be admitted. 10 The dispute is with regard to RRR rastha shown in the plaint plan. Case of the plaintiffs is that the said rastha exclusively belongs to them and it is a private rastha. On the other hand, case of the defendants is that the rastha shown in the plaint plan is a public rastha and therefore the plaintiffs are not entitled to any reliefs. 11 The case of the plaintiffs is based upon the evidence of P.Ws.1 and 2 and Exs.A.2 and A.3 sale deeds. In Ex.A.1 plaint plan, which was got prepared by the plaintiffs, it is shown that RRR rastha is in existence between the houses of the plaintiffs and the defendants. In the two sale deeds Exs.A.2 & A.3 one of the boundaries of the schedule property therein was mentioned as rastha. But those two documents are silent whether it is a public rastha or a private rastha. Therefore, if really the plaintiffs have got right, title or interest in respect of the said RRR rastha, then certainly the dimensions of the land would have been stated in the schedule itself so as to include the disputed rastha as the property of the plaintiffs. So, showing ‘Rastha’ as one of the boundaries in Exs.A.2 and A.3, would clearly goes to show that it is a public rastha. If it is a private rastha, one of the boundaries in Exs.A.2 and A.3 would not show it as a ‘rastha’. The entire claim of the plaintiffs is based upon Exs.A.2 and A.3. The Northern boundary of Exs.A.2 and A.3 would go to show that it is a rastha. But the evidence of P.Ws.1 and 2 would go to show that the northern boundary of the plaintiffs’ land is a private rastha. When the documents Exs.A.2 and A.3 do not disclose that it is a private rastha for the exclusive use and benefit of plaintiffs and their men, it can certainly be inferred that it is a public rastha. Therefore, the oral evidence adduced by the plaintiffs (viz., P.Ws.1 and 2) is totally inconsistent with the documentary evidence adduced by the plaintiffs themselves (Viz., Exs.A.2 and A.3). The plaintiffs cannot be permitted to lead oral evidence contrary to the documentary evidence. Except these two documents no other document is filed to show that the disputed rastha is a private rastha and it is exclusively meant for the use and benefit of the plaintiffs and their men. The plaintiffs have not produced the document available in the panchayat to show that it is a private rastha. Therefore, the plaintiffs failed to establish that the disputed RRR rastha is a private rastha. 12 On the other hand, D.W.5 who is the sarpanch of the village has stated that the disputed rastha is a public rastha and that Exs.D.1 to D.5 show that D.W.4 was awarded a contract by the panchayat for laying cement road through the disputed rastha. Unless it is a public rastha the question of laying cement road by the panchayat does not arise. Therefore, the defendants by preponderance of probabilities had shown that the disputed rastha is a public rastha. Even assuming for a moment that the commissioner’s report is not taken into consideration for the purpose of deciding whether the said RRR rastha is a private rastha or public rastha, in view of the fact that it is not marked, still the burden placed on the plaintiffs has not been discharged to show that the disputed rastha is a private rastha exclusively belonging to them. Therefore, as the plaintiffs miserably failed to establish that the said rastha is a private rastha, the trial court had rightly dismissed the suit and the same was confirmed by the appellate court. The concurrent findings of both the courts below are based on proper appreciation of evidence on record, which cannot be said to be perverse. Hence I see no question of law much less any substantial question of law to admit this appeal and accordingly the same is liable to be dismissed. 13 In the result, the second appeal is dismissed at the stage of admission. No costs. ______________ K.C. BHANU, J 02.09.2011 Kvsn