THE HON'BLE SRI JUSTICE P.S.NARAYANA S.A.No.365 of 1998 15th June, 2010 Between :- Bellamkonda Balaraju .. Appellant And Jangiri Suguna and another .. Respondents THE HON'BLE SRI JUSTICE P.S.NARAYANA S.A.No.365 of 1998 JUDGMENT:- The plaintiff though partly was successful in O.S.No.257/83 on the file of the Principal District Munsif, Bhongir, being aggrieved of the negativing all the rest of the reliefs having preferred an appeal A.S.No.25/92 on the file of the Subordinate Judge, Bhongir, and having been unsuccessful even before the Appellate Court, preferred the present Second Appeal. 2. In the memorandum of grounds of Second Appeal, the following substantial questions of law had been specified:- 1) Whether the relief for injunction over a part of the passage way can be denied in the absence of establishment of any title or possession? 2) Can the relief of injunction be denied in the absence of establishment of any valid title or enforceable right? 3) The lower Court erred in concluding that the appellant is entitled to rights over the lane only to the extent of 18 yards in length and 3 ft. in width as the said extent of length is only existing in between appellant’s house and the house of respondent No.1 as per Ex.A.4. The lower Court should have seen that the house of appellant comprises two portions one on west, part of the plot purchased by his father in 1969 under Ex.A.1 and the other on East: contiguous to the former, part of the plot purchased by appellant and his brother B.Anantha Ramulu under Ex.A.2. The suit way has spread over on the South of the suit house from West to East in 72 ft. in length. Out of which 54’ way pertains to the plot under Ex.A.1 and 18’ way pertains to the plot under Ex.A.2. 4) The lower Court further failed to observe that though the length of plot of the respondent No.1 on North is 54’ under Ex.A.4, she is claiming that she purchased another plot of 536 sq.yards under Ex.B.9 East to the first plot purchased by her under Ex.A.4 and these two are contiguous with common boundary on North. Thus the appellant is entitled for perpetual injunction against the respondent for the rest of the suit way of 18’ x 3’ 5) The lower Court failed further to observe that part of the suit way of 18 ft. in length and 3 ft. in width is manifest on the plot covered by Ex.A.2. 3. This Court on 14-9-1998 made the following Order:- “The Second Appeal is admitted on the following substantial question of law:- “Judgment of the Court below is illegal and erroneous inasmuch as the lower Appellate Court has failed to consider the entire evidence being the final Court of fact and the Judgment of the lower Appellate Court is also illegal inasmuch as it is not at all a reasoned order.” 4. Sri Venkat Sastry, the learned Counsel representing the appellant had pointed out to the specific grounds raised in the Second Appeal and would maintain that though the Second Appeal was admitted on a specific substantial question of law, the other grounds also may have to be gone into. The learned Counsel while further elaborating his submissions had taken this Court through the evidence of P.Ws.1 to 8, D.Ws.1 to 6, Ex.A.1 to Ex.A.7, Ex.B.1 to Ex.B.12 and Ex.X.1 and would maintain that especially in the light of the clear oral evidence available apart from the documentary evidence – Ex.A.1, Ex.A.2, Ex.A.3 and Ex.A.4 coupled with Ex.A.5, the suit as prayed for should have been decreed, but unfortunately by not interpreting the documents in proper perspective, the Courts below came to an erroneous conclusion by decreeing the suit partly. The Counsel also had explained the plan in particular, in detail, before this Court and would maintain that since perverse findings had been recorded on appreciation of evidence, even if the concurrent findings had been recorded, this is not a fit matter to be interfered with and the Second Appeal to be allowed. The learned Counsel also placed strong reliance on WALTER LOUIS FRANKLIN v. GEORGE SINGH[1]. 5. Per contra, Mrs.Neeraja Reddy, the learned Counsel representing the respondents had taken this Court through the findings recorded by both the Court of first instance and also the Appellate Court and would maintain that in the light of the concurrent findings recorded by both the Courts below and in view of the fact that the Appellate Court also appreciated the oral and documentary evidence available on record in elaboration in proper perspective as the final fact finding Court, in the light of the concurrent findings recorded, this is not a fit matter to be interfered with since no substantial questions of law as such are involved in the present Second Appeal. 6. Heard the Counsel on record, perused the oral and documentary evidence, the findings recorded by the Court of first instance and also the findings recorded by the Appellate Court as well. 7. The substantial question of law on the strength of which the Second Appeal had been admitted already had been specified supra. For the purpose of convenience, the parties hereinafter would be referred to as plaintiff and defendants as shown in O.S.No.257/83 on the file of Principal District Munsif, Bhongir. The plaintiff filed the suit for permanent injunction restraining the defendants from making any construction in the passage adjoining to the house bearing No.3-3- 10/A at the southern side situated at Khazi Mohella, Bhongir Town, Nalgonda District. The Court of first instance in the light of the respective pleadings of the parties having settled the Issues, recorded the evidence of P.Ws.1 to 8, D.Ws.1 to 6, marked Ex.A.1 to Ex.A.7, Ex.B.1 to Ex.B.12 and Ex.X.1 and ultimately after recording findings came to the conclusion that the plaintiff established about the existence of suit passage and its use by him and the defendant is utterly failed to establish that the suit passage is in her exclusive possession and that she has no right to claim any absolute rights over the said land as her vendor himself has no right to sell the suit passage showing it as his own land and as such the said sale including suit passage is not binding on the plaintiff. In the result, the suit is decreed in respect of suit passage 18 yards in length and 3 ft. with (54 ft. x 3 ft.) with costs. It is needless to say that since the relief as prayed for had not been granted, the plaintiff being aggrieved of the same, carried the matter by way of appeal A.S.No.25/92 on the file of the Subordinate Judge, Bhongir and the Appellate Court after recording reasons came to the conclusion that the appeal is devoid of merit and accordingly dismissed the same without costs. Aggrieved by the same, the plaintiff had preferred the present Second Appeal. 8. It is the case of the plaintiff that the 1st defendant is the wife of the 2nd defendant and they are the neighbours of the plaintiff. The plaintiff acquired the house bearing No.3-3-10/A situated at Khazi Mehella, Bhongir, upon partition between himself and his brother. The plaintiff and his brother acquired the house from their father late Bellamkonda Balaiah. The said Bellamkonda Balaiah has purchased the land admeasuring 364 Sq.Yds., from one Sardar Begum under a registered sale deed on 14-10-1969 and constructed the house now acquired and owned by the plaintiff and the said Anantha Ramulu. It is further alleged that subsequently the plaintiff and his brother jointly purchased open land adjoining to their houses admeasuring 116 Sq.Yds., under a registered sale deed dt.26-7-1977 for a valid consideration from the Pattedar and owner, Sardar Begum. Thereupon the plaintiff and his brother have extended their houses covering the land purchased from the said Sardar Begum by constructing compound walls and partition walls. 9. It is further averred that the vendor of the plaintiff out of her own land in Sy.No.231 had left place for 3’ wide ways for the common use at southern side along the house of the plaintiff bearing Municipal No.3-3-10/A i.e., suit way and also 3’ wide road along with the house of his brother Anantha Ramulu to the northern side and also 6’ wide road at the eastern side of their houses as shown in sketch map. And his vendor in the sale deed clearly stated that none shall have any right under the place left for the suit way, situated at the southern side of his house and also the other three ways running at eastern and northern sides. And his vendor Sardar did not receive any consideration for the place she left out out of her own patta land to be used as common ways. The said Sardar Begum also executed an agreement on 13-4-76 on Rs.5/- Stamp Paper in favour of the plaintiff’s father to the effect that none can exercise any right over the place left by her at the southern, northernand eastern sides of the houses of the plaintiff and his brother. The suit way is adjoining to the house of the plaintiff to its southern side and the same is used as common way since 1969. And there is a passage from the back court-yard of the plaintiff to the suit way which leads the Bhongir-Nalgonda P.W.D.Road. The plaintiff has leased out his house adjoining to the suit way to one Ansari. Thus he acquired legal right and title to use the suit way, and the defendants have no manner of right, title or concern over the suit way. It is further alleged one Boneboina Maisaiah, the vendor of the defendant No.1 has in the year 1970 purchased house site under a registered sale deed adjoining to the suit way admeasuring 254 Sq.Yds., from the plaintiff’s vendor, the said Sardar Begum. That the suit way is clearly shown in the map annexed to the sale deed executed by the said Sardar Begum in favour of the said Maisaiah. The said Maisaiah has subsequently sold away the said house site to that defendant No.1 wherein the defendant No.1 has constructed a house and residing therein. 10. It is also further averred that the defendants had developed malafide intention to grab the suit way and the external wall of the plaintiff’s house and in furtherance thereof the defendants on 3-12- 1983 without even the permission of the municipality have tried to dig the suit way to raise compound wall touching the external wall of the plaintiff’s house blocking the way. Anyhow he has foiled the attempts of the defendants with the help of his well-wishers. The defendants who have no right, title or concern over the suit way have tried to interfere with the peaceful enjoyment of the plaintiff over the suit way. 11. The defendants filed written statement pleading that they are not aware as to how the plaintiff has got the house bearing No.3-3-10/A situated at Khaji Mohella, Bhongir. And they are also not aware regarding the purchase of the land by Bellamkonda Balaiah. It is further alleged that they are also not aware about the purchase of 116 Sq.Yds., open land by the plaintiff and his brother. And they are disputing the measurements and the area covered by the houses and also the compound wall since the plaintiff has wrongly included the land of them. It is also denied that the vendor of the plaintiff has left 3’ feet wide way for the common use at southern side along the house of the plaintiff’s suit house and also denied that 3’ feet wide road was also left along with the house of Anantha Ramulu to the northern side and 6’ feet wide road at the eastern side of the houses of the plaintiff and his brother. The sketch map filed by the plaintiff is wrong. It is further contended that they are in actual possession and enjoyment of their purchased land. It is also denied that the vendor of plaintiff executed an agreement on 13-4-76 on Rs5/- stamp paper. The plaintiff neither acquired any legal right over the so-called suit way nor the plaintiff has got any right over it. They are purchased the land from Bonaboina Maisaiah and constructed a house and denied that the suit way is shown in the map annexed to the sale deed. The said Maisaiah has executed a sale deed in favour of the defendant No1. No way or lane is shown in the map and no way is left at any time by the original owner or any body and as such the allegation made by the plaintiff regarding the existence of the way of false. It is also denied that they dugged in the suit way to raised wall to block the way and such digging, the suit way does not arise as they are in actual possession of their purchased land in their own right and there is no cause of action to file the suit. 12. On the strength of these pleadings, the following issues were settled before the Trial Court:- 1) Whether the plaintiff is entitled for perpetual injunction as prayed for? 2) To what relief? The undernoted oral and documentary evidence had been adduced and marked :- Witnesses examined on behalf of the plaintiff:- P.W.1 :- Bellamkonda Balaraju P.W.2 :-Ahmed Ali P.W.3 :- Rallapally Bixapathi P.W.4 :- N.Madhava Rao P.W.5 :- K.Ramalingam P.W.6 :- K.Rangaiah P.W.7 :- Pokala Yetaiah P.W.8 :- P.Sathaiah Witnesses examined on behalf of the defendants:- D.W.1 :- Jangiti Suguna D.W.2 :- Pokala Chandraiah D.W.3 :- Manikanti Laxmaiah D.W.4 :- Thota Padmaiah D.W.5 :- Thota Chandraiah D.W.6 :- Pokala Narayana Documents marked on behalf of the plaintiff:- Ex.A.1 :- Sale deed dt.14-10-1969 (Urdu) Ex.A.1 (a) :- Signature of Sardar Begum in Urdu Ex.A.2 :- Sale deed dt.26-7-77 (Urdu) Ex.A.2 (a):- Signature in Urdu on Ex.A.2. Ex.A.2 (b):- Signature of K.Rangaiah on Ex.A.2. Ex.A.2 (c):- Signature of Knowledge>Rangaiah on Ex.A.2 on Sketch map Ex.A.3 :- Agreement dt.13-4-76 (Urdu) Ex.A.3 (a):- Signature of P.W.3. Ex.A.3 (b):- Signature of P.W.7. Ex.A.4 :- Certified copy of Registered sale deed dt.7-9-90. Ex.A.5 :- Sketch plan showing the proposed construction of a compound wall to the existing H.Nos.3-3-10/B and H.No.3-3-10/A issued by Commissioner, Municipality, Bhongir. Ex.A.6 :- Receipt acknowledgment dt.8-12-83. Ex.A.7 :- Copy of application dt.8-12-83. Documents marked on behalf of the defendants:- Ex.B.1 :- Certified copy of document No.412/72 dt.24-3-72 of sale deed of house site between Bonaboina Maisaiah and Jangiti Sugunamma Ex.B.2 :- Sale deed plan of the plot in Sy.No.231belonging to Bonaboina Maisaiah sold to Jangiri Sugunamma at Bhongir issued by Sub-Registrar, Bhongir as true copy. Ex.B.2 (a):- Signature of Thota Chandraiah Ex.B.2 (b) :- Signature of G.Venkata Narsaiah Ex.B.2 (c):- Signature of vendor in Urdu Ex.B.3 :- Plan showing the proposed construction of house belonging to Smt.Jangiti Sugunamma to the existing house non 3-3-10/1 issued by Branch Manager, LIC, Bhongir as True Copy Ex.B.4 :- Property Tax receipt dt.23-12-89 issued in the name of J.Ramachandar for Rs.101-50. Ex.B.5 :- Property tax receipt dt.19-12-88 for Rs.1375/- issued in the name of defendant No.1. Ex.B.6 :- Property tax receipt dt.30-6-72 for Rs.146-83 issued in the name of defendant No.1. Ex.B.7 :- Property tax receipt dt.30-6-72 for Rs.2/- issued in the name of J.Sugunamma Ex.B.8 :- Sale deed plan of the land in Sy.No.231 belonging to Sardar Begum sold to defendant No.1. Ex.B.9 :- Original agreement dt.9-4-76 Ex.B.10:- Original agreement dt.22-6-72. Ex.B.11 :- Fair copy of Ex.B.9. Ex.B.12 :- Fair copy of Ex.B.10. Documents marked by Court:- Ex.X.1 :- Original sale deed for Rs.1500/- executed by Sardar Begum in favour of Pokala Kamalamma,w/o.Yettaiah. 13. The Trial Court appreciated the oral and documentary evidence specified supra – P.Ws.1 to 8, D.Ws. 1 to 6, Ex.A.1 to Ex.A.7, Ex.B.1 to Ex.B.12 and Ex.X.1, which was marked through P.W.7, in elaboration and ultimately came to the conclusion that the plaintiff is entitled to the part of the relief which had been prayed for and accordingly decreed the suit as specified supra. Aggrieved by the same, the matter was carried by way of appeal A.S.No.25/92 on the file of the Subordinate Judge, Bhongir, and the Appellate Court after referring to the respective pleadings of the parties, formulated the following point for consideration at para 7:- “Whether the lower Court erred in decreeing the suit upto 54 feet x 3 feet pathway excluding 18 feet x 3 feet? Appellate Court recorded reasons in detail commencing from paras 8 to 16 and ultimately dismissed the appeal without costs. The only substantial question of law on the strength of which the Second Appeal had been admitted already had been specified supra. It is needless to say that the findings recorded by the Trial Court had been confirmed by the Appellate Court in the aforesaid appeal. 14. The case of the plaintiff is that he and his brother acquired house No.3-3-10/A in a partition and the said land of 364 Sq.Yards earlier purchased by his father by name Bellmkonda Balraju and subsequently the plaintiff and his brother jointly purchased 116 sq.yards for valid consideration on 26-7-1977 and thus the plaintiff and his brother extended their houses covering the land purchased by them from Sardar Begum by constructing compound wall and partition walls as well. It is also the case of the plaintiff that their vendor Sardar Begum left 3 feet wide way along with his brother house on northern side and also 6 feet wide road on Eastern side of his house and his brother’s house. The defendant purchased land from one Boneboina Maisaiah in the year 1970 which is on the southern side of his house after suit passage. The defendants are interfering with common usage of suit passage and trying to obstruct the suit way by constructing compound wall. The stand taken by the defendants is that the plaintiff is wrongfully claiming the said land and there is no passage in existence at all and the other allegations also had been denied. 15. P.W.1 deposed in detail about his case. Apart from P.W.1, P.W.2, P.W.3, P.W.4, P.W.5, P.W.6, P.W.7, P.W.8 also had been examined. As already aforesaid Ex.A.1 to Ex.A.7 had been marked. Likewise, D.W.1, D.W.2, D.W.3, D.W.4, D.W.5, D.W.6 were examined. Ex.B.1 to Ex.B.12 were marked. Ex.X.1 - Original sale deed for Rs.1500/- executed by Sardar Begum in favour of Pokala Kamalamma also was marked through P.W.7. The Trial Court on a careful analysis of the oral and documentary evidence available on record, appreciated the oral and documentary evidence carefully and recorded findings at paras 9 to 18. It is needless to say that these are all factual findings. The Appellate Court also after formulating the point for determination as already specified supra, recorded reasons in detail commencing from paras 8 to 16 and ultimately dismissed the appeal without costs. 16. This Court had carefully gone through the reasons recorded by the Appellate Court in pars 8 to 16 as a Final Court of Fact, the Appellate Court appreciated the oral and documentary evidence available on record and ultimately came to the conclusion that the findings recorded by the Trial Court are to be confirmed. As already specified supra, the only substantial question of law on the strength of which the Second Appeal had been admitted. In the light of the convincing reasons which had been recorded in elaboration by the Appellate Court as specified supra cannot be said to be a question of law at all so as to attract Section 100 of the Code of Civil Procedure. Further it is needless to say that when concurrent findings had been recorded by both the Court of first instance and also the Appellate Court and when the questions which had been pointed out even otherwise by the learned Counsel for appellant are only factual controversies in the light of the limitations imposed on this Court while interfering in a Second Appeal. 17. This Court is thoroughly satisfied that this is not a case to be interfered with and accordingly this Second Appeal shall stand dismissed. But however inasmuch as the plaintiff had been successful partly both before the Court of first instance and also the Appellate Court, let the parties bear their own costs. ______________________ Justice P.S.Narayana June, 2010 smr [1] (1997) 3 SCC 503