HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL Nos.384 OF 1999 & 389 of 1999 Dated 3-11-2010 Between: S.A.384 of 1999: K.Mahadevappa and others. …Appellants. And: M.Changal Rayan and others. …Respondents. Between: S.A.389 of 1999: K.Mahadevappa and others. …Appellants. And: M.Changal Rayan and others. …Respondents . HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL Nos.384 OF 1999 & 389 of 1999 COMMON JUDGMENT: These two appeals are preferred by the plaintiff who has succeeded in the suits partly. I have heard Mr. C.V. Bhaskar Reddy, learned counsel for the appellant at length and I have also seen the judgments of the trial Court as well as the appellate Court, particularly, the findings under which the part of the relief to the appellant-plaintiff was disallowed. In these appeals. 1st appellant who was contesting plaintiff and also the 1st respondent who was the contesting defendant died and their L.Rs. 2 to 5 were brought on record. However, both these appeals stood dismissed in default against the respondent No.3 by order of this Court dated 4-12-2001 and since the defence of all the respondents is common in the sense that they are only the present L.Rs. of originally contesting defendant No.1, the dismissal of both the appeals against respondent No.3 would automatically affect both the appeals. However, I have permitted Mr. Bhaskara Reddy, learned counsel for the appellant, to make all his submissions on merits and I propose to decide the appeal on merits, as well. The appellant herein filed O.S.No.204 of 1990 for permanent injunction restraining the original defendant from interfering with the possession and enjoyment of the plaintiff’s house ABCD, including constructing any wall or roof from portions marked CD1 situated to the North of plaintiff’s house ‘ABCD’. Plaintiff also sought additional relief to declare that the said CD1 wall as shown in the plaint plan is exclusive wall of the plaintiff and to further declare plaintiff’s right to the space from D1 to D abutting defendant’s house on the South in continuation of CD1 compound wall. Plaintiff also filed another suit O.S.No.36 of 1991 seeking mandatory injunction directing the defendant to construct supporting wall on his side abutting the plaintiff’s wall C to C2 upto the roof level. Both the said suits being between the same parties were tried together and evidence was recorded in O.S.No.204 of 1990. On consideration of the evidence including that of an Advocate Commissioner who filed his report under Ex.C1 accompanied by plan Ex.C2 and after consideration of the objections Exs.C3 and C4 filed by both the parties, the trial Court came to a conclusion that in Ex.C.2 plan, the wall marked as Ex.C.2 to C.5 is exclusive wall of the plaintiff whereas wall marked as C to C.2 as well as C2 C5 is the common compound wall of the parties. The said finding has been confirmed in appeal by the lower appellate Court and hence, this Second Appeal by the plaintiff. Both the appeals were admitted on the substantial questions of law as formulated by the order of this Court dated 23-4-1999 which is as follows: “Whether the findings of the appellate Court are vitiated by law and procedure for non-consideration of contents of Exs.A.1, A.2 and A.3 while relying on the commissioner’s report and the commissioner’s plan vide Exs.C.1 and C.2.” Learned counsel for the appellant contends that findings of the Courts below to the extent of wall C to C2 has common compound wall is not justified in view of the fact that the plaintiff’s title document Ex.A.1 and the boundaries thereof would certainly cover the area on which the said wall exists. In other words, he disputes the title of the defendants. He also points that the defendant has not filed any of the title document and the plan under which he has made constructions and therefore, his constructions which are even otherwise objectionable and contrary to the Building Rules under the A.P.Grampanchayat Act, have been ignored by both the Courts and the finding that the wall C to C2 is a common compound wall is vitiated. A reading of the findings of both the Courts would show that admittedly, the defendant constructed his house in the year 1969- 70 much prior to that of the plaintiff. It is also his evidence that when he constructed the RCC structure raised on the compound wall in question, plaintiff and his daughter were present and it is within their knowledge and they never objected. The present suit came to be filed only in the year 1990-91. Both the Courts were therefore of the view that in view of the constructions of both the parties raised on the compound wall and the defendants construction being 69-70, the exclusive claim made by the plaintiff to the extent of the said wall is not sustainable. The said finding reached by the Courts below is clearly a finding of fact and is based upon the admitted position that the defendant’s house was constructed long prior to that of the plaintiff and the constructions which are now objected to, exists for several years. To the extent of wall C2 to C5, the Courts below have already granted declaration in favour of the plaintiff and in the absence of any appeal from the defendant, the said decree remains undisturbed. To the extent of wall C to C2 whereon both parties have rested their constructions, it was rightly declared as a common compound wall and I see no reasons to interfere with the said findings as both the courts below have reached the said findings on appreciation of evidence. The other contentions of learned counsel for the appellant that the construction of the defendants which are not in accordance with the rules under the Grampanchayat Act is concerned, the relief sought for in both the suits which is mentioned in the opening paragraphs, would show that the dispute only centered round the alleged exclusive ownership of the plaintiff with respect of the said compound wall. The legality of the constructions made by the defendant was not in issue as is evident from the relief sought for in the plant in both the suits. The said aspect with regard to legality or otherwise of the construction of the defendant therefore would fall out side the scope of these suits and it is for that reason, no issue with regard to that aspect was framed in either of the suits. The said contention raised by the learned counsel for the appellant is therefore outside the scope of the suits themselves and as such cannot be agitated in these appeals. Both the appeals are accordingly dismissed. However, there shall not order as to costs. _____________________________________ Justice VILAS V. AFZULPURKAR Dated 3-11-2010. Dvs HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL Nos.384 OF 1999 & 389 of 1999 Dated 3-11-2010