THE HON’BLE SRI JUSTICE K.C. BHANU SECOND APPEAL No.301 OF 2010 JUDGMENT: This Second Appeal, under Section 100 of the Code of Civil Procedure, 1908, (for short, “C.P.C.”) is directed against the judgment and decree, dated 02.09.2009, in A.S.No.13 of 2007, on the file of III Additional District Judge (Fast Track Court), Anantapur, whereunder and whereby, the judgment and decree, dated 04.01.2007, in O.S.No.8 of 1999, on the file of the Senior Civil Judge, Gooty, dismissing the Original Suit filed by the appellants/plaintiffs for declaration that AB lane as shown in the plaint plan and located at Ward No.16 of Guntakal Municipal area is a private lane; that the respondents/defendants have no right to extend the said lane to the south of XY points and for relief of permanent injunction restraining the respondents from removing or demolishing the existing XY wall for creating an access to AB lane from the area shown as Crown Talkies, Guntakal, were confirmed. 2. For better appreciation of facts, the parties hereinafter are referred to as they are arrayed in the trial Court. 3. The brief facts that are necessary for disposal of the present appeal may be stated as follows: Plaintiffs filed the suit stating that plaintiff No.1 and his sons are the owners of houses bearing Nos.16-258, 16-259 and 16-260. Plaintiff No.2 and his sons are owners of houses bearing Nos.16-251, 262 and 263. Plaintiffs along with their families have been residing in their respective houses for the past 40 years. The sites owned by them originally belong to K. Hanumantha Rao. On 22.03.1999, defendant Nos.3 to 6 purchased an open site, where there was originally a theatre viz., Crown Talkies, from defendant No.1. Defendant Nos.3 to 6 took possession of the said property. There was a private lane in front of their houses running from North to South, which was described in the plaint plan as AB lane. The main road locally called as Gooty road is to the North of plaintiffs’ houses. To have access to the sites sold by K. Hanumantha Rao and his brothers to the plaintiffs and to other various persons, the said K. Hanumantha Rao formed a road of about 20 feet wide connecting Gooty road. The said lane is shown as AB lane in the plaint plan. There are houses both to the East and West of AB lane. The said lane is a private lane formed by the owners for the beneficial use and enjoyment of those who purchased the property to the East and West of AB lane. In fact, there is a wall to a height of 8 feet shown as XY in the plaint plan. The AB lane stops and ends at XY wall and it is not extending further to South. In view of the XY wall, which was constructed about 40 or 45 years back, the AB lane ends at point XY. The inmates of the houses on either side of the AB lane and persons who come to their houses only use the said AB lane. Public are not using it. In fact the public has no necessity to use the said lane and they never used it at any time. The inmates of houses on either side of the AB lane constructed pials in front of their houses to sit in the evening and morning hours. The area is peaceful and free from vehicular traffic, air pollution and noise. To the South of XY wall, there was a theatre called Crown Talkies bearing D.No.16-288. It was constructed about 50 years back. The audience to the theatre have access to the Talkies through the western side road locally known as “Crown Talkies Road” and southern side road locally called as “Mahendra Street”. At no point of time, there was access to the theatre from Gooty road along AB lane. Thus, AB lane never extended beyond XY wall and it was not extending further towards South as the theatre exists to the South of AB lane. The plaintiffs further stated that defendant No.1 is the owner of Crown Talkies and defendant No.2 was his close friend and associate. The defendants planned to construct commercial and residential apartments in the area after demolishing Crown Talkies, and accordingly demolished it. To make the area commercially valuable, the defendants are contemplating to extend AB lane up to Mahendra Street and thereby create a link road from Gooty road to Mahendra Street and vice versa. The defendants have no right to extend AB lane up to Mahendra Street and connect the two roads to make AB lane as a public road and to create access to one and all. The defendants are planning to demolish existing XY wall and create access to the AB lane. They have no such right. When once AB lane is made a public road, the plaintiffs and the inmates of their houses and other adjoining house owners will be subjected to hardship and inconvenience. When it is made a public road, vehicles of all kinds including heavy vehicles pass through the AB lane, thereby disturbing peaceful atmosphere in that area. There would be pollution, disturbance to peaceful habitation and the existing calm, peaceful environment in the area would be totally disturbed thereby making living to the inmates of the houses therein highly difficult. In fact, defendants have no right to extend AB lane further towards South and connect it to another busy street. The site where the theatre was located got access both from West and South. The actions and designs of the defendants were highly objectionable and affect the rights of the plaintiffs. Hence, the suit seeking relief of declaration that the AB lane is a private lane and for permanent injunction. 4. Defendant No.2 filed written statement, which was adopted by defendant Nos.1 and 3 to 6 opposing the claim of the plaintiffs, and contending that the suit is not the suit is bad for mis-joinder of parties. AB lane has always been a public road. It was vested in municipality. The said road was maintained by the municipality. Every citizen has right of using the said lane. Plaintiffs cannot prevent any person from using of the said lane. The entire Crown Talkies was demolished. Presently it was an open place. It was locally called as “Sreepathi Rao Road”. The compound wall was erected for the purpose of privacy. The demolition of compound wall is within the right of the defendants and other owners. AB lane was adjoining the compound wall of the defendants. Defendants have right to use public road. Construction of the wall indicates that AB lane is not a blind lane. The plaintiffs are rich and powerful. Plaintiff No.1 wanted to purchase the site, but he was not successful. Some of the Pials were constructed recently at the instance of plaintiffs. There is very heavy vehicular traffic in the said lane. The Guntakal Municipality has issued an endorsement bearing R.C.No.1042/99/G1, dated 30.03.1999, to the effect that the AB lane was a public road and it was being maintained by the Municipality. Public were using the said AB lane, which was a cement concrete road formed by the Municipality under the general funds about 30 years back. The street survey number is 134 and it is not a private road. The original owners of the site, where the Crown talkies was existing, sold the same to defendant No.2 and the plan was also attached to sale deed. Defendant No.1 and his brother Adinarayana Gowd sold away a portion of the property marked as AB in the plaint plan in favour of defendant No.2 to an extent of 353 square yards under a registered sale deed, dated 22.03.1999. Likewise, defendant No.1 and his brother Adinarayana Gowd have also sold away remaining extent of 2210 square yards to Vasavi Associates under sale deed, dated 22.03.1999. Previously, O.S.Nos.9 of 1970 and 10 of 1970 were filed before District Munsif, Gooty, whereunder the AB lane was subject matter of the suits and the said AB lane was held to be public road. It is to the knowledge of the plaintiffs. Plaintiffs have suppressed the same and instituted the present suit with false allegations. Defendants, therefore, submitted that the suit of the plaintiffs be dismissed. 5. Basing on the above pleadings, the following issues are framed for trial: “1. Whether AB mentioned lane is private lane as contended by the plaintiffs? 2. Whether the suit is bad for non-joinder of necessary parties? 3. Whether the plaintiffs are entitled for declaration and consequential perpetual injuction? 4. To what relief?” 6. During trial, PWs.1 to 7 were examined and Exs.A1 to A12 were got marked on behalf of the plaintiffs. On behalf of the defendants, DWs.1 to 5 were examined and Exs.B1 to B8 were got marked. Exs.C1 to C3 were got marked on behalf of the Commissioner and Ex.X1 was also got marked. 7. The trial Court after considering the evidence on record came to the conclusion that the AB lane in dispute is not a private lane and the plaintiffs failed to establish that the disputed lane is a private lane and accordingly, dismissed the Original Suit. On appeal, the appellate Court dismissed the appeal confirming the said judgment and decree. Challenging the same, the present Second Appeal is filed by the plaintiffs. 8. Learned counsel for the appellants/plaintiffs contended that both the Courts below are not correct in not decreeing the suit as Exs.A2 to A7 establish that the AB lane is a private lane; that the wall at the point XY has been in existence for over 30 years; that at no point of time the AB lane was used by staff of the Crown Talkies or by the persons going to the Crown Talkies and hence, he prays to set aside the impugned judgment. 9. Sub-section 1 of Section 100 C.P.C. declares that an appeal shall lie to the High Court from every decree passed by any Court subordinate to the High Court, if High Court is satisfied that the case involves a substantial question of law. The following questions can be said to be substantial questions of law covered by Section 100 C.P.C.: (i) a finding is based upon no evidence on record (ii) taking into consideration irrelevant or inadmissible evidence (iii) misconstruction of documents or document (iv) gross miscarriage of justice (v) perverse finding (vi) inconsistent and contraction findings etc. The above aspects are illustrative but not exhaustive. To know whether the findings are correct or not, it is necessary to refer to the evidence adduced by the parties. 10. The dispute is whether the AB lane shown in the plaint plan is a private lane as contended by the appellants or it is a public lane used by the public? The evidence of PW.1 would go to show that he purchased the said land in the year 1957 in favour of his wife, Adi Lakshmamma, under Ex.A5, certified copy of Registered Sale Deed, from Hanumantha Rao. The eastern boundary of the said sale deed shows that it is the passage left by the original owner. The property covered by Ex.A5 was purchased by Adi lakshmamma under a registered sale deed, dated 29.10.1969 - Ex.A4, which also reveals that the eastern boundary is a road. The property covered under Ex.A4 was originally purchased by one Satyanarayana from his vendor and the original owner Hanumantha Rao purchased the property under the original of Ex.A2. The said property covered under Ex.A2 also shows that the eastern boundary is a passage left by the vendor and others. From Satyanarayana, the said property was purchased by one Jakka Papaiah under the original of Ex.A3. The eastern boundary of the property covered under Ex.A3 is also shown as the road. So, the appellants/plaintiffs failed to establish that the lane in dispute was a private lane. All these documents would clearly go to show that the disputed lane is a road. 11. The Municipal Executive Engineer, who was examined as DW.3, clearly stated that prior to 2005, Municipality laid the road in street No.134 and that as per Municipal records the disputed lane is Municipal street. He filed Ex.X1, which is the topographical plan. The extract of street survey plan is Ex.B6. Further, it is not in dispute that in the year 1966 a resident of the public street by name Venkata Rao filed O.S.No.207 of 1966 before the Junior Civil Judge, Gooty against the Guntakal Municipality when it issued notice to him to remove encroachments made in the street. An Advocate Commissioner was appointed and he filed his report. The report would go to show that the disputed lane is a street. Similarly, the Municipal Executive Engineer has stated that the Municipality is maintaining the disputed lane for over 30 years. So contrary to this evidence, there is no other evidence adduced by the appellants to show that they are in continuous possession, exclusive use and enjoyment of the said lane and that the lane in dispute is a private lane. None of their title deeds or the title deeds of their vendors would disclose that the disputed lane exclusively belongs to them. On the other hand, the documents filed by the plaintiffs would clearly go to show that the eastern boundary is a road. Such is the case, the appellants cannot claim exclusive right over the disputed lane to use the same. Therefore, both the Courts below rightly dismissed the claim of the appellants, when the appellants are not entitled for declaration that the lane in question exclusively belongs to them. None of the findings is shown to be perverse or contrary to law. The categorical findings are based upon proper appreciation of evidence on record. Hence, there are no grounds to interfere with the impugned judgment. There is no substantial question of law involved in the Second Appeal to admit the same. The Second Appeal is devoid of merit and is liable to be dismissed. 12. Accordingly, the Second Appeal is dismissed at the stage of admission. There shall be no order as to costs. _______________ K.C. BHANU, J November 08, 2010 MD IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE EIGHTH DAY OF NOVEMBER TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU SECOND APPEAL No.301 OF 2010 Between: C. Aruna Chalam (died) and others .....PETITIONERS AND A. Girinatha Gowd and others ....RESPONDENTS The Court made the following: THE HON’BLE SRI JUSTICE K.C. BHANU SECOND APPEAL No.301 OF 2010 November 08, 2010