IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE EIGHTH DAY OF SEPTEMBER TWO THOUSAND AND TEN PRESENT THE HON’BLE SRI JUSTICE VILAS V.AFZULPURKAR SECOND APPEAL NO.387 OF 1999 Between : O.Siddaramaiah ... PETITIONER AND O.Siddaiah(died) others. … RESPONDENTS THE HON’BLE SRI JUSTICE VILAS V.AFZULPURKAR SECOND APPEAL NO.387 OF 1999 JUDGMENT: This is a plaintiff’s appeal to the extent of rejection of second relief sought seeking the right of way to Survey No.570/2 through Survey No.572/1. The said relief was rejected by the trial Court as well as the lower appellate Court on the basis of the evidence available on record. Hence, the present appeal. 2. The case of the plaintiff is that he along with original defendant, who is his brother, inherited Survey No.570/2 and 572/1 situated at Chandragiri Town, Chittoor District. The father of the parties died long back and all other properties inherited from the father were already partitioned, except the aforesaid two items. 3. The plaintiff claims that he is entitled to half a share in Survey No.570/2 and on the similar lines as Survey No.572/1 was also divided into two shares one each for plaintiff and defendant. The plaintiff, however, contends that the said Survey No.570/2 is adjacent to Survey No.572/1, and it has no right of way. The suit was therefore, filed by the plaintiff against his brother, seeking partition of Survey No.570/2 admeasuring 54 cents into two equal shares, and further seeking the right of way to the half a share of the plaintiff in survey No.570/2 through survey No. 572/1. Rejection of the said second relief by both the Courts below is the subject matter in this appeal, though decree for partition with regard to survey No.570/2 is granted in favour of the plaintiff by both the Courts below. 4. Heard learned counsel appearing on both sides. 5. The second appeal was admitted on 31.03.2001, without framing the substantial questions of law. After hearing both sides, it is noticed that the grounds of appeal under ground No.6 (a) (b) and (c ) raised the substantial questions of law. As the appeal was admitted without formulating any substantial question of law, both the counsel agreed to frame the substantial questions of law. Keeping in view that this appeal is of the year 1999, I deem it appropriate to frame the following question for consideration under sub clause (5) of Section 100 C.P.C. Whether the courts below are justified in allowing the suit for partition and granting a decree in favour of the appellant for an extent of Ac.0.27 cents in Sy.No.570/2 without directing the respondents to provide pathway through Sy.No.572/1? 6. Learned counsel appearing for the appellant contends that the decree for partition with regard to survey No.570/2 granted by both the Courts below would be of no use and the plaintiff would not be able to enjoy the said half a share in the absence of any right of way to the plaintiff. He submits that the evidence on record clearly establishes that except the way through Survey No.572/1, there is no other access possible to the suit Survey No.570/2. Thus, the plaintiff’s half a share by virtue of the decree of partition granted by both the Courts would be realistic and enjoyable by providing necessary access and in that view he supports the second relief claimed by the plaintiff. 7. Learned counsel for the respondents, however, opposed the said contention on the ground that the existence of a way from Survey No.572/1, is not established by the plaintiff and consequently any legal right thereto also cannot be claimed. He submits, that the concurrent findings of both the Courts below on that aspect warrant no interference. 8. I have considered the aforesaid submission. In para No.15 of the judgment of the trial Court, it was categorically found that existence of the Rasta was not established by the plaintiff. As such, the initial burden of establishment of right of way through Survey No.572/1 to reach the suit land has not been proved by the plaintiff. 9. The lower appellate Court also noticed that there is no material to show that there is marked parth way recognized by the Revenue authorities nor there is any such way in existence since generation. Therefore, the said plea was rejected. 10. This Court also find from the record that in Survey No.572/1 plaintiff and defendant were granted half a share each and plaintiff sold away his half a share to the defendant in the year 1948 under a registered sale deed. Thus, the entire land of Ac.5.95 cents in said survey No.572/1 was though shared in proportion of 2.47 ½ cents each, on account of sale of the plaintiff’s half a share to the defendant in the said survey number, the defendant has become exclusive owner and possessor of Survey No.572/1. He cannot, therefore, be compelled to provide an access to the plaintiff to enable the plaintiff to enjoy his half a share in Survey No.570/2 and, therefore, this Court is unable to find any perversity or error in the findings recorded by both the Courts below insofar as the said second relief is concerned. 11. Therefore, the substantial question of law, is answered against the appellant and the appeal is liable to be dismissed and accordingly dismissed. This will however, not preclude the appellant- plaintiff to seek and enforce any other legal right for access by appropriate proceedings in accordance with law, if he is so advised. There shall be no order as to costs. ___________________________ VILAS V.AFZULPURKAR,J SEPTEMBER, 08, 2010 YVL