IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE NINETH DAY OF AUGUST TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Second Appeal No.1303 of 2010 Between: Ismathullah Iqbal Ahmed .. Appellant AND Farzana Khateen and another .. Respondents JUDGMENT: The Second Appeal is directed against the judgment and decree in A.S.No.78 of 2009 dated 23-08-2010 on the file of the Chief Judge, City Civil Court, Hyderabad. The parties are referred to herein as they are arrayed before the trial Court. The factual background for the second appeal is that the plaintiff sought for a perpetual injunction against the defendants in respect of the suit schedule property described as a house admeasuring 110 square yards including common passage towards eastern side. The plaintiff claimed to be the absolute owner and possessor of the suit schedule property including the common passage towards eastern side in pursuance of the purchase by his wife under a registered Sale deed dated 06-10- 1978 from Turabunnisa Begum, who became the owner under the registered settlement deed dated 24-05-1966. The plaintiff became the owner and possessor on the death of his wife in May 1983 and his wife and later the plaintiff was in possession of the suit property along with the eastern passage. The passage was specified in the sale deed in favour of the plaintiff’s wife in which the defendants have no right, title or interest, but as they were illegally trying to interfere and got issued a telegraphic notice dated 25-11-2006, the plaintiff gave a suitable reply on 28-11-2006 and was forced to file the suit due to the attempts by the defendants and some unsocial elements on 10-12-2006 to interfere with the possession and enjoyment of the plaintiff over the suit property including the common passage. The police also did not help in spite of approaching them. The defendants denied all the allegations of the plaintiff and contended that the 1st defendant purchased the house No.23-1-630 admeasuring 308 square yards under a registered sale deed dated 24-04-1984 and the open area referred to as a common passage by the plaintiff exclusively belonged to the defendants. The existence of a common passage was denied and any windows and door being in existence was also denied. The question of interference was also denied and the suit was requested to be dismissed. On such pleadings, the trial Court framed the following issues: 1) Whether the plaintiff established the existence of common passage towards eastern side of his property bearing No.23-1-630/1 to 23-1-630/4? If so, whether the plaintiff is having exclusive rights over the said common passage? 2) Whether the suit common open passage is part and parcel of plaintiff’s property? If not, whether it is open place which belongs to defendant? 3) Whether the plaintiff is entitled for the perpetual injunction as prayed for? 4) To what relief? During the trial, PWs.1 and 2 and DW.1 were examined and Exs.A.1 to A.7 and Exs.B.1 and B.2 were marked. The trial Court rendered its judgment observing that the suit being one for injunction, the title can be looked into incidentally while considering the question of possession. The Trial Court considered that Exs.A.1 and A.2 showing the title of the vendor of the plaintiff’s wife and then the defendants were not specifically denied, but PW.1, the plaintiff, admitted the purchase by the 1st defendant and that Ex.B.1/Ex.A.3 is the sale deed of the property bearing Door No.23-1-630 admeasuring 308 square yards. The trial Court referred to the evidence of PW.1 to opine that in the absence of Ex.A.2-registered settlement deed making any reference to a common passage within 110 square yards and the plan annexed to Ex.A.2 also not showing any boundary as common passage, the mention in Ex.A.1 showing the eastern boundary as open passage is doubtful. Concerning Ex.B.1 in favour of the 1st defendant, the trial Court noted the eastern boundary to have been specified as the land and house of Mir Yousuf Ali and the admission by PW.1 was that the defendants never interfered in their construction in 110 square yards. The trial Court further observed that the evidence of PW.2 shows the entire extent to be 418 square yards, out of which the plaintiff’s wife purchased 110 square yards and the 1st defendant purchased 308 square yards leaving no scope for any common passage. The trial Court also opined that PWs.1 and 2 admitted the gate appearing in Ex.A.7-photograph to be belonging to the 1st defendant though PW.1 stated the gate to have been erected with his permission. Observing that Exs.A.4 and A.5- telegraphic notice and reply notice are irrelevant in considering the existence of a common passage, the trial Court opined the plaintiff to have failed in establishing the existence of the common passage or the passage being part and parcel of the suit schedule property. The dismissal of the suit by the trial Court for those reasons without costs led the plaintiff to approach the First Appellate Court with A.S.No.78 of 2009. The First Appellate Court framed the following issues for consideration on the pleadings, contentions and evidence of the parties. 1) Whether there exists any common passage on the eastern side of the property of the plaintiff and if so, whether the plaintiff is having exclusive right over the said common passage? 2) Whether the appellant/plaintiff is entitled for perpetual injunction as prayed for? The First Appellate Court in the impugned judgment noted that PW.1 admitted that the plan annexed to Ex.A.1 mentioned the passage as open passage and that the purchase of 110 square yards includes common passage, while it was not mentioned so in Ex.A.2. The First Appellate Court also noted that in Ex.A.2 the eastern side was shown as property of Mirza Liyakat Ali Baig and the extent of property of the defendants could not be stated by PW.1. The vendor of the defendants was the husband of the vendor of the plaintiff’s wife was admitted. The existence of the gate appearing in Ex.A.2 being erected by the defendants was also noted. The First Appellate Court also referred to the evidence of PW.2, who admitted the correctness of the boundaries shown in Ex.A.2 and the erection of a gate by the defendants, which was claimed to be with the permission of the plaintiff. The First Appellate Court also referred to the evidence of the 2nd defendant, the husband of the 1st defendant as DW.1, who denied any use of the property of the defendants by the plaintiff for approaching the house of the plaintiff. While noting that the parties, therefore, reiterated their respective contentions, the First Appellate Court observed that Ex.A.1 showed the house on a total area of 110 square yards to be having the land of Mirza Liyakat Ali Baig as the eastern boundary. The First Appellate Court also noted that from Exs.B.1 and B.2, it cannot be deduced that the 1st defendant purchased 308 square yards out of 418 square yards purchased by the vendor under Ex.B.2. The First Appellate Court inferred from the plan attached to Ex.B.2 that the property purchased under Ex.B.2 by Mirza Liyaqat Ali Baig includes the property covered by Ex.B.1 and Exs.A.1 and A.2. But, when Ex.A.2-Settlement deed does not disclose the common passage on the eastern side, the burden of proving the right of the plaintiff in the common passage was on the plaintiff. The First Appellate Court also noted that the subsequent addition of the word “common” in Ex.A.1 was admitted by PW.2, while the plan attached to Ex.A.1 also did not disclose the passage to be common, while stating it to be open. The right of the plaintiff’s wife, the original purchaser, to use the common passage was, hence, considered not probablised by Exs.A.1 and A.2 and in view of the admitted permission granted by the plaintiff to the defendants to erect a gate on the south of the land of the 1st defendant, the First Appellate Court felt that the plaintiff cannot complain against the same and agreed with the trial Court that the plaintiff failed to establish his title or possession over the land on the eastern side of the property purchased under Ex.A.1. The dismissal of the appeal without costs for the said reasons led the plaintiff approach this Court contending that the scope of the suit for perpetual injunction was misunderstood by the Courts below and while a passage on the eastern side was mentioned in the documents of the plaintiff, any contrary evidence to show the non-existence of a common passage was not forthcoming. When there were doors and windows to the premises of the plaintiff on the eastern side, the common passage is probablised and if it were to be closed, there will be no access to the house of the plaintiff. The plaintiff suggested six questions as substantial questions of law. On consideration of the same, this Court admitted the second appeal on the question whether the appellant has not perfected his right over the common passage on the eastern side of the appellant’s building by prescription over a statutory period? Heard Sri Nazir Ahmed Khan, learned counsel for the appellant and Sri M. Basith Ali Yavar, learned counsel for the respondents. The consideration herein is on the substantial question of law formulated at the time of admission of the second appeal and also whether any other substantial question of law is involved for consideration within the meaning of the proviso to sub-section (5) of Section 100 read with Order 42 Rule 2 of the Code of Civil Procedure? Sri Nazir Ahmed Khan, learned counsel for the appellant relied on P. Sarojamma v. S. Papa Saheb[1], wherein the learned Judge disapproved the approach of the trial Court in a suit for permanent injunction in focusing its attention to the question whether the appellant has any right by way of prescription in claiming access to the passage and holding that the exercise of such a right fell short of two years for acquiring a prescriptive right. The learned Judge observed that in the suit for injunction simpliciter, the only issue to be decided was as to whether the appellant was exercising such a right before the suit came to be filed and the plea as to prescriptive right, if any, would have been relevant in a suit if it were to be filed by the respondents for any declaration and injunction or if the appellant wanted a declaratory relief. Finding that in view of the evidence therein disclosing the use of the passage from 1984 onwards without interruption, the learned Judge allowed the second appeal and decreed the suit, while leaving it open to the respondent to seek a relief of declaration of his exclusive right over the passage in question and any consequential reliefs. In the light of the principles laid down by the learned Judge, the substantial question of law framed herein is as to whether the appellant has not perfected his right over the common passage on the eastern side of the appellant’s building by prescription over the statutory period does not appear to arise on the pleadings and evidence of the parties, which are in pari materia, with the facts under consideration before His lordship. The question herein was the usage of the alleged common passage by the date of the suit by the plaintiff and any interference with the same by the defendants, but not the perfection of any rights over the common passage or the absence of it. On the principles laid down in the decision relied on by the learned counsel for the appellant, the question formulated at the time of admission, therefore, does not arise for consideration. That leaves the question as to whether any other substantial questions of law arise for consideration herein within the scope of Section 100 and Order 42 Rule 2 of the Code of Civil Procedure and it is seen from the judgment of the trial Court that the trial Court observed the question of having a common passage for enjoyment of both parties does not arise in view of the total extent of the property being 418 square yards out of which the plaintiff’s wife purchased 110 square yards and the 1st defendant purchased 308 square yards. This conclusion is apart from the probabilities, which the trial Court referred to, with reference to the recitals in the documents before it. It is true that Exs.A.4 and A.5- telegram notice and reply from the 1st defendant and the plaintiff respectively were considered irrelevant by the trial Court and it is also true that the possibility of existence of doors opened into the property of the 1st defendant by the plaintiff as disclosed by the exchange of notices is open to be construed as a circumstance from which the existence of the doors should lead to an inference of the possibility of the doors being opened by the plaintiff only because of the right or practice of use of the open space into which the doors were opening. However, any surmises that can be so drawn cannot be equated to evidence sufficient to construe any probablisation of the use of common passage existing in the properties of the plaintiff and the defendants in the light of the other circumstances referred to by the trial Court. Similarly, the First Appellate Court, which went into the rival contentions and the evidence in more depth was justifying its conclusions with reference to the word “common” being inserted in Ex.A.1 subsequently according to PW.2, the absence of any interference with the construction by the plaintiff in 110 square yards purchased by him, the opening of a gate as seen in Ex.A.7 by the defendants with the admitted permission from the plaintiff, the admitted correctness of the boundaries shown in Ex.A.2, the absence of any certainty of the 1st defendant purchasing 308 square yards out of 418 square yards under Ex.B.2, the ultimate conclusion to be drawn from such circumstances about the absence of disclosure of the right of the plaintiff’s right to use passage. These inferences drawn from the evidence on record do not appear susceptible to interference as perverse or to be divorced from the contents of the oral and documentary evidence as contended by the learned counsel for the appellant. If so, no substantial question of law arises in the second appeal against the concurrent findings of fact by the trial and First Appellate Courts about the absence of proof of user of the passage claimed by the plaintiff as on the date of the suit. In the absence of any question of law involved in such a finding of fact, the second appeal is not maintainable as in a second appeal, pure questions of fact are not available for reappreciation. However, the learned counsel for the appellant refers to the scope for the plaintiff to approach the Civil Court with a more comprehensive suit in respect of the right in the alleged passage, while the learned counsel for the respondents pleaded that nothing is left further to be determined in this regard, the conclusion in the suit and the appeal being capable of operating as res judicata in any such further litigation. No expression of opinion on these questions needs to be made in this judgment as the jurisdiction to entertain a second appeal itself does not exist in the absence of a substantial question of law. If the parties so desire and are so advised, they may pursue any appropriate remedies available to them under law in this regard in any proceedings instituted by or against them. In the result, the second appeal is accordingly dismissed without costs. _____________________ G. BHAVANI PRASAD, J Date: 09-08-2011 Ksn [1] 2010 (6) ALT 650