HON’BLE MR JUSTICE R. KANTHA RAO S.A.NO.770 OF 2000 DATED: 28.12.2011 BETWEEN: Kosanam Chandra Mouleswara Rao .. Appellant And Vartha Kota Subba Rao .. Respondent HON’BLE MR JUSTICE R. KANTHA RAO S.A.NO.770 OF 2000 JUDGMENT: This second appeal is filed against the decree and judgment dated 22.02.2000 passed by the District Judge, Krishna, Machiliatnam in A.S.No.66 of 19994 confirming the decree and judgment dated 29.04.1994 passed by the I Additional District Munsif, Machilipatnam in O.S.No.77 of 1987. 2. The unsuccessful plaintiff in the first appeal filed the present second appeal. 3. For the convenience sake, the parties will be referred to as ‘the plaintiff and the defendant’. 4. The plaintiff instituted the suit for recovery of possession of Plot Nos.3 and 4 after removing shed situated therein, for grant of mandatory injunction for removing the wall constructed blocking Plot Nos. 3 and 4 and for removing wall with eaves encroached portion into joint lane in Plot No.5 and for restoring the wall and for permanent injunction and other consequential reliefs. The said O.S.No.66 of 1994 was partly decreed substantially granting the reliefs prayed for by the plaintiff and in the appeal filed therefrom the findings of the trial Court were confirmed in A.S.No.66 of 1994 by the first appellate Court and the appeal filed by the plaintiff was dismissed. Aggrieved by the same, the plaintiff filed the present second appeal. 5. I have heard the learned counsel appearing for the appellant. There is no representation for the respondent. 6. The brief facts necessary for considering the second appeal may be stated as follows: 7. The case of the plaintiff is that he is entitled to draw water from the well situated in the backyard of the defendant’s house from going through plot Nos. 3 and 4. The plaintiff purchased the schedule house through a registered sale deed dated 01.09.1966. Since the date of purchase, he has been in possession and enjoyment of the schedule property with a right of way in the joint lane shown as Plot No.5 and with a right to draw water from the well in the backyard of the defendant. The defendant being the adjacent owner took advantage of the situation and illegally constructed a wall between ‘E’ and ‘H’ points in continuation of the wall K – H in the plaint plan. Therefore, blocked and obstructed the plaintiff’s ingress and egress to Plot Nos. 3 and 4 and also to take water from the well. The defendant encroached the said site one foot in width and 27 feet in length in the joint lane. The same was decided in O.S.No.288 of 1960 by the Sub-Court by its judgment dated 06.04.1963, which was confirmed in A.S.No.5 of 1964 on 25.11.1965 between the father of the defendant and the vendor of the plaintiff. In violation of the said judgment, the defendant constructed a wall and also projected the eaves into the joint lane bearing Plot No.5 and also constructed a shed in Plot Nos.3 and 4 and removed the well which had been, existing since times immemorial. 8. On the other hand, the defendant contended that the plaintiff has only easementary right. The necessity had ceased with the collapse of the well way back in the year, 1960 itself. The defendant claimed to have purchased his house premises in the year 1970 from his vendor who purchased it in the year 1948 from his vendor who purchased it in the year 1948 under a sale deed dated 05.02.1948 from Muvvala Veeresalingam and his sons with a thatched shed therein on a wall along the eastern boundary. Some time later he converted the thatched house into an open terraced building without any encroachment into the joint way depicted as plot No.5. The eastern eaves were projected over the plot no.5 joint pathway even when the defendant’s vendor converted the shed into thatched house. The claim for mandatory injunction to remove the eastern wall and the eaves was barred by res judicata in view of the decision in A.S.No.5 of 1964 on the file of the Sub-Court, Bandar, which became final. The plaintiff’s claim for restoration of the well for mandatory injunction was barred by Order II Rule 2 C.P.C. inasmuch as even by the time of the earlier suit O.S.No.288 of 1960 the well became useless and so closed and the plaintiff’s predecessors-in-title acquiesced in such closure and did not claim restoration. The plaintiff’s easementary right to draw water from the well extinguished and therefore, cannot be revived. Plot Nos.3 and 4 were part and parcel of the defendant’s site over which only a right of way was existing merely as an easement of necessity which itself was extinguished. 9. The second appeal has been admitted by this Court on considering the involvement of the following substantial questions of law for consideration: 1) Whether the failure to frame the points for determination covering all the matters of controversy between the parties and giving findings on each of them would not vitiate the judgment of the appellate Court and render it liable to be set aside? 2) When the reading of the plaint and various admissions of plaintiff as PW.1 and his predecessor in title-Ex.B.5 clearly shows that the claim of the plaintiff with regard to Plot Nos.3 and 4 is based on easementary right of passage to the well, whether the Court below erred or not in granting the decree for declaration and possession of plots 3 and 4 including the mandatory injunction for restoration of the well also to provide a new well? 3) Whether the Courts below erred in granting the decree ignoring completely the admissions of the predecessor in title in Ex.B.5 to the effect hat the so called easementary rights of passage ceased to exist and extinguished by 1962 which are binding on the plaintiff and as such the plaintiff is not entitled to any relief. 4) Whether the Courts below in ignoring the well established principles of law that the plaintiff has to succeed or fail on the strength of his own case but not on account of any weakness or lacuna in the case of the defendant and granting the decree even though the plaintiff failed to establish his case and even ignoring number of admissions of plaintiff and his predecessor in title in Ex.B.5 also misreading the evidence of the defendant and number of documents filed on his behalf? 10. Against the claim of the plaintiff that he acquired the title to the Plot Nos.3 and 4 of the plaint plan and that he acquired the right to draw water from the well situated on the southern side of Plot No.4 going from the backyard of the site of the defendant and also that he has right of passage through Plot No.5. The contention of the defendant is that the plaintiff never acquired any title to Plot Nos.3 and 4 and that he had only an easement of necessity to pass through Plot Nos.3 and 4 in order to access to the well, and that subsequently by non-user of the well, the said right of easement had been extinguished as far back in the year 1962 as the well was closed. According to the plaintiff, when the defendant had constructed an obstructive wall preventing access of the plaintiff to the Plot Nos.3 and 4, he instituted a suit claiming the reliefs aforementioned. Inter alia, it was contended by the defendant that there was earlier litigation between the predecessors-in-title of the plaintiffs and others in O.S.No.282 of 1960, the decision of which became final which is against the plaintiff. The present claim of the plaintiff is barred under Order II Rule 2 C.P.C. As to this, the learned first appellate Court rightly held that in the earlier suit No.288 of 1960 the subject matter was merely the right of passage through the present plot No.5 and that alone was to be determined finally and there was no occasion in the said suit for claiming rights in respect of Plot Nos.3 and 4 and the well in the rear portion of the defendant’s site and therefore, the contention of the defendant that the present suit filed by the plaintiff is barred under Order II Rule 2 C.P.C. has no force. 11. In so far as the title of the plaintiff in respect of Plot No.s3 and 4 is concerned, he traced the title to Ex.A.1 sale deed dated 07.09.1966. In reply to a lawyers notice issued under Ex.A.2 by the plaintiff, the defendant got sent E.A.3 reply notice clearly stating therein that the defendant did not encroach into plot Nos.3 and 4 and did not construct any boundary wall on the eastern side of building. Despite the specific admission as to the right of the plaintiff in respect of Plot Nos.3 and 4 the defendant in his written statement took a plea that Plot Nos.3 and 4 did not belong to the plaintiffs. This apart, Ex.A.6, Court sale certificate of the year 1956 also establishes the title of the plaintiff in respect of Plot Nos. 3 and 4 and the description of the property in Exs.A.6 and A.11 is one and the same. The defendant gave evidence before the trial Court on 17.03.1993 and his evidence before the trial Court falsifies his version that the well was filled up and closed way back in the year 1962. He deposed before the trial Court that prior to the filling up of the well, Muvala Kota Papaiah used to draw water from the well through a door way on the east-south corner abutting to their house and the same was continuing till today after the reconstruction of the house. However, he asserted in his deposition that there was no passage through Plot Nos.3 and 4 at any point of time. Thus, as rightly held by the learned first appellate Court even by 17.03.1993, when the defendant gave evidence before the trial Court, the well was in existence and that his contention that the well was closed as far back as in the year 1962 is apparently false. 12. Thus, on proper appreciation of the pleadings of the parties and the evidence adduced on either side both the Courts below recorded concurrent findings that the plaintiff could establish his title to Plot Nos.3 and 4 and also his right to access to the well that could be reached only through Plot Nos.3 and 4. Further that the defendant illegally erected a wall between the points ‘E’ and ‘H’’ in the plaint plan going into Plot Nos.3 and 4 through the backside of the defendant’s site and decreed the suit in part recognizing the rights of the plaintiff in respect of Plot Nos.3 and 4 and well situated on the back side of the defendant’s site. The direction issued by the trial Court for removal of the obstructing wall constructed by the defendant preventing the access of the plaintiff to Plot Nos.3 and 4 and also the well is confirmed by the learned appellate Court. The suit of the plaintiff was dismissed in respect of Plot No.5. The findings of both the Courts below are based on evidence, reasoning and strictly in accordance with law. None of the questions raised by the defendant in the grounds of appeal, in fact do constitute substantial questions of law requiring for consideration in the second appeal by this Court. 13. The second appeal therefore, fails and the same is dismissed. There shall be no order as to costs. _________________ Date: 28.12.2011 R. KANTHA RAO, J kvrm HON’BLE MR JUSTICE R. KANTHA RAO S.A.NO.770 OF 2000 DATE: 28.12.2011