IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD WEDNESDAY, THE EIGHTH (8TH) DAY OF JUNE, TWO THOUSAND AND ELEVEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY SECOND APPEAL No.759 of 1999 & SECOND APPEAL No.193 of 2006 SA No.759 of 1999: Between: Smt. Sarala Bai Joshi … Appellant And: C Ramesh Chander (died) & others … Respondents SA No.193 of 2006: Between: Smt. Sarala Bai Joshi … Appellant And: C Ramesh Chander (died) & others … Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY SECOND APPEAL No.759 of 1999 & SECOND APPEAL No.193 of 2006 COMMON JUDGMENT: SA No.759 of 1999 is directed against the judgment and decree dated 27.02.1999 in AS No.60 of 1998 on the file of the I Additional Chief Judge, Secunderabad, wherein, the said appeal filed by the first respondent herein was allowed setting aside the judgment and decree dated 08.06.1998 in OS No.1395 of 1995 on the file of the XI Assistant Judge, City Civil Court, Secunderabad, where under, the suit was decreed granting permanent injunction. 2. SA No.193 of 2006 was filed by the same appellant against the judgment and decree dated 27.12.2005 in AS No.38 of 2003 on the file of the Additional Chief Judge cum Judge, Family Court, Secunderabad, wherein, the said appeal filed by the appellant was dismissed confirming the judgment and decree dated 31.10.2002 in OS No.383 of 1999 on the file of the XVII Junior Civil Judge cum Principal Rent Controller, Secunderabad, where under the suit filed by the appellant herein for recovery of possession and for permanent injunction was dismissed. 3. Arguments of both sides are heard. Perused the record. 4. The appellant herein filed OS No.1395 of 1995 for permanent injunction alleging that she is the absolute owner of the house bearing D.No.8-2-514 situated at Paranjyothi Street, Kakaguda, Secunderabad, having purchased the same under registered sale deed dated 03.03.1993. As the building was dilapidated, she re-constructed the same after obtaining sanction from the municipal corporation. The premises comprises verandah, abutting public lane and behind verandah, there is an open space. The said verandah admeasures 14’.9” from north to south. The defendant is the owner of the house bearing D.No.8-2- 515 situated on the south of the plaintiff’s house. The defendant has undertaken construction of a new building in the place of old house and in that process, high-handedly dismantled the portion of the plaintiff’s house and tried to make construction thereon in a space of 14.9 ft x 7’. When the plaintiff wanted to plaster the southern wall of her house from out side, though it was constructed with brick and cement mortar, the defendant objected for the same and drove the workers away. Hence, the plaintiff filed suit for permanent injunction. 5. The first respondent/defendant filed written statement contending that one C. Satyanarayanarao, father of the plaintiff and defendants was the owner of both houses bearing Nos.8-2-514 & 515 and after his death, the house bearing D.No.8-2-515 was allotted to one Nandakishore under a Will dated 29.07.1981 executed by Satyanarayana Rao and the said Nandakishore sold the property to the plaintiff’s vendor under registered sale deed, from whom, the plaintiff subsequently purchased. The defendant became to entitled the house bearing D.No.5-2-515 under the same Will and ever since the death of her father, the defendant has been in possession and enjoyment of the same. The defendant’s brother Nandakishore filed suit OS No.1081 of 1990 against the defendant and the same was dismissed. The plaintiff through her husband chipped of the portion of the wall to the extent of 8 to 9 inches, as a result of which the wall got damaged and collapsed. Thereafter, the plaintiff raised construction. The plaintiff demolished verandah and got a new grill door erected and completed her portion. The portion of the verandah allotted to the defendant under Will admeasures 6 ft. 6” on the eastern side and the remaining portion of the verandah belongs to Nandakishore. The plaintiff is falsely claiming rights to the entire portion of the verandah which she is not entitled to. 6. On the strength of the pleadings, the trial court framed the following issues. 1. Whether the plaintiff is entitled for permanent injunction? 2. To what relief? 7. During the trial, the plaintiff’s husband was examined as PW.1 and Exs.A.1 to A.4 were got marked. An Advocate Commissioner was examined as PW.2 and Exs.C.1 to C.15 were marked. The defendant examined himself as DW.1 and Exs.B.1 to B.3 were got marked. 8. On a consideration of the evidence available on record, the trial Court held that the plaintiff is entitled for permanent injunction and accordingly, the suit was decreed. Aggrieved by the same, the defendant filed appeal in AS No.60 of 1998. The learned I Additional Chief Judge, Secunderabad, by impugned judgment dated 27.02.1999 allowed the said appeal and set aside the judgment and decree passed by the trial Court. Aggrieved by the same, the present second appeal is filed. 9. Learned counsel for the appellant/plaintiff would contend that the impugned judgment of the trial Court suffers from perversity in appreciation of the evidence and distortion of the case wrongly throwing the burden on the plaintiff and reversed the judgment and decree passed by the trial Court, without any basis and by resorting to some assumptions, is unwarranted. Learned counsel for the respondents/ defendants, on the other hand, would contend that as per the Commissioner’s report and plan, the plaintiff’s vendor had only 9 ft. 9” and the same was subsequently sold to the plaintiff and the plaintiff cannot get better title than what her vendor had and the evidence on record establishes that the defendant has been in possession and enjoyment of 5 ft. 5” which is balance area and there is no substantial question of law involved. 10. Subsequent to filing of the suit OS No.1395 of 1995, plaintiff filed OS No.383 of 1999 for recovery of possession of the plaint schedule premises shown as ‘ABCD’ in the plaint plan and for injunction. The plaint schedule in the said suit is the disputed verandah measuring 6 ft. 3” x 7 ft. The respondent/defendant filed written statement contesting the suit. After full-fledged trial, the suit was dismissed by the trial Court by judgment dated 31.10.2002. Aggrieved by the same, the plaintiff filed appeal in AS No.38 of 2003. The learned Additional Chief Judge, Secunderabad, by judgment dated 27.12.2005 dismissed the said appeal. Assailing the same, the plaintiff filed the present Second Appeal No.193 of 2006. Learned counsel for the appellant would contend that the appeal was dismissed without any appreciation of evidence, but simply going by impugned judgment in AS No.60 of 1998 dated 27.02.1999, which is impugned in SA No.759 of 1999. 11. As these two second appeals arise between the same parties and in respect of the same subject matter i.e., disputed portion of the verandah situated to the south of the plaintiff’s house, they are heard together and disposed of by this common judgment. 12. The plaint schedule property bearing D.No.8-2-514 belonging to the plaintiff is situated to the north of the house bearing D.No.8-2-515 belonging to the defendant. The dispute between the parties relates to verandah measuring 14.9 ft. x 7 ft. situated to the east of the plaint schedule property. The plaintiff claims to be the owner of the entirety of the said verandah, whereas the defendant claims that a portion of the said verandah measuring 5 ft. 7” forms part of his house bearing D.No.8-2-515 and the plaintiff has got right over the balance extent of 9.9 ft x 7 ft. of the verandah. It is not disputed that originally, one Satyanarayana Rao, father of the defendant and the plaintiff’s vendor’s vendor Nanda Kishore, purchased the house bearing D.No.8-2-514 from Yethirajulu under registered sale deed Ex.A.3. Satyanarayanarao purchased the southern house bearing D.No.8- 2-515 under Ex.B.1 sale deed. It is also not disputed that Satyanarayana Rao executed a Will dated 27.09.1981 under which he bequeathed the northern house bearing D.No.8-2-514 in favour of Nandakishore and the southern house bearing D.No.8-2-515 in favour of his other son, defendant. Nanadakishore sold the northern house bearing D.No.8-2-514 in favour of Rameshkumar Malla under Ex.A.2 sale deed and he in turn sold the same in favour of plaintiff under Ex.A.1. It is also not disputed that in the original sale deed Ex.A.3 in favour of Satyanarayanarao and the plaintiff’s sale deed Ex.A.1, the eastern side verandah 14 ft. 9” x 7’ is shown as forming part of the house bearing D.No.8-2-514. The defendant in the course of his cross-examination has also made certain crucial admissions to the effect that as per the sale deed and plan Ex.A.4, verandah in question is included in the property of the plaintiff. The admissions made by the defendant as DW.1 in the evidence are extracted in the judgment and decree of the trial Court and the reliance was placed on those admissions by the trial Court. 13. The appellate Court, however, choose to ignore the impact of those admissions by indulging in certain assumptions, by noting that in Ex.A.3 original title deed in favour of the plaintiff’s vendor’s vendor and also in Ex.A.1 title deed in favour of the plaintiff, the entire verandah was shown as forming part of the plaintiff’s house bearing D.No.8-2-514. The appellate Court while considering Ex.A.2 wherein the width of the verandah was noted as 9 ft. 9”, assumes that father of the defendant seems to have made slight modification where by he reduced the verandah of 14 ft 9” to about 9 ft. 9” in the portion of 8-2-514 and added balance 5 ft. to the portion of 8-2-515 of the defendant and obviously that was the reason for showing the width of the verandah in 9 ft. 9” in Ex.A.2. There is absolutely no basis for such an inference to the effect that Satyanarayana Rao, father of the defendant and the plaintiff’s vendor’s vendor effected any such partition of the verandah in to two portions and added the northern portion of 9 ft. 9” width to the plaintiff’s house bearing D.No.8-2-514 and the southern portion of 5 ft. width to the defendant’s house D.No.8-2- 515. The appellate court observed that when the plaintiff’s vendor’s vendor himself had only 9 ft. 9” width of verandah under Ex.A.2, he could not have sold more than the same and therefore, the plaintiff has not explained as to how he got extra 5 ft. width under Ex.A.3. This observation is a sequel to the assumption made by the appellate court to the effect that the defendant’s father divided the verandah in to two portions and added the southern portion of 5 ft. to defendant’s house and retaining the northern portion of 9 ft. 9” width to the plaintiff’s house, for which assumption, there is no basis either in the pleadings or in the evidence. The further observation of the appellate Court that the plaintiff on whom burden lies has not explained as to how the extra 5 ft. come to his verandah also emanates from the same assumption. When the said assumption is itself found to be baseless, all the observations made by the appellate Court arising from out of the said assumptions are equally unsustainable. 14. Admittedly, in the original title deed Ex.A.3, the entire verandah measuring 14 ft. 9” width is shown as forming part of the house property bearing D.No.8-2-514. When the defendant claims right to a portion of the said verandah, the burden lies on him to establish his claim. On the other hand, the defendant as DW.1 also admits that as per the title deeds, the verandah in its entirety is included in the house bearing D.No.8-2-514. In the light of the recitals in the title deeds Exs.A.1 and A.3 and the admission made by DW.1 in the evidence, the observation of the appellate Court in the impugned judgment that the plaintiff failed to establish as to how he got 5 ft. extra is unwarranted. In view of the recitals in Ex.A.3 in the original title deed wherein the entire verandah is shown as forming part of D.No.8-2-514 and in the absence of any evidence to show that there was partition of the verandah in to two portions and the southern portion of 5 ft. width was allotted to the defendant’s house D.No.8-2-515, it cannot be said that the plaintiff has established his claim simply because in Ex.A.2 the intervening document, the width of the verandah is mentioned as 9 ft. 9”. In the plaintiff’s title deed Ex.A.3 the width is again mentioned as 14 ft. 9” in accordance with the original title deed Ex.A.1. The appellate Court chose to ignore the admission made by DW.1 in the evidence again indulging in certain assumptions, like assuming that the plain is obviously prepared wrongly and the admission is obvious mistake etc. 15. Suit OS No.1395 of 1995 is for mere injunction restraining the defendant from making any encroachment in to the plaintiff’s property bearing D.No.8-2-514, which according to the plaintiff includes entire verandah. The title deed of the plaintiff under Ex.A.1 and the original title deed Ex.A.3 would prima-facie go to show that the verandah forming part of the plaintiff’s house bearing D.No.8-2-514 and the admission made by the defendant in evidence, which are extracted in the judgment of the trial court, would also supports the same. In a suit for injunction, it is well settled that the question of title can only be gone into incidentally. The trial court on due appreciation of the evidence available on record and in view of the title deeds and also admissions made by DW.1, has rightly granted the relief of injunction. The appellate Court, however, by making reference to certain assumptions and presumptions, which have no basis in the pleadings and evidence, reversed the judgment of the trial court for no valid reason. 16. Learned counsel for the respondent/defendant would contend that as the dispute relates to a portion of the verandah, which has to be resolved on evidence, there is no substantial question of law arising from the impugned judgments. It is well settled that when there is no substantial question of law to be decided, a second appeal cannot be entertained. It is equally well settled that when the findings of the trial Court based on the evidence are reversed by the appellate Court based on certain assumptions, which have no factual basis either in the pleadings or in the evidence, interference in the second appeal is certainly called for. On re-appraisal of the evidence on record, the appellate court is certainly justified in a given case to reach at a different conclusion and reverse the finding recorded by the trial court. But when the findings recorded by the trial Court on due appreciation of the evidence are sought to be reversed by the appellate court not on re-appraisal of the same evidence, but by resorting to certain assumptions and surmises for which there is no basis, such findings as recorded by the appellate Court cannot be allowed to stand. 17. In the grounds of appeal and the additional grounds, the very question raised by the appellant is that the finding of the appellate court that the suit premises i.e., verandah 14.9 ft. x 7 ft. as mentioned in Ex.A.3 was modified by the defendant’s father in the absence of any pleadings or evidence either documentary or oral, is hit by non-est factum and the appellate court was not justified in ignoring binding admissions made by the defendant. It is not a case of concurrent findings on the question of fact recorded by the courts below but is a case where the findings recorded by the trial Court are set aside by the appellate court without any basis in the pleadings or in the evidence and in such circumstances, substantial question of law certainly arises and second appeal is maintainable. The impugned judgment dated 27.02.1999 of the appellate Court in AS No.60 of 1998 is accordingly set aside and the judgment and decree dated 08.06.1998 in OS No.1395 of 1995 of the trial Court decreeing the suit and granting relief of injunction is restored. SA No.759 of 1999 is allowed accordingly. 18. Insofar as SA No.193 of 2006 is concerned, the said suit OS No.383 of 1999 was filed subsequent to the disposal of Appeal AS No.60 of 1998 arising from OS No.1395 of 1995. The said appeal was disposed of on 27.02.1999 and OS No.383 of 1999 was filed on 22.04.1999. Subsequently on 05.07.1999 SA No.759 of 1995 was filed assailing the judgment in AS No.60 of 1998. 19. A perusal of the impugned judgment in OS No.383 of 1999 and the appeal arising there from in AS No.38 of 2003 would go to show that the said suit filed by the same plaintiff for recovery of possession of the plaint schedule premises and also for injunction restraining the defendant from demolishing the existing structures relating to verandah and making any new construction in the said portion marked as ‘ABCD’ was decided virtually following the judgment in AS No.60 of 1998, which is impugned in SA No.759 of 1999. Now that the said judgment in AS No.60 of 1998 is set aside, the impugned judgments in SA No.193 of 2006 wherein the suit OS No.383 of 1999 and the appeal AS 38 of 2003 were both dismissed, cannot be sustained and they are also liable to be set aside, as the said suit and the appeal were decided going merely by the judgment in AS No.60 of 1998 than by an independent assessment of evidence from the record. The suit in OS No.1395 of 1995 is for mere injunction, wherein the question of title can be gone in to incidentally. The other suit OS No.383 of 1999 filed for recovery of possession is more comprehensive in nature, wherein question of title has to be gone into in a full- fledged manner before deciding upon the question whether or not the plaintiff is entitled for recovery of possession. The grant of injunction in OS No.1395 of 1995 does not in any manner come in the way of the court adjudicating upon the dispute regarding the title arising in OS No.383 of 1999 while considering the grant or refusal of the reliefs prayed for therein. 20. In the circumstances, it is considered just and necessary that the matter has to be remitted to the appellate court i.e., Additional Chief Judge, Secunderabad for fresh disposal of the appeal in accordance with law, on an independent assessment of the evidence available on record, without in any way being influenced by any of the observations made herein above. The impugned judgment dated 27.12.2005 in AS No.38 of 2003 on the file of the Additional Chief Judge, City Civil Court, Secunderabad is accordingly set aside and the matter is remitted to the appellate Court as stated above. In the result, SA No.193 of 2006 is disposed of accordingly. 21. In the result, SA No.759 of 1999 is allowed and SA No.193 of 2006 is disposed of as stated above. No order as to costs in both the appeals. ____________________ G.V.SEETHAPATHY, J Date: 08.06.2011 bss