IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD TUESDAY THE TWENTYNINETH DAY OF MARCH TWO THOUSAND AND ELEVEN PRESENT THE HONOURABLE SRI JUSTICE R. KANTHA RAO *** SECOND APPEAL No. 733 OF 1999 Between: Syed Mohammed Ghouse Peer … Appellant-Defendant V/s. Shaik Khaja & 4-Ors. … Respondents-Plaintiffs Counsel for the Appellant : Sri S.V. Bhatt Counsel for the Respondents : Sri S. Suryaprakash Rao The Court made the following : Judgment follows 2nd page THE HONOURABLE SRI JUSTICE R. KANTHA RAO SECOND APPEAL No. 733 OF 1999 JUDGMENT : This second appeal is filed against the judgment and decree dated 22-03-1999 passed in A.S.No. 3 of 1998 by the learned Senior Civil Judge, Madanapalle, Chittoor district, reversing the judgment and decree dated 30-04-1992 passed in O.S.No.125 of 1986 by the Principal District Munsif, Madanapalle. 2. Heard the learned counsel for the appellant as well as the learned counsel for the respondents. 3. The defendant is the appellant and the plaintiffs are the respondents. 4. For the sake of convenience, the parties will be referred to as “plaintiffs” and “defendants”. 5. The brief facts relevant for considering the second appeal may be stated as follows: The suit was filed by the deceased, first plaintiff for permanent injunction in respect of item No.1 of the plaint schedule property, which is marked as “ABCD”, attached to the plaint. According to the plaintiff, the first plaintiff purchased the schedule mentioned property from K.Venkata Subbaiah son of Ramachandra Rao under registered sale deed, which is marked as Ex.A-1. The defendant is residing in a house bearing door No.8/372, which is situated to the east of the suit premises. The plaint schedule property is a lane (sandhu). The defendant has been trying to encroach upon the lane with an intention to demolish the wall and made some constructions there. 6. The claim of the plaintiffs was opposed by the defendant in his written statement contending that the boundaries of item No.1 of the plaint schedule are not correct, the measurements in the sale deed dated 24-03-1955 are not correct, and the northern boundary is shown in incorrectly. It is the version of the defendant that there is “PEERLA MAKHAN”, situated abutting north of the premises bearing door No.8/374 of Thyagaraja Street of Madanapalle town. It has been further contended that the vendor of the plaintiff mortgaged the property comprised in the premises bearing door No.8/374 of Thyagaraja Street, Madanapalle town in favour of Bysani Narayanaswamy Setty under a registered sale deed dated 24-07- 1954 (document No.2058/54). According to the defendant, the boundaries in the mortgage deed are at variance from the boundaries mentioned in the plaint schedule and as well as Ex.A-1 sale deed, dated 24-03-1955. According to the defendant, the defendant is the absolute owner of the plaint schedule property and the suit has been filed by the plaintiff only to harass the defendant. 6. Before the learned trial Court, on behalf of the plaintiffs, the second plaintiff was examined as PW-1 and Exs.A-1 to A6 were marked and on behalf of defendant, DW-1 was examined and Exs.B- 1 to B-3 were marked. 7. The learned trial Court after considering the entire evidence on record came to a conclusion that since the property was not properly described in the schedule by the plaintiff and also in view of the fact that the suit was filed for injunction simplicitor and for declaration of title and accordingly dismissed the suit. 8. The learned first appellate Court on re-appreciation of evidence recorded the following finding: The plaintiff filed the suit for mere injunction in respect of item No.1 of the plaint schedule. Though item No.2 is also mentioned in the plaint. The plaint schedule is nothing but a lane (sandu). The registered sale deed under which the first plaintiff purchased the property is marked as Ex.A-1 and the sale deed of the plaintiff’s vendor is marked as Ex.A-2. 9. It was argued on behalf of the defendant that because the learned trial Court as well as the learned first appellate Court found that as per Ex.B-1 registered notice dated 28-06-1954.,Exs.B-2 and B-3 the registered sale deed dated 21-08-1990 and Municipal approved plan with orders, the plaintiff’s vendor is Sri P.Narayanaswamy Setty and schedule land covers only item No.2. The second plaintiff who was examined as PW-1 had spoken to about the possession and enjoyment over the schedule mentioned property, which is marked as “ABCD”. In proof of his possession he filed Exs.A-3 and A-4 and Ex.A-6 certified copy of partition deed dated 22-1-1972 executed between the defendant and his brothers. The learned first appellate Court further observed that it is evident that according to Ex.A6 the western side portion of the defendant is shown as “ABCD” portion of the plaint plan. Therefore, the learned first appellate Court relied on the recitals of the partition deed of the defendant and his brothers, which is marked as Ex.A-6 which supports the version of the plaintiff. The learned first appellate court took into consideration the admission of DW-1 in his cross- examination, which is as follows: “There is a sandu dova between our house and Peerla Makhan. It is to the west of our house and to the east of Peerla Makhan. It is in possession of plaintiffs. There is a small door way to this sandhu dbova from the house of plaintiffs on the northern side disputed wall is in between our house and the said sandhu dova”. 10. Based on the above admission, the first appellate Court had categorically held that the admission itself reveals that the plaintiffs are in possession of the disputed “ABCD” lane and the said admission is contrary to the contentions in the written statement. The learned first appellate court also took into consideration the report of the Advocate-Commissioner that “ABCDEF” marked portion of the rough plan attached to the report belongs to the plaintiffs while “BGHIJC” belongs to the defendant. That the first appellate Court on a careful examination of the entire evidence on record held that the trial Court committed error by taking into consideration item Nos. 1 and 2 together whereas the suit filed by the plaintiff is only in respect of item No.1, which is a lane. The learned trial Court also by examining the documents clearly gave finding that the property which was mortgaged under Ex.A-3 by the plaintiff’s vendor is only item No.2 and not item No.1. The learned first appellate court further clarified that since item No.1 is only a small lane (sandu) it cannot be presumed that the defendant’s vendor had mortgaged the said property under registered mortgage deed. 11. Holding as such, the first appellate court reversed the findings of the trial Court. The findings of fact recorded by the first appellate Court are based on evidence and sound reasoning. They are final in so far as they relate to evidence relating to the facts. This Court can only interfere with such finding, if they are perverse or contrary to the evidence on record or if they are not based on evidence. Even if this Court wants to take a different view it cannot upset the finding of fact recorded by the first appellate Court. Moreover, no substantial question of law arises for consideration in this second appeal. 12. The second appeal, is therefore, fails and the same is dismissed, confirming the judgment and decree passed by the learned first appellate Court in A.S.No. 3 of 1998. However, there shall be no order as to costs. 29-03-2011. ________________________ I s L JUSTICE R. KANTHA RAO THE HONOURABLE SRI JUSTICE R. KANTHA RAO SECOND APPEAL No. 7 3 3 OF 1999 CIRCULATION No. Date:29-03-2011 Court Master: I s L Computer No.43