IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE ELEVENTH DAY OF FEBRUARY TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.55 of 2000 BETWEEN Yarlagadda Veera Venkata Satyanarayana. …APPELLANT AND Yarlagadda Sarveswararao and six others. …RESPONDENTS Counsel for the Appellant: MR. P. GIRISH KUMAR Counsel for the Respondents: MR. M. KRISHNA MOHAN RAO The Court made the following: - JUDGMENT: The appellant’s suit O.S.No.13 of 1982 for declaration of easementary right over the suit passage and consequential permanent injunction was decreed by the Principal District Munsif, Peddapuram by judgment and decree dated 15.07.1991. The learned Senior Civil Judge, Peddapuram, had reversed the said decree in A.S.No.21 of 1991 by judgment and decree dated 31.08.1999. Hence, the plaintiff is in second appeal before this Court. 2. Heard the learned counsel appearing on either side. 3. I have carefully perused the judgments of the trial Court and the lower appellate Court as well as the plaint averments. The pleadings of the plaintiff show that the said passage is claimed under easementary right on the basis of customary use from times immemorial as well as on the ground of an easement of necessity vide paragraphs 3 and 4 of the plaint. The prescriptive right is also claimed in the alternative and on the basis of evidence of P.Ws.2 to 4, who supported the plaintiff coupled with the no objection memo filed by the third defendant, the trial Court gave findings in favour of the plaintiff including the finding that the plaintiff has established easement of necessity under Section 13 of the Easements Act. It had also found that the plaintiff has established the easement by prescription but it negatived the customary right, as claimed by the plaintiff. 4. On appeal against the said decree, the lower appellate Court has framed point for consideration as to whether the plaintiff acquired easementary right of prescription to pass through the lands of the defendants 1 to 3 now in the hands of the eighth defendant. The lower appellate Court came to consider that the plaintiff has not satisfied the requirement of Section 15 of the Easements Act, as the period of 25 years is not fulfilled by the plaintiff keeping in view the date of suit. It has, further, negatived the said claim of the plaintiff on the ground that there are no pleadings in the plaint, as observed by the lower appellate Court in para 20 of its judgment. Further, the lower appellate Court has disbelieved the evidence of P.Ws.2 to 4 on the ground that though they are also using the disputed passage, they did not join the plaintiff in filing the suit and now only figuring as witnesses, so their case cannot be accepted. The lower appellate Court accordingly allowed the appeal setting aside the decree. 5. In this appeal one of the substantial questions of law formulated for consideration is as under: “Whether the appellate Court can set aside the decree and dismiss the suit without disturbing the finding of the lower court (in favour of the plaintiff) basing on which the suit was decreed?” 6. It would be noticed from the narration above that the decree of the trial Court is based on twin findings: (1) Plaintiff satisfied the easement of prescription and (2) Plaintiff established easement of necessity. The impugned judgment of the lower appellate Court, however, answers only the first point against the plaintiff and there is neither any discussion nor any point framed for consideration with regard to the second aspect. The finding of the trial Court in favour of the plaintiff on easement of necessity, therefore, remained unconsidered by the lower appellate Court and neither there is a point for consideration nor there is any independent discussion and finding thereon. As a final Court of fact, it was incumbent on the lower appellate Court to deal with the finding of the trial Court on the basis whereof the decree was passed in favour of the plaintiff, particularly, when the lower appellate Court was reversing the said decree. 7. The judgment of the lower appellate Court also suffers from two other errors, which need to be mentioned. Firstly, it has rejected the evidence of P.Ws.2 to 4 on the ground that they have not joined the plaintiff in filing the suit. The lower appellate Court ought to appreciate that the said witnesses were examined by the plaintiff to support his case and they stood by their evidence even on the cross-examination. Whether they have joined the plaintiff or not is, therefore, hardly relevant for appreciation of their evidence. Secondly, the lower appellate Court proceeds to think that there is no pleading in the plaint with regard to prescription, which is factually incorrect, as the pleading is very much found in the plaint with respect to all the three aspects i.e. prescriptive right, customary right and easement of necessity. Whether the plaintiff is successful in establishing all or either of them is a matter for appreciation but the plaintiff cannot be non-suited on the erroneous impression that there is no pleading. 8. In the circumstances, therefore, there is no option but to set aside the judgment of the lower appellate Court and remit the appeal for fresh consideration to the learned Senior Civil Judge, Peddapuram. Since the appeal arises out of a suit of 1982, the lower appellate Court is required to decide the appeal afresh, after giving opportunity to both sides, on or before 30.04.2011. The second appeal is accordingly allowed. The costs of this appeal shall abide the result of the first appeal remitted hereinabove. _____________________ VILAS V. AFZULPURKAR, J February 11, 2011 DSK