IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TWENTY SECOND DAY OF JULY TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.603 of 1999 BETWEEN Tenneti Narayanaswamy. …APPELLANT AND Tenneti Narasimhulu Naidu and others. …RESPONDENTS Counsel for the Appellant: MR. S.V. MUNI REDDY Counsel for the Respondents: MR. N. VENKAT RAYUDU The Court made the following: - JUDGMENT: This is an appeal by the plaintiff, whose suit, being O.S.No.62 of 1988, for declaration and recovery of possession was partly decreed by the trial Court and affirmed by the lower appellate Court. Since there was no first appeal by the defendants, the subject matter of this second appeal is only with respect to the dismissal of the part of the suit claim to the extent of denying the relief of declaration to the extent of amended plaint schedule viz. brick wall on the eastern side by encroaching 5’ to 6’ together with super structures made by the defendants over the wall. 2. The parties herein are referred to as they are arrayed in the suit. 3. The gist of the pleadings and the evidence is as follows: (a) Plaintiff’s father purchased the property on the western side of the defendants in two separate bits i.e. registered sale deed dated 07.03.1941 – Ex.A1 and registered Will dated 15.07.1948 – Ex.B1. The defendants are admitted owners of the eastern side of the said property and the plaintiff claims that apart from their thatched house, the vacant site towards east was being used by the plaintiff for storing hay and debris. It is alleged that after the death of the plaintiff’s father, plaintiff and his elder brother, defendant No.5, partitioned the property and that the suit schedule property fell to the share of the plaintiff. Alleging that the defendants have encroached to the extent of 5’ to 6’ in the open land towards west on the plaintiff’s property and raised super structures, the above suit for declaration and mandatory injunction is filed. (b) The defendants, on the contrary, denied any encroachment and they set up the title on the basis of Ex.B1 – Will dated 15.07.1948 under which the plaintiff and defendant No.5 acquired the property, which shows the length and breadth from east to west and north to south and that the plaintiff’s property acquired under Ex.B1 as well as Ex.A1 sale deed dated 07.03.1941 is entirely to the west on defendants’ property and started from the site of Murari Nagamma, which is the further west of the defendants’ property. The defendants, therefore, denied that there is encroachment by them and they asserted that they are rightful owners and that the defendants have 23½ yards east to west and 49 yards north to south, the said property was settled by the first defendant in favour of defendants 2 and 3 under registered settlement deed dated 13.12.1987 and that the construction of the house was approved as per the loan sanctioned from SFC and was completed in April 1988 and that they made construction in their own site. (c) Based on the above pleadings the trial Court framed the following issues and additional issues: 1. Whether the plaintiff is entitled for permanent injunction in respect of plaint schedule properties? 2. Whether the 1st defendant is the owner of the written schedule mentioned properties? 3. Whether the plaintiff and predecessors in title were never in possession and enjoyment of the foundation property? 4. To what relief? Additional Issues framed on 07.11.1989: 5(i) Whether the plaintiff is not entitled for mandatory injunction? 6(ii) To what relief? The 1st additional issue is recasted as Whether the plaintiff is entitled for a mandatory injunction over the amended plaint property? Additional issues framed on 22.01.1994: 7(i) Whether the plaintiff has title to the suit property? 8(ii) Whether the defendants encroached upon the suit property, subsequently to the filing of the suit over the amended suit property? 9(iii) Whether the defendants are liable to deliver the encroached portion to the plaintiff? (d) The oral evidence of the parties is that the plaintiff examined himself as P.W.1 and marked Exs.A1 to A4 and the second defendant examined himself as D.W.1 and marked Exs.B1 and B2. In the trial Court, an Advocate Commissioner was appointed to visit the site on two occasions, who filed report Ex.C1 and Ex.C2 – plan in the first instance and report Ex.C3 and Ex.C4 – plan in the second instance. 4. On consideration of the aforesaid oral and documentary evidence, the trial Court answered the issues 2 and 3 and additional issues 7(i) and 8(ii) in favour of the plaintiff to the extent of the title to the property to the west of the defendants except the alleged encroached portion. In coming to the said conclusion, the trial Court relied upon the reports of the Advocate Commissioner to the extent it gave the measurements of the suite and by comparing the measurements of the site sold under Ex.A1 as well as the measurements of the site under Ex.B1 – Will. In order to establish that the defendants have no such property, as claimed by them, the plaintiff relied on Ex.A2 one of the sale deeds of the defendants and even accepting the same, the trial Court found that the plaintiff has failed to show that there is any encroachment by the defendants on the property of the plaintiff. The trial Court, therefore, gave the finding that the plaintiff is entitled to declaration of title for the property of 7 yards East to West and 40 yards North to South as is evident by the documents of the plaintiff but there is no evidence to establish the title of the plaintiff to the extent of the encroached site. Consequently, the decree to the extent of the amended schedule was denied. On appeal, being A.S.No.9 of 1994, the lower appellate Court concurred with the said findings of the trial Court. Hence, this second appeal. 5. Heard the learned counsel for the appellant and the learned counsel for the respondents. 6. This second appeal was admitted on 08.02.2000 on the substantial questions of law formulated under ground No.18 (a) and (c) of the grounds of appeal, which are as follows: 18(a). Whether the approach of the lower appellate Court is vitiated by non-framing of each issue or point for determination and recording specific findings? (b)… (c) Whether the judgment of the lower appellate court is in conformity to Order 41 Rule 31 of C.P.C? 7. Learned counsel for the appellant has vehemently contended that the lower appellate court failed in its duty as a final Court of fact and has not framed the proper point for consideration thereby the judgment of the lower appellate court is vitiated. He also submitted that the title of the plaintiff coupled with the Commissioner’s report ought to have been considered at least independently by the lower appellate Court but on account of the defective point for consideration framed by it, the conclusions are vitiated. He points out that the lower appellate court has merely reiterated the views of the trial Court as mentioned in para 11 of the judgment of the lower appellate Court. 8. I, however, find it difficult to accept the aforesaid contentions, as apart from expressing concurrence with the views of the trial Court, the lower appellate court has seen the reports of the Commissioner and the measurements noted by the Advocate Commissioner. The lower appellate court has independently considered the documents of the plaintiff viz. Ex.A1 and Ex. B1 and found that the width as per Ex.A1 is 7 yards East to West whereas 40 yards from North to South. This has been further compared with the measurements in Ex.A2 document of the defendants and came to the conclusion that the measurements given in Commissioner’s report are not in conformity with the title documents of the parties. Even the lower appellate court had appointed an Advocate Commissioner but rejected his report on the ground that the measurements are not tallying. Keeping all these circumstances in mind, the lower appellate Court came to the conclusion that the plaintiff is occupying the property a little more than the measurements as per his deed but does not establish that the defendants have encroached on the part of plaintiff’s property. Consequently, it had dismissed the appeal. 9. Firstly, while considering this matter it has to be remembered that the pure questions of fact, which have been urged by the learned counsel for the appellant, in the backdrop of findings of both the Courts below on these aspects, cannot be appreciated in the second appellate jurisdiction of this Court. Secondly, there is also no material to come to the conclusion that the findings of both the Courts below are perverse or otherwise vitiated. I am, therefore, unable to see any ground to interfere with the findings of the Courts below. The substantial question of law with regard to framing of point for consideration is concerned, the lower appellate Court, no doubt, has framed only one point for consideration but in substance it covers the entire controversy required to be dealt with by the lower appellate court and both the parties clearly understood the same and made detailed submissions. As mentioned above, the lower appellate court has not only limited itself to the findings of the trial Court but has examined and satisfied itself of the correctness thereof. The substantial questions of law, therefore, are answered against the appellant. The second appeal is accordingly dismissed. In the circumstances, there shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J July 22, 2011 DSK