HIGH COURT OF JUDICATURE OF ANDHRA PRADESH THE HONOURABLE SRI JUSTICE V.ESWARAIAH SECOND APPEAL No. 680 OF 2008 Friday, the Twenty Sixth Day of November, Two Thousand and Ten Between Sri Pampana Narayana Murthy Appellant AND Pampana Venkata Rao Respondent ORAL ORDER: Heard. Appellant is the defendant No.1, who suffered a decree in OS No. 803 of 2000 dated 16.8.2005 on the file of the learned Junior Civil Judge, Gajuwaka. The said suit was filed by the respondent herein for declaration that the suit schedule property measuring 20 Sq. yards on the eastern side, belongs to him and for possession thereof and for consequential relief of permanent injunction restraining the defendants from interfering with his peaceful possession and enjoyment of the same. The suit schedule premises is part and parcel of the land situated in Door No. 9-169, opposite to Mohini Theatre, Gajuwaka, Visakhapatnam, to an extent of 20 Sq. yards bounded by first defendant’s shop on east, main road on south, remaining land of the plaintiff on west and Seshu Mahal and Lakshmi Kanth Theatres wall on north. It is case of the plaintiff that plaintiff’s father purchased the landed property admeasuring 250 Sq. yards and constructed two shop rooms in the said property and later executed a registered Will dated 18.5.1983, and as per the Will, the plaint schedule property fell to the share of the plaintiff whereas the remaining 125 Sq. yards on the eastern side of the plaintiff’s property went to the first defendant. Thus, it is stated that though each of them have been succeeded to 125 Sq. yards from out of the total 250 Sq. yards and both of them are utilizing four square yards open space on the extreme eastern side of the first defendant for the purpose of common usage and commonly used staircase on the south east corner of his site, the first defendant developed an evil eye and has grabbed 21 Sq. yards of the plaintiff’s site, fixed up shutter for the staircase and locked it. It is his further case that the first defendant started construction on the first floor covering four feet open space on the eastern side of his property, thereupon, the plaintiff filed the suit OS No.68 of 1996 on the file of the IV Additional District Munsif, Visakhapatnam and the same was decreed. As the first defendant is proceeding with the construction and completed first floor on the land of the plaintiff, encroaching four feet common passage left out as per the understanding despite the decree in the said suit, the defendant proceeded with further construction, as such, he filed the suit for declaration. Written Statement was filed disputing the said allegation and stated that the plaintiff has got 20 feet wide road on the eastern side of the shop room to enter the rear side of his portion and got constructed two shop rooms facing the 20 feet wide road and to grab the property of the defendant, the plaintiff filed the suit with false allegation. It is stated that the plaintiff is not entitled for any relief and the defendant is the owner of the plaint schedule property. Based on the said pleadings, the trial court framed issues as to whether the plaintiff is entitled for declaration and permanent injunction, as prayed for. The plaintiff himself was examined as PW-1 and marked Exs. A-1 to A-3. Ex. A-1 is the certified copy of the Will, Ex.A-2 is the valuation certificate and Ex.A-3 is the sketch prepared by the licensed surveyor. Neither oral nor documentary evidence was adduced on behalf of the defendants. The plaintiff in his evidence deposed that he is the owner of the plaint schedule property and there is an understanding between the parties to utilize four feet open space on the eastern side of the first defendant for the purpose of common usage and common used staircase on the southern side. The first defendant grabbed 21 Sq. yards of the site and fixed up shutters for the staircase and locked it. The first defendant also started construction of the first floor covering four feet space on the eastern side of his property. The first defendant has locked the staircase and not allowing the plaintiff to use the same. Thus, it is the case of the plaintiff that the first defendant has made construction in the schedule property belonging to him and not allowing him to use the staircase. The plaintiff was cross examined in part on 14.6.2005 and the matter was adjourned to 22.7.2005 and though PW-1 was present the defendant’s counsel did not cross- examine him and, therefore, the court closed further cross- examination of the witness. The defendant did not file any application to reopen the matter and it was posted for arguments. Though written statement was filed and matter was contested, the learned counsel for the defendant did not address arguments and based on the material available on record, the trial court, on scrutiny of the oral evidence of PW-1 and Exs. A-1 to A-3, held that the plaintiff is entitled for declaration, as prayed for and decreed the suit by judgment dated 16.8.2005. As against the said judgment and decree of the trial court dated 16.8.2005, the first defendant filed appeal being AS No. 2 of 2006 on the file of the learned Senior Civil Judge, Gajuwaka and the learned Senior Civil Judge, by judgment dated 2.8.2006, on re-appreciation of both oral and documentary evidence, upheld the judgment and decree passed by the trial court. Learned counsel for the appellant submits that the trial court without affording sufficient opportunity to the defendant and to cross- examine the plaintiff, ought not to have decreed the suit based on the material available on record, inasmuch as it is not sufficient to hold that the defendant has encroached the property of the plaintiff. It is further submitted that the appellate court ought to have remanded the matter to the trial court and hence the appellate court has erred in confirming the judgment of the trial court without examining the evidence on record. The plaintiff established title to the suit schedule property by oral and documentary evidence and the sketch map prepared by the licensed surveyor under Ex.A-3. Therefore, it cannot be said that the plaintiff has not proved the averments of the plaint. The evidence adduce on behalf of the plaintiff was not at all rebutted. Admittedly, the defendant’s counsel failed to further cross- examine the plaintiff and the evidence was closed. That apart, no arguments were advanced on behalf of the defendant and, as such, there was no other go for the trial court to deliver judgment based on the evidence available on record. No steps have been taken to reopen the case and lead evidence on behalf of the defendants. Therefore, I am of the opinion that both the courts have rightly decreed the suit and no interference is called for. I do not find any question of law muchless substantial question of law in this second appeal warranting interference. Consequently, the second appeal fails and is accordingly dismissed. No order as to costs. ___________________ Justice V.Eswaraiah November 26, 2010 MAS