IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE TWELTH DAY OF JULY TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Second Appeal No.1024 of 2007 Between: V. Satyanarayana ..Appellant AND V. Venkata Swamy and 3 others .. Respondents JUDGMENT: The defendant in O.S.No.444 of 2002 on the file of the Court of I Additional Junior Civil Judge, Machilipatnam, unsuccessful before the trial Court and the first Appellate Court, approached this Court with this second appeal. The suit was filed by 1st and 2nd respondents herein (respondents 3 and 4 herein are brought on record as legal representatives of the deceased 2nd plaintiff) against the appellant herein for a declaration concerning a right of pathway and a consequential mandatory injunction, claiming that the neighbouring properties originally belonged to a single owner, which were later divided into plots and a right of pathway exists between the properties for ingress and egress of the plaintiffs to the Municipal road, which has been in use by the plaintiffs since prior to the purchase by the defendant. While the parties constructed their respective houses, the appellant, while constructing a compound wall for his house, laid a foundation encroaching into the pathway for which respondents 1 and 2 herein objected. The appellant obtained an ex parte interim injunction against respondents 1 and 2 by filing a suit for permanent injunction and though the petition for interim injunction was dismissed on merits, the appellant obtained ex parte injunction orders again in C.M.A.No.2 of 2002 under the guise of which he completed the construction of compound wall encroaching into the joint pathway. Therefore, respondents 1 and 2 were compelled to claim their rights obviously concerning the joint pathway of width of 1 ½ yards and length of 14.5 yards. The appellant resisted the claim contending that he constructed a compound wall only within the four corners of his site without encroaching into any pathway. He claimed that no pathway exists within his property and hence, desired the dismissal of the suit. The trial Court framed issues on the entitlement of the respondents 1 and 2 for a declaration and a mandatory injunction and examined PWs.1 to 3 and DW.1 and Exs.A.1 to A.5 were also marked during trial. The trial Court rendered its judgment on 19-07-2004 referring to the rival contentions and evidence and further noted that there was no dispute about the boundaries recited in Exs.A.1 to A.4 and the unitary ownership prior to the purchases of different plots by different parties was also noted to be not in dispute, apart from the recitals about an existing joint pathway in Exs.A.1 to A.4 to the east of the plots. The trial Court also noted that the independent report and plan of an Advocate Commissioner appointed in the suit perfectly corroborated the contents of the plaint and the plaint plan. The trial Court further noted that the very fact that there was no pathway as described in the documents from the Municipal road to the site of respondents 1 and 2 at the time of visit of the learned Advocate Commissioner belies the contentions of the appellant about the absence of any encroachment into the joint pathway. The trial Court also concluded that the appellant, who himself sold the site to the 1st respondent under Ex.A.1, cannot disown the recitals about the joint pathway in the documents and in fact it is the duty of the appellant to protect the rights of the respondents 1 and 2 in the joint pathway. The oral evidence of PWs.1 to 3 was found to be corroborating the claims of respondents 1 and 2 and the cross- examination of the appellant as DW.1 was itself noted as showing the absence of any other pathway for respondents 1 and 2 to reach the Municipal road from their house. The trial Court consequently concluded that respondents 1 and 2 are entitled to the declaration and mandatory injunction and that the compound wall is liable to be demolished and the appellant cannot construct any compound wall on the pathway of 1 ½ square yards width and 14 ½ square yards length. The trial Court granted three months to the appellant for compliance. In A.S.No.108 of 2004 against the said judgment and decree, the Special Sessions Judge-cum-X Additional District Judge, Machilipatnam, in his judgment dated 14-08-2007 concurred with the trial Court in all aspects. After referring to the background for the appeal and framing the necessary points for consideration, the first Appellate Court also came to the conclusion that the appellant was not disputing conveying 109 square yards to PW.1 under Ex.A.1, while earlier purchasing Ac.0.10 cents under Ex.A.2. The appellant himself was noted to have given the right of pathway to the 1st respondent, which is the only pathway for respondents 1 and 2 for ingress and egress to reach Municipal road. The first Appellate Court accepted the evidence of PWs.1 to 3 and noted the admission of DW.1 about creating the right under Ex.A.1 to the 1st respondent in the joint passage towards east. Extensively referring to the contents of the documents, the first Appellate Court concluded that the joint pathway is clinchingly and conclusively proved, unrebutted by the interested claims of the appellant as DW.1. The corroboration afforded by the Advocate Commissioner is also noted and the constructions made by the appellant were noted to be illegal. The dismissal of the appeal without costs by the first Appellate Court made the appellant again challenge the findings herein on the ground that the non-examination of the vendor of the appellant, who was the owner of the entire land including the lands in the suit locality, could have been noticed and the appellant contended that substantial questions of law arise about the findings recorded in the absence of evidence and the misinterpretation of the documents. The learned Judge, while admitting the second appeal on 31-08-2007 framed the following substantial question of law. Whether the judgments and decrees of the Courts below are vitiated for a finding in the absence of evidence on record? Sri Sai Gangadhar Chamarthy, learned counsel for the appellant and Sri S. Ramachandra Prasad, learned counsel for the respondents are heard. The only point for consideration is the subject of the question of law framed while admitting the appeal. Admittedly, all the properties in the locality originally belonged to a single owner and became the subject of different transactions after they were made into house plots. If the non- examination of that original owner were to be construed as an adverse circumstance, it has to be construed as equally adverse to both the parties as the question of burden of proof is of no importance once the evidence of both parties is placed before the Court unless their evidence is equally balanced. When the evidence on record is overwhelmingly in favour of respondents 1 and 2, the non-examination of original owner by respondents 1 and 2 could not have tilted the scales in favour of the appellant and there is no reason as to why the appellant did not take steps to examine the original owner. The findings of both the Courts below on facts were primarily influenced by the fact that it is the appellant himself, who sold 109 square yards to the 1st respondent under Ex.A.1 registered sale deed under which he specifically conveyed the right to the 1st respondent in the suit joint pathway. If the appellant sold the property for valuable consideration to the 1st respondent, who is the bona fide purchaser and covenanted to convey an unquestioned right in a joint pathway for ingress and egress to the Municipal road, he himself cannot act contrary to the stipulations in the sale deed. Not only such sale by the appellant himself to the 1st respondent himself, but also the independent findings of an Advocate Commissioner appointed in the suit were found by both the Courts below to be perfectly tallying with the claims of respondents 1 and 2. That apart, the consistent description of the existence of joint pathway in Exs.A.1 to A.4 sale deeds between 1977 and 1996 can never be considered to have been wrongly manipulated with a view to make a false claim in this suit much later in 2002 nor can the respondents 1 and 2 be non- suited for the specific description of joint pathway in Exs.A.1 to A.4 by the appellant himself. While the compound wall in question was found by the Advocate Commissioner to be encroaching upon such a joint pathway, the trial and the first Appellate Courts, therefore, cannot be considered to have based their findings on no evidence on record. The concurrent findings of fact do not leave any substantial question of law to be determined in the second appeal and the appellant has to fail before this Court also. Learned counsel for the appellant submitted at this stage that the appellant may be granted a reasonable time to comply with the decree for mandatory injunction. Grant of two months time from today will be reasonable and sufficient for the purpose. In the result, the Second Appeal is dismissed without costs. But, the appellant is granted two months time from today to comply with the decree for mandatory injunction. _____________________ G. BHAVANI PRASAD, J Date: 12-07-2010 Ksn