THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Second Appeal No.1020 of 2010 Date:14th March, 2011 Between: Sadasivudu …Appellant/Defendant and M.Kasinath …Respondent/Plaintiff *** THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Second Appeal No.1020 of 2010 JUDGMENT: This Second Appeal is directed against the judgment and decree, dated 12.07.2010, passed in A.S.No.34 of 2007 on the file of the Family Court-cum-Additional District Court, Mahabubnagar, whereby and whereunder the learned Additional District Judge dismissed the appeal, confirming the judgment and decree, dated 20.12.2006, passed in O.S.No.190 of 2003 on the file of the Junior Civil Judge, Mahabubnagar. 2. a) The respondent is the plaintiff and the appellant is the defendant in O.S.No.190 of 2003 on the file of the Junior Civil Judge, Mahabubnagar. The plaintiff filed the suit for declaration that he is the owner of the suit schedule plot admeasuring 136.88 sq. yards out of Plot No.26 comprising Survey No.211/1 situated at Yedira Village and also for recovery of possession apart from various other reliefs. According to the plaintiff he is the owner of plot No.26 admeasuring 200 sq. yards in Survey No.211/1 having purchased the same on 26.09.2001 under a registered sale deed, which has been exhibited as Ex.A1. The defendant encroached the plot to an extent of 136.88 sq. yards and this fact he came to know when the neighbouring owner of the plot No.27 raised objection with regard to the extent of the plot. On measuring, it is found out that the defendant encroached the plot of the plaintiff to an extent of 136.88 sq yards. b) The defendant filed written statement resisting the claim of the plaintiff. He took the plea that the suit land is part and parcel of the Plot No.82 and it is not part and parcel of Plot No.26. c) The trial Court framed the following issues for trial: 1) Whether an extent of 96 sq. yards in Plot No.27 was encroached by the house of the plaintiff? 2) Whether the suit land of 136.88 sq.yards is part of plot No.26 of the plaintiff? 3) Whether the plaintiff is entitled for declaration that he is absolute owner of the suit schedule plot? 4) Whether the plaintiff is entitled for recovery of possession of the suit plot by removing the existing construction by way of mandatory injunction? 5) To hat relief? d) On behalf of the plaintiff, he got himself examined as PW.1, besides examining the owner of Plot No.27, as PW.2, and marked 8 documents as Exs.A1 to A8. On behalf of the defendant, he got himself examined as DW.1 and marked 5 documents as Exs.B1 to B5. e) The trial Court, on considering the material brought on record and on hearing the counsel appearing for the parties, came to the conclusion that the suit schedule plot is part and parcel of plot No.26 and therefore, decreed the suit, by judgment dated 20.12.2006. The defendant filed A.S.No.34 of 2007 on the file of the Family Court-cum- Additional District Court, Mahabubnagar, assailing the judgment and decree, dated 20.12.2006 passed in O.S.No.190 of 2003. f) The learned Additional District Judge, on re-appreciation of the evidence brought on record and on hearing the counsel appearing for the parties, did not find any valid ground to interfere with the findings recorded by the trial Court and thereby proceeded to dismiss the appeal, by judgment, dated 12.07.2010. Hence, this Second Appeal. 3. Heard learned counsel appearing for the appellant/defendant and perused the judgment of the trial Court as well as the judgment of the lower appellate Court. 4. Learned counsel appearing for the appellant/defendant submits that the suit schedule land is part and parcel of the plot No.82 and that the trial Court as well as the lower appellate Court failed to appreciate the evidence brought on record in right perspective and thereby proceed to decree the suit of the respondent/plaintiff. A further submission has been made that the appellant/defendant made an effort to get the suit schedule land measured by way of appointment of an advocate commissioner, but the trial Court as well as the lower appellate Court refused to consider the said applications. 5. The only issue that calls for adjudication in this Second Appeal is, whether the suit schedule land forms part and parcel of Plot No.26 or Plot No.82? 6. Ex.A4 is the lay out plan. As per Ex.A4 lay out plan, the suit schedule land forms part and parcel of Plot No.26. This fact has been admitted by DW.1 in the cross-examination. The lower appellate Court referred the cross-examination of DW.1 in para.25 of the judgment impugned in the appeal, which reads as hereunder: “25. DW.1 in his cross-examination stated that in the sale deed executed by Venktaiah in favour of Mohd. Abdul Khader the western boundary of plot No.26 is shown as 30’ road. DW.1 admitted that he signed sale deed Ex.A.1 in favour of Plaintiff as witness No.2. In Ex.A.1 the sale deed the survey No. of the land was shown as 211/1. D.W.1 admitted that he also signed map enclosed Ex.A1 as attestor. D.W.1 admitted that in Ex.A1 western side boundary of the land covered by it is shown as 30’ road. D.W.1 also admitted that Venkataiah sold said land as per lay out. D.W.1 admitted that as per Ex.A4 lay out and as per said lay out plots were made and lay out was approved on 15-06-1989. D.W.1 admitted that as per Ex.A4 there is no plot No.82. D.W.1 denied suggestion that after filing of the suit by the plaintiff on 23.05.2003 he got created Ex.B.2 sale deed and also created Ex.B.4. D.W.1 denied suggestion that there is no plot No.82. D.W.1 denied suggestion that he created the documents to encroach plot No.26 and road.” The evidence brought on record clearly established that the respondent/plaintiff purchased Plot No.26. Western boundary of Plot No.26 is 30 feet road. The suit schedule property forms part and parcel of Plot No.26. Though the appellant/defendant pleaded that the suit schedule property is part and parcel of the plot No.82, he failed to establish the same. Indeed Ex.A4 lay out plan indicates that Plot No.26 admeasuring 200 sq. yards. There is no plot No.82 as per Ex.A4 lay out plan. The trial Court as well as the lower appellate Court appreciated the evidence brought on record in right perspective and rejected the contention of the appellant/defendant that the suit schedule property is part and parcel of the plot No.82. There is no substantial question of law involved in this Second Appeal warranting admission. 7. Accordingly, the Second Appeal is dismissed at the admission stage. No costs. ______________________ B.SESHASAYANA REDDY, J. Date:14th March, 2011. cs THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Second Appeal No.1020 of 2010 Date:14th March, 2011