THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.366 of 2011 September 8, 2011 Between: Challapalli Satyanarayana, S/o.late Bhavannarayana ... Appellant And Challapalli Subash, S/o.late Bhavannarayana ...Respondent THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.366 of 2011 JUDGMENT: The plaintiff’s appeal is against the reversing judgment dated 21.12.2010 in A.S.No.30 of 2010 on the file of the Court of the III Additional Senior Civil Judge, Kakinada. By the said judgment, the decree of mandatory injunction directing the respondent (defendant) to remove all constructions like steps made by him in the three (3) feet width pathway, within three months, was reversed and the appellant’s (plaintiff’s) suit being O.S.No.1193 of 2004 was dismissed. The plaintiff and the appellant are brothers. Items 1 and 2 of the plaint schedule properties originally belonged to one Ambati Suramma, grandmother of the parties to the suit. Under registered partition deed dated 28.6.1984, plaintiff got ABCDE portion and defendant got CDEF portion. In the plaint plan, it was alleged that the defendant constructed staircase in DEE1J to have comfortable passage to his upstairs; fixed a wooden door on H H1 point as shown in the plaint plan which is causing inconvenience to the plaintiff. He, therefore, sought for mandatory injunction. The defendant opposed the suit contending that there is a convenient passage of three (3) feet width and there is no inconvenience to the plaintiff. The brothers lead evidence. The plaintiff as P.W.1 and the defendant as D.W.1 deposed and Exs.A1 and A2 were marked. The trial Court recorded finding relying on the evidence of P.W.1 that the plaintiff was left without any passage to have any ingress and egress. The appellate Court reversed the finding. The Counsel for the appellant/plaintiff would contend that three (3) feet width common passage as shown in Ex.A1 partition deed was appropriated by the defendant denying ingress and egress to the plaintiff and, therefore, the judgment of the appellate Court is erroneous. According to him, house of the maternal aunt Suryavathi was far away and merely because there is a passage in her property, the same cannot improbablise the case of the defendant. The question raised in the second appeal is one of fact. Whether the common passage was obstructed by the defendant by constructing staircase, as alleged, is certainly a question of fact. Dealing with this fact, the appellate Court observed as under. In the cross-examination, P.W.1 categorically admits a suggestion to mean that there has been pathway towards the Eastern side abutting ABCD portion giving access to their maternal aunt Smt.Suryavathi. Unfortunately, P.W.1 did not make a mention about the existence of such pathway into the house of Smt.Suryavathi throughout his plaint plan. Interestingly, he has not offered any reasons as to why he has withheld the existence of pathway through his portion into the house of Smt.Suryavathi. It is undoubtedly suppression of crucial fact and as such the plaint plan is incorrect. … … It is significant to note that a suggestion is made in the cross- examination by asking P.W.1 to disclose the fact that the said pathway gives accessibility into his Northern side house and the said suggestion is denied. Therefore, it is clear that D.W.1 suggests the close accessibility between the house of P.W.1 as well their junior maternal aunt Suryavathi through the admitted pathway. Interestingly no attempt is made by P.W.1 to rebut the evidence of D.W.1 taking summons to their maternal aunt as a witness for the reasons best known to him. The findings of the appellate Court based on the admissions made by the P.W.1 and, therefore, no interference is called for. The second appeal, for the above reasons, is dismissed. _______________ September 8, 2011 (V.V.S.RAO, J) YS