IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD TUESDAY THE TWENTY SECOND DAY OF MARCH TWO THOUSAND AND ELEVEN PRESENT THE HON’BLE SRI JUSTICE R. KANTHA RAO SECOND APPEAL NO. 999 OF 1999 Between: Medam Raghunath … Appellant-Plaintiff V/s. S.Jaffar Miah (died) Per LRs … Respondents-Defendants (R-1, R-4 to R-7 are not (R-1 died and R-4 to R-7 set necessary parties in this appeal) exparte in the courts below) Counsel for the Appellant : Sri B. Narsimha Sarma Counsel for the Respondents: Sri K.Somakonda Reddy The court made the following : (Judgment follows next page) THE HONOURABLE SRI JUSTICE R. KANTHA RAO SECOND APPEAL No. 999 OF 1999 J U D G M E N T : This second appeal is filed against the judgment and decree dated 16-8-1999 passed in AS.No.111 of 1996 by the III-Additional District Judge, Kurnool, confirming the judgment and decree dated 23-9-1996 passed in OS.No.22 of 1991 by the Subordinate Judge, Nandikotkur, Kurnool district. 2. The unsuccessful plaintiff throughout is the appellant. He filed the suit for declaration of title in respect of the premises shown as D C-3, C-2, C-1 FE in the plaint schedule and for restraining the defendants from trespassing or in any way making openings or apertures in C2, C1, FE’ wall shown in the plaint schedule and also for mandatory injunction to close the newly opened “V-1 and V-2” ventilators mentioned in the plaint schedule. 3. I have heard Sri B. Narsimha Sarma for the appellant and Sri B.Somakonda Reddy for the respondents. 4. For the sake of convenience the parties will be referred to as “plaintiff” and “defendants”. 5. The facts relevant for consideration in the second appeal may be stated as follows: The plaintiff, his father and brothers sold the house lying to the north of the plaintiff’s building under a registered sale deed dated 14- 11-1963. The said sale deed is marked as Ex.A-2. The plaintiff’s building is bearing Door No. 12/140, whereas the defendants building is bearing No. 12/139 (old No.9/43). The plaintiff became entitled to be owner of his house under a partition dated 16-7-1966 and the said partition deed is marked as Ex.A-3. The contention of the plaintiff is that in fact the measurements in Ex.A-2 were wrongly noted as 30 feet from north to south but actually it was only 20 feet and he subsequently came to know about the same. The first defendant is not a party to Ex.A-3 partition deed executed in the year 1966 and therefore the recitals are not binding on him and the plaintiff is precluded from taking such a plea and therefore the suit filed by the plaintiff is liable to be dismissed. 6. Basing on the evidence adduced by both parties, the learned trial Court as well as the appellate Court have recorded concurrent finding that the plaintiff is estopped from giving oral evidence contrary to the recitals in Ex.A-2 sale deed executed by them. Both the courts below have also held that the version of the plaintiff that he came to know that the measurements of Ex.A-2 sale deed in the year 1988 i.e., after twenty years after execution of Ex.A-2 sale deed cannot be believed and therefore, he cannot adduce any evidence in proof of the fact that the actual extent is 20 feet, north to south but not 30 feet. Admittedly, the northern boundary of the first defendant’s house is shown in both the documents as “house of the plaintiff”. In between there is no vacant site. If that is so, even if the case of the plaintiff is tested in the light of the proposition that the boundaries will prevail over the extent, since there is no discrepancy between the boundaries of the entire site and in between the boundaries mentioned in the defendant’s sale deed and it must belong to him and it is not open for the plaintiff to contend that he has some lesser extent. There is no dispute about the fact that all the houses are different and one house was sold to the first defendant. Both the courts below therefore have rightly recorded the concurrent findings to the effect that being one of the executants of sale deed the plaintiff is stopped from giving evidence contrary to any of the recitals in Ex.A-2 sale deed. Further the first defendant is not a party to the recitals mentioned therein and they are not binding on him. 7. Thus, the concurrent findings recorded by both the courts below are in conformity with the evidence on record and based on cogent reasoning. There is no substantial question of law arises for consideration in the second appeal and this court will not interfere with the findings of fact which have been concurrently recorded and became final. 8. The second appeal, therefore, fails and the same is dismissed. No costs. _________________________ JUSTICE R. KANTHA RAO 22-03-2011 I s L THE HONOURABLE SRI JUSTICE R. KANTHA RAO SECOND APPEAL No. 999 OF 1999 Circulation No. 2 8 1 Date:22-03-2011 Court Master: I s L Computer No. 43