HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA SECOND APPEAL No. 247 OF 2009 DATED 3RD NOVEMBER, 2010 BETWEEN. Narra Srinivasa Rao and ors ….Appellants And Kota Rangamma ….Respondent. HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA SECOND APPEAL No. 247 OF 2009 ORDER: The appellants are the defendants. The Respondent/plaintiff instituted the suit in O.S.No. 540 of 2002 on the file of the Court of the learned IV Additional Junior Civil Judge, Ongole, seeking the relief of declaration that the she has got title to the ‘‘MN’’ marked passage as shown in the plaint plan and also for the relief of permanent injunction to restrain the defendants and their men from entering into the same, causing obstruction and from interfering in any manner with her peaceful possession and enjoyment of ‘MN’ marked passage of the plaint plan for the ingress and egress from her BCDE of the plaint plan, Vamuladoddi to ‘XY’ marked public gondi bazaar. It was averred in the plaint filed along with the said suit that the building of the plaintiff has compound wall on all the four sides with two gateways in the southern compound wall into the public bazaar. On the south BCDE marked vacant side, there is vamula doddi where the plaintiff has been keeping her hayrick. ‘MN’ marked passage is the exclusive passage of the plaintiff for her ingress and egress from her BCDE vamidoddi into the eastern bazaar shown as ‘XY’ in the plaint plan. It was stated that one Gattineni Raghavulu, the grandfather of the plaintiff purchased the ‘A’ marked site with the tiles house therein, BCDE marked vamidoddi together with ‘MN’ marked passage from B. Subbamma under a registered sale deed dated 17.5.1930 and therefore the said G. Raghavulu had been in exclusive possession and enjoyment of the ‘‘MN’’ marked passage in his own right during his life time using the same for ingress and egress from his BCDE marked site into ‘XY’ marked eastern gondi bazaar. After the death of the said G.Raghavulu, his only daughter K.Anjamma, who was the mother of the plaintiff, enjoyed the ‘MN’ marked passage absolutely and after her death, the plaintiff being the only daughter of the said Anjamma, has been in possession and enjoyment of the ‘‘MN’’ marked passage with exclusive rights of ingress and egress from BCDE marked site into ‘XY’ marked gondi bazaar. It was further averred that defendants 3 to 5 have ‘XY’ marked Gondi bazaar on the east of their G.1 and G.2 marked houses. Defendants 1 and 2 have RST marked 12 feet width of galli bazaar to have ingress and egress from their G marked house to reach ‘‘XY’’ marked gondi bazaar on the east. Defendants 1 and 2 have got compound wall on the southern edge of their vacant site touching the northern boundary ‘BCDE’ marked vami doddi and also the northern boundary of ‘MN’ marked passage of the plaintiff upto the house of Manne Seetharamaiah as shown in the plaint plan. Due to political factions, the defendants conspired together to close ‘RST’ marked galli bazaar to the ‘G’ marked house of 1st defendant by making constructions across it and opened a gate-way into the plaintiff’s ‘MN’ marked passage unlawfully to use it to enter into the ‘‘XY’’ marked gondi bazaar in order to harass the plaintiff and her people who belong to rival faction to the defendants and opened a gate ‘V’ marked place in the southern compound wall of the 1st defendant about 2 years prior to the filing of the suit and have been highhandedly entering into the plaintiffs’ ‘MN’ marked passage to go into the ‘XY’ marked gondi bazaar for which they have no right. In spite of the objections of the plaintiffs, the defendants did not stop from entering into the plaintiff’s ‘MN’ marked passage. Hence, she instituted the suit for declaration of her right to ‘MN’ marked passage and for the relief of permanent injunctions, stated supra. It was further averred that after filing of the suit, the defendants during the night time on 7.10.2004 illegally and stealthy got dug earth in the middle of the plaintiff’s ‘MN’ marked passage longitudinally from ‘XY’ marked public gondi bazaar to a length of about 20 feet and fixed in it a drinking water pipe line along with a tap therewith. It was the case of the plaintiff that the defendants have no right to do so in her ‘MN’ marked passage and hence, the defendants are liable to remove the same. Before the trial Court, the defendants contested the suit. The first defendant filed written statement, which was adopted by defendants 2 to 5. Mainly, it was the stand of the defendants before the trial Court that the plaintiff has neither possession nor title to the ‘MN’ marked passage at any point of time much less as on the date of filing the suit; that ‘MN’ marked passage is the exclusive passage meant for the defendants; that the lease deed on which the plaintiff relies does not disclose the existence of passage on the Northern side of plaintiff’s house and site; and that the ‘MN’ marked passage is the exclusive passage of the defendants and they are exercising right of passage over the same ever since the purchase of their house and site under two registered sale deeds dated 6.4.1946 and 2.6.1946. The defendants have also filed additional written statement contending that the ‘MN’ marked passage is their exclusive passage and they have been exercising rights in the said passage as of right and the plaintiff has no right to question the laying of pipe line in their own passage. Based on the above pleadings, the trial Court framed the following issues and additional issues: 1. Whether the plaintiff is entitled for declaration that she has got the title to ‘MN’ marked passage as shown in the plaint plan ? 2. Whether the plaintiff is entitled for permanent injunction restraining the defendants from causing obstruction to her passage in ‘MN’ marked passage from her BCDE marked portion as shown in the plaint plan ? 3. To what relief ? ADDITIONAL ISSUES: 1. Whether the defendants dug up the earth in the middle of ‘MN’ marked passage longitudinally from ‘XY’ marked gondi bazaar to a length of 20 feet and fixed in it drinking water pipe line without any manner to do so? 2. Whether the plaintiff is entitled for the relief of mandatory injunction to remove the said pipeline? In order to prove the case, the plaintiff examined herself as P.W.1 and also P.Ws. 2 and 3 and got marked Exs.A.1 and A2. On behalf of the defendants, 3rd defendant was examined as D.W.1 and a resident of the suit village was examined as D.W.2 and got marked Exs.B.1 to B.3. The trial Court, on a careful consideration of the oral and documentary evidence available on record, came to the conclusion that the plaintiff is entitled for declaration that she has got the title to ‘MN’ marked passage as shown in the plaint plan and that in view of the evidence of P.Ws. 1 to 3 and Exs. A.1 and A.2, ‘MN’ marked passage is the exclusive passage of the plaintiff for enjoyment of ingress and egress from her BCDE marked property into the ‘XY’ marked galli bazaar. The trial Court further held that the exclusive right of the plaintiff over the ‘MN’ marked passage is established by overwhelming evidence produced on her behalf, and that the defendants have no manner of right to lay any pipeline over the ‘MN’ marked passage and therefore, they are liable to remove the said pipeline. Holding so, the trial Court decreed the suit with costs, granting permanent injunction as prayed for and also mandatory injunction to remove the pipe line laid in the ‘MN’ marked passage by the defendants within two months therefrom. Aggrieved by the judgment and decree of the trial Court, the defendants preferred appeal suit in A.S.No.131 of 2005 on the file of the learned I Additional District Judge, Ongole. The lower appellate Court, on reappraisal of the evidence, both oral and documentary, partly allowed the appeal, modifying the judgment and decree of the trial Court as under: (i) that the trial Court’s decree and judgment granting the mandatory injunction relief in favour of the plaintiff for removal of the pipe line laid through ‘MN’ passage by the defendants is upheld and confirmed directing the defendants to remove within one month from today and in case of their failure, the plaintiff can cause remove through Court of law and to recover the expenses from the defendants; (ii) that the trial Court’s decree and judgment granting the relief of declaration and permanent injunction holding that the plaintiff got exclusive right of passage through ‘MN’ site of plaint plan to ‘XY’ gondi bazaar from plaintiff BCDE vamudoddi and vice versa with no right of passage to defendants and in granting permanent injunction restraining the defendants from entering into or interfering with the plaintiff’s right is modified as follows: The plaintiff’s entitlement to the relief of declaration of the right of passage is subject to the defendants right of passage only through the plaint plan ‘MN’ passage to ‘XY’ gondi bazaar through ‘V’ gate from the defendants site and vice versa and the entitlement of permanent injunction relief by the plaintiff is only to the extent of restraining the defendants from causing obstruction to or interfering with the plaintiff’s right of passage subject to the defendants right of only ingress and egress; (iii) That the plaintiff is not entitled to the exclusive right but for subject to defendants right of passage for the relief of declaration and injunction; and (iv) That to that extent the trial Court’s decree and judgment is modified and partly allowed and rest of the claim of the defendants is dismissed with no costs. Dissatisfied with the judgment and decree of the lower appellate Court, the defendants preferred the present Second Appeal. When the Second Appeal came up for admission on 20.3.2009, this Court ordered notice before admission to the respondent/plaintiff and by order dated 7.8.2009 directed both the parties to maintain status quo with regard to removal of the pipe line laid in the ‘MN’ marked passage for a period of four weeks therefrom and the said order was extended subsequently till 29.06.2010. When the Second Appeal was listed on 18.06.2010, this Court framed the following substantial questions of law: (1) Whether in the facts and circumstances of the case, the Courts below can rely on Ex.A.1 registration extract of sale deed filed by the plaintiff to decide the dispute in controversy as there is no foundation in the pleadings for adducing secondary evidence as required under Section 65 of the Indian Evidence Act ? (2) Whether in the facts and circumstances of the case, the first appellate Court is right in granting right of passage to the respondent/plaintiff in ‘MN’ marked passage without there being any evidence on record regarding the exercise of such right either by the plaintiff or her predecessors in interest ? While admitting the Second Appeal, this Court, granted interim stay of execution of the decree in OS.No. 549 of 2002 only in so far as the grant of mandatory injunction for removal of the pipeline through ‘MN’ passage by the defendants. However, it is observed that there shall be no stay with regard to the other relief, that the right of the passage of the plaintiff would be subject to the right of passage of the defendants as well through the ‘MN’ passage to ‘XY’ through ‘V’ gate from the defendants site and vice versa and the defendants shall also not to cause obstruction or interfere with the plaintiff’s right of passage, and accordingly the status quo granted on 7.8.2009 and extended thereafter from time to time was modified as above. The learned Counsel for the appellants strenuously contends that as per Section 65 of the Indian Evidence Act, the Courts below cannot rely on Ex.A.1 registration extract of sale deed filed by the respondent/plaintiff to decide the dispute in controversy inasmuch as there was no foundation in the pleadings for adducing secondary evidence; that the lower appellate Court, without there being any evidence on record, granted exercising right of passage to the respondent/plaintiff or her predecessors in interest; and that the lower appellate Court ought not to have granted joint right in ‘MN’ marked passage, for the reason that there was no pleading to that effect and the Court cannot grant an unasked relief contrary to Order VII Rule 7 of CPC. Per contra it is the contention of the learned counsel for the respondent–plaintiff that the lower appellate court has properly appreciated the oral evidence in consonance with the documentary evidence and has rightly directed, as stated supra. He further contends that this being a finding of fact, this Court in exercise of its appellate powers under Sec.100 CPC shall not re- appreciate the evidence and since there is no question of law involved in the Second Appeal, much less substantial question, he prayed for dismissal of the second appeal. In the backdrop of these rival contentions, I shall now proceed to scrutinize the evidence, both oral and documentary, available on record, so as to examine as to whether the lower appellate court has appreciated the evidence in proper perspective or whether any interference is called for by this Court. Before adverting to the so called substantial questions of law, be it noted that the scope of this Court under Sec. 100 C.P.C. is quite narrow and limited. Therefore, within the ambit of the appellate jurisdiction of this court under Sec. 100 CPC, let us examine, whether the substantial questions of law raised need consideration and warrant any interference. Apropos the contention of the learned Counsel for the appellants that as there was no foundation for adducing secondary evidence in the pleadings, the Courts below could not have relied on the extracts of Ex.A.1 sale deed in the light of Section 65 of the Indian Evidence Act, it is to be noted that when the sale deed was taken on record and marked as an exhibit, the appellants did not raise any objection thereto. In the circumstances, it was not open to the appellants now at this stage to object the mode of proof. Had the objection been taken at the trial stage, the respondent/plaintiff could have met it by calling for the original sale deed which was on record in the collateral proceedings. As there was no objection from the side of the appellants, the extracts of the sale deed Ex.A.1 were taken on record and considered accordingly. In this regard, reference may be made to the judgment of the Apex Court in R.V.E. Venkatachala Gounder Vs. Arulmigu Visweswaraswami and V.P.Temple and another, reported in {(2003)8SCC 752}, wherein at para 20 it was succinctly held as follows: “20. The learned Counsel for the defendant-respondent has relied on Roman Catholic Mission Vs.State of Madras (AIR 1966 SC 1457) in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the above said case. However, the present one is a case which calls for the correct position of law being made precise. Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes (i) an objection that the document which is sought to be proved itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as ‘an exhibit’, an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons; firstly it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior Court”. The aforesaid view was reiterated by the Apex Court in the case of Smt. Dayamathi Bat Vs. K.M. Shaffi (AIR 2004 SC 4082). From the above decision, it is clear that Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered, and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. Therefore, as per the latter part of the above principle, the objection should be taken when the evidence is tendered, and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by their failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. Further, In the present case the objection was not that the certified copy of Ex.A.1 is itself inadmissible but that the mode of proof was irregular and insufficient. Objection as to the mode of proof falls within procedural law. Therefore, such objections could be waived. They have to be taken before the document is marked as an exhibit and taken on record. (see Order XIII R.3 of Code of Civil Procedure)Hence, the first contention of the learned Counsel for the appellants does not hold much water and therefore the same cannot be countenanced. Coming to the next contention of the learned Counsel for the appellants, it is to be noticed that there is no dispute from their side that the BCDE Vamuladoddi as indicated in the plaint plan is that of the plaintiff along with ‘A’ marked building with appurtenant site, but for ‘MN’ passage, they claimed it as their exclusive right. On the other hand, the claim of the plaintiff is that the defendants have no right for ‘MN’ passage and it is only her exclusive passage to pass through it. To support her contention, she filed Ex.A.1 title deed and nothing else. In the said title deed, it is stated that it includes the ‘MN’ passage also as that of the plaintiff. However, it is the claim of the appellants that it is no way included as a part of the title conveyed , but only for right of passage so far ‘MN’ passage is concerned. As contended by the plaintiff before the trial Court, there is no mention in Ex.A.1 sale deed about the ‘MN’ portion that it is a joint passage and anybody has got right of passage. In Ex A.1 recitals, northern boundary of sale deed property was not shown as that of the defendants or their ancestors any where. The plaintiff is silent as to when the defendants set up ‘V’ gate to enter into ‘MN’ passage from D.1’s house. However, the plaintiff has not claimed to remove the said ‘V’ gate. Even from the documentary evidence marked at Exs.B.1 to B.3, the defendants failed to show that ‘MN’ passage was claimed by them or their predecessors as of their exclusive right. Even there is no mention as to existing of ‘V’ gate in the Ex.B.3. The plaintiff in her cross examination deposed that the gate ‘V’ was set up by the defendants to enter into ‘MN’ passage to reach ‘XY’ public bazaar only two years prior to the filing of the suit. If that be so, if at all the defendants have no right of passage and for putting up V gate, the plaintiff being a prudent woman, could have issued a notice or raised an objection or immediately instituted a suit resisting the same, but she did not do so. The burden of proof lies on the plaintiff to establish her title to the claim of exclusive right over the ‘MN’ passage site. The very existence of the gate V indicates for using of the ‘MN’ passage by the defendants prior to filing of the suit by the plaintiff, which supports the claim of the defendants about the said passage for use as passage, but for their exclusive right over the said passage, they failed to prove the same. Both the plaintiff and defendants failed to establish their exclusive right over the ‘‘MN’ passage. Even the sale deeds at Ex.A.1 and Exs.B1 to B3 do not create any exclusive right over ‘MN’ passage to the plaintiff as well as the defendants. They clearly establish that ‘MN’ passage is a passage for ingress and egress of defendants. Their right of passage is recognized only for their ingress and egress of limited purpose. The lane is not with joint rights of ownership, but for joint right of passage. In that view of the matter, the lower Appellate Court, modifying the decree of the trial Court to the extent of exclusive right of the plaintiff over the ‘MN’ passage, rightly recorded that the plaintiff is having right of passage through Vamudoddi ‘BCDE’ through ‘MN’ marked passage to ‘XY’ public bazaar and the defendants have no right to obstruct and interefere, but they have also limited exercise of right of passage through ‘MN’ passage to reach ‘XY’ bazaar from their houses and vice versa. With regard to the next submission, Whether any plea