IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE FIFTEENTH DAY OF NOVEMBER TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU SECOND APPEAL NO. 274 OF 2010 Between : M.Mahaboob Sab ... APPELLANT A N D Ibrahim Sabs …RESPONDENT THE HON'BLE SRI JUSTICE K.C. BHANU SECOND APPEAL NO. 274 OF 2010 JUDGMENT: This Second Appeal, under Section 100 of the Code of Civil Procedure, 1908, is directed against the judgment and decree, dated 01.09.2009 in Appeal Suit No.31 of 2008 on the file of the III Additional District Judge, Anantapur District, whereunder and whereby, the decree and judgment dated 26.11.2001 in Original Suit No.166 of 2001 on the file of Junior Civil Judge, Kalyandurg, Anantapur District, were confirmed with costs. 2. The appellant herein is the plaintiff and the respondent herein is the defendant, in the trial Court. For better appreciation of facts, the parties are hereinafter referred to, as they are arrayed before the trial Court. 3. The brief facts are, the plaintiff filed Original Suit No.166 of 2001 on the file of the Junior Civil Judge, Kalyandurg, for permanent injunction against the defendant stating that, plaintiff is the absolute owner of the plaint schedule space in which a wooden bunk was installed about 35 years ago wherein a cool drink shop and tea stall are being run. The plaintiff has been paying cist and electricity bills to the plaint schedule premises to the concerned departments. The suit schedule site originally belonged to Sri Virakthi Gavi Matt, Kalyandurg. They allotted the said site to the bus stand. The business people installed bunks and huts around the bus stand. In the middle of the bus stand, buses used to halt. The plaintiff shop is situated towards eastern side of the bus stand. Nobody interfered or obstructed with the plaintiff’s enjoyment in the schedule space and that the plaintiff’s right and title are declared by adverse possession also having enjoyed the same for more than statutory period. The defendant is the watch repairer in the old bus stand. The defendant has no manner of right, title, interest or possession over the schedule space and bunk. Two days prior to filing of the suit, police officers constructed a shelter to the passengers 20 yards away from the plaintiff’s bunk. The defendant is trying to encroach the plaintiff’s space by installing wooden table and other material, which causes obstruction to the plaintiff. The elders interfered and admonished the defendant. The defendant is powerful and influenced person and he may interfere with the plaintiff’s possession and enjoyment of the schedule space at any time. Hence, the Suit. 4. The defendant filed written statement denying the allegations made in the plaint and contending that the suit schedule site belongs to Sri Virakthi Gari Mutt, Kalyandurg; and at present the same is being used as bus stand and there were wooden bunks around the bus stand. The defendant installed a bunk and running watch repair shop; and he is in possession and enjoyment of the schedule property without any obstructions since long time. The defendant has no other source except watch repair shop to eke out his livelihood. The plaintiff is very rich and powerful person making efforts to encroach upon the defendant’s site. The village elders and Executive Officer of Endowment Department supervising the affairs of Virakthi Gari Mutt, Kalyandurg, allowed him to install the bunk to run the business. The plaintiff has no right, title, possession and enjoyment over the suit schedule property. Therefore, the question of adverse possession as claimed by the plaintiff does not arise. The documents filed by the plaintiff are created for the purpose of this case. The plaintiff’s site is situated towards the South of the defendant’s site. The description of the boundaries of the plaint schedule property are not correct and that there is no cause of action for filing the suit. Hence, he prayed to dismiss the suit. 5. On the basis of above pleadings, the following issues have been settled by the trial court for trial: 1. Whether the plaintiff is entitled for possession by way of adverse possession? 2. Whether the plaintiff is entitled for permanent injunction as prayed for ? 3. To what relief ? 6. During trial, PWs-1 and 2 were examined and Ex.A.1 to A.22 were marked, on behalf of the plaintiff, and on behalf of the defendant, DWs.1 to 3 were examined and Exs.B1 to B9 were got marked. The trial Court upon considering the evidence on record, dismissed the suit. On appeal the said judgment and decree were confirmed by the first appellate Court. Challenging the same, the present Second Appeal is filed. 7. In view of the amendment to Section 100 C.P.C., filing of the second appeal is not automatic or routine. The appellant must show the substantial question of law involved so as to admit the same. In view of the fact that both the Courts below gave concurrent finding, this Court cannot reappreciate the evidence and arrive at a different conclusion in the second appeal. But perverse finding is a substantial question of law so as to admit the Second Appeal. A finding is said to be perverse, if it is not based upon admissible evidence on record or inadmissible evidence has been taken into consideration or misconception of evidence or documents. To know whether the findings are correct, or not, it is necessary to refer to the evidence adduced by the parties. 8. According to the learned counsel for the appellant, the substantial questions of law are whether both the Courts below are right in judgments on the assumptions and presumption; whether the Courts below failed to see that receipts with regard to payment of rent to the owner Virakthy Matta by the defendant which are in receipts of his premises which is different from the plaintiff suit premises; and whether the Courts below are right in holding that documentary evidence adduced by the plaintiff does not establish plaintiff’s exclusive possession. 9. With regard to issue No.1, the schedule property is a bunk in old bus stand in survey No.235/1A of Kalyandurg Mandal, S.R.D. of Kalyandurg, admeasuring East to West 13 feet and North to South 9 feet bounded by- East: Rastha; West: Old Bus stand; North: Mandal Narayanaswamy Shop, and South:Radio shop of Vadde Sreenivasulu. The defendant is not the owner or the neighbourer of the plaintiff’s bunk. The case of the plaintiff is that he perfected his title by adverse possession, in view of the fact that he has been in possession of the property for more than 40 years. It is not the case of the plaintiff that the defendant is the owner of the plaint schedule property, so as to claim adverse possession. On his own showing when the defendant is not the owner of the plaint schedule property and he has no right, title or interest, the question of claiming adverse possession against the person who is the not having the title does not arise. Therefore, the findings of the courts on the aspect cannot be shown to be perverse. 10. With regard to issue No.2, the plaintiff must show that the defendant is interfering with the possession and enjoyment of the plaintiff over the schedule bunk. No doubt, the plaintiff is paying the rents to the owner, which is Veerti Gavi Mutt. In all the documents filed by him, they do not reveal any dimensions or measurements of the Bunk. Only Ex.A14 contains the measurements of the bunk of the plaintiff and some of the documents, viz., Exs.A.17 to A.20 do not contain the name of the plaintiff at all. Exs.A.1 and A.2 show that the plaintiff is in occupation of 11 x 8 feet. Exs.A.12 and A.14 show that the plaintiff is in possession and enjoyment of 13 x 9 feet space. An advocate commissioner was appointed to note down the physical features of the bunk. According to report of the advocate commissioner, the bunk of the plaintiff is covered with zink sheet and it admeasures 9 feet of length on East-West, and 7.2 feet to North- South. Therefore, the plaintiff has not come forward with definite pleading with regard to nature of extent or measurements of the site, in which the he raised the bunk. The measurements with regard to the boundaries of the schedule bunk are not correct. P.W.1 stated categorically that the bunk of the defendant is located towards Northern side. But the Northern boundary of the plaint schedule site is shown as the boundary of one Mangali Narrayanaswamy. Therefore, it is not possible for the defendant to encroach into the site of the plaintiff from Northern side. 11. The Executive Officer for group of temples of Kalyandurg, who was examined as D.W.3, categorically stated that the defendant has bunk towards the northern side of the plaintiff’s bunk and he had been paying the rents since 1998. Exs.B.1 to B.6 are the receipts issued by him. Even P.W.3 who is examined on behalf of the plaintiff categorically stated that the defendant is running the watch shop, but he did not state that the defendant attempted to encroach on the plaintiff’s site. According to the evidence of P.W.3 the bunk of the defendant is situated towards western side of the plaintiff’s bunk. Therefore, plaintiff has not come to the Court with clean hands, showing the actual extent of site in which the bunk is located. 12. There are lot of discrepancies regarding the measurements of the bunk in which the plaintiff claiming injunction. Therefore, the trial Court did not accept the evidence of witnesses, as the schedule property in which the plaintiff is in possession and enjoyment has not been clearly stated. None of the findings is shown to be incorrect or improper, and they are based on proper appreciation of evidence. Therefore, there are no grounds to interfere with the same. As such, there is no substantial question of law to admit the Second Appeal. 13. Accordingly, the Second Appeal is dismissed at the stage of admission. There shall be no order as to costs. _______________ K.C.BHANU. J NOVEMBER 15, 2010. YVL THE HON'BLE SRI JUSTICE K.C.BHANU SECOND APPEAL (SR) NO. 38467 OF 2010 DATED: 15.11.2010