IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE EIGHTH DAY OF JULY TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.590 of 2011 BETWEEN Sanaullah Khan. …APPELLANT AND Addi Ashok Reddy and another. …RESPONDENTS Counsel for the Appellant: MR. LAKKADI DAYAKAR REDDY Counsel for the Respondents: MR. V. RAVINDER RAA The Court made the following: - JUDGEMENT: The plaintiff in O.S.No.35 of 2005 is the appellant. He had filed the suit for perpetual prohibitory injunction restraining the defendants/respondents herein from encroaching upon the suit pathway and also for mandatory injunction directing the defendants/respondents to pull down the constructions made by them. 2. The allegations in the plaint briefly were supported by Ex.A1 – plaint map wherein the houses of the plaintiff and the defendants were shown and the disputed passage, which is shown as 11’ wide road and it was claimed that the suit passage is in use by the plaintiff for several years and that the defendants while constructing their house have encroached upon the said pathway shown in Ex.A1. The plaintiff also tried to support the said contention by filing the photographs – Exs.A2 and A2(A); Ex.A3 – house tax receipt and Ex.A6 – property tax receipt as well as the complaint given by him to the District Collector, Adilabad, under Ex.A5. The defendants filed written statement claiming that there is no suit pathway as claimed by the plaintiff and in fact, the said disputed site is part of the plot allotted to the second defendant under Ex.B1 by the Mandal Revenue Officer, Jainath Mandal. It was also alleged that in pursuance of plaintiff’s complaint – Ex.A5, the Collector directed the Divisional Panchayat Officer to visit the disputed site and submit a report and that as per the report of the Divisional Panchayat Officer also no such pathway, as alleged in the plaintiff, was found. 3. The trial Court framed the following issues: 1. Whether the plaintiff is entitled for a perpetual injunction against the defendants and their men etc, not construct any structure in the “Y” portion shown in the plaint map or not? 2. Whether the plaintiff is entitled for a mandatory injunction to remove the construction made by the defendants on the road “Y” which is shown in the red colour portion in the plaint map or not? 3. To what relief? 4. Based on the oral evidence of P.Ws.1 to 5 and after considering Exs.A1 to A6, which are referred to above, as well as the oral evidence of D.Ws.1 and 2 together with Exs.B1 to B9, the trial Court came to the conclusion that P.W.3, witness, examined on behalf of the plaintiff was not trustworthy as he was farm servant of P.W.1. Similarly, P.W.2 was only an adjacent plot owner and the other oral evidence was not sufficient to establish the plaint allegations. It also found, on the contrary, that the defendants have produced substantial evidence in the shape of Ex.B8 report of the Divisional Panchayat Officer, as proved by D.W.1, coupled with Exs.B1, B3 and B4 i.e. proceedings of allotment and handing over of possession etc., was sufficient to hold that the land claimed in the suit by the plaintiff was part of the second defendant’s plot and a valid permission was granted by the gram panchayt under Ex.B4 permitting the defendants to take up construction thereon. In the light of the above, therefore, the suit of the plaintiff was dismissed. 5. On appeal being A.S.No.42 of 2006, the lower appellate Court by judgment and decree dated 01.06.2009 has concurred with all the said findings of the trial Court and came to hold that there is no public road or pathway, as claimed by the plaintiff. Consequently, it had dismissed the appeal filed by the plaintiff. 6. In this second appeal, the learned counsel for the appellant made valiant attempt to substantiate that this appeal involves substantial questions of law for consideration. But I am unable to appreciate such contention. The primary and basic requirement for plaintiff to establish being existence of the suit passage as an access to public road, was not established and on the contrary there is abundant evidence to show that it is the plot allotted to the second defendant by the MRO on which the gram panchayat has granted building permission. This was, further, confirmed by Ex.B8 report of the Divisional Panchayat Officer, submitted to the Collector, which, therefore, effectively states the primary factual aspect involved in the suit was held against the plaintiff and when there are concurrent findings on that aspect by both the Courts below, while exercising the second appellate jurisdiction, it is not permissible to interfere with the said findings. In view of that no substantial questions of law arise for consideration in this appeal. The second appeal is accordingly dismissed at the stage of admission. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J July 8, 2011 DSK