THE HON’BLE SRI JUSTICE K.C.BHANU SECOND APPEAL No. 1135 of 2011 JUDGMENT: This Second Appeal is directed against the judgment and decree dated 30-05-2011 in A.S.No.3 of 2011, on the file of the III Additional District Judge, Kurnool at Nandyal, in confirming the judgment and decree in O.S.No.496 of 2009, dated 29-11-2010, on the file of the learned Principal Junior Civil Judge, Nandyal, Kurnool District, whereunder and whereby, the suit, filed by the appellant herein for declaration of RRR marked property in plaint plan as a rastha, was dismissed. 2. For the sake of convenience, the parties herein after will be referred to as they were arrayed in the original suit. 3. The averments of the plaint, in brief, are that the plaintiff purchased open site property situated in the 5th ward of Gajulapalli village in an extent of Ac.0.05 cents on 13-04-2009 under a registered sale deed bearing document No.1719/2009 and constructed a house therein and since then, he is in possession and enjoyment of the said property. As per the sale deed, there is a private rastha to the north of the house property of the plaintiff to reach the Government rastha and towards north of the said private rastha, there is a house of the defendant. While so, the defendant encroached into the R.R.R. marked portion of plaint plan at about 3’ 10” thereby reducing the width of the rastha. Despite mediation, the defendant did not heed their words and further proceed to construct a wall in the encroached portion and hence, the plaintiff filed a suit for declaration that RRR marked property is a rastha and consequential permanent injunction and mandatory injunction directing the defendant to remove the encroachments in the RRR rastha which is shown as ‘ABCD’ marked portion. 4. The defendant remained ex parte and no written statement was filed on his behalf. 5. Based on the above pleadings, the trial Court framed the following issues: 1. Whether the plaintiff is entitled for the relief of declaration of RRR marked property as rastha and consequential permanent injunction? 2. If so, whether the plaintiff is entitled for the relief of mandatory injunction? 3. To what relief? 6. On behalf of the plaintiff, he himself was examined as P.W.1 and got marked Exs.A-1 to A-4. On the other hand, on behalf of defendant, no oral or documentary evidence was marked. 7. The trial Court after considering the evidence adduced by the plaintiff, came to the conclusion that the plaintiff is not entitled for declaration of RRR marked property in plaint plan as a rastha and accordingly, dismissed the suit. Aggrieved by the same, the plaintiff preferred first appeal in A.S.No.3 of 2011. The lower appellate Court dismissed the said appeal observing that the plaintiff failed to show the existence of the rastha in question and in the absence of any documentary evidence to that effect, the claim of the plaintiff is not tenable and accordingly, confirmed the judgment and decree passed by the trial Court. Aggrieved by the same, the plaintiff approached this Court and filed the present second appeal. 8. Heard the learned counsel for the appellant-plaintiff and perused the record. None appeared for the respondent-defendant in spite of service. 9. The learned counsel for the appellant-plaintiff contended that the evidence of P.W.1 and recitals in Ex.A-2 would clearly go to show that the suit schedule rastha is a rastha, but the trial Court, on the ground that no document from the Panchayat Secretary was filed, dismissed the suit, and that on the same ground, the lowe appellate Court confirmed the said judgment. Therefore, findings of both the Courts below are not based upon the admissible evidence, and hence, he prays to set aside the concurrent findings of both the Courts below. 10. The suit was filed for declaration that the suit schedule rastha belongs to the petitioner and that the defendant has no right of whatsoever to interfere or obstruct the free passage through the rastha. The defendant remained ex parte in the suit and as well as in the first appeal. The plaintiff carried the matter to this Court by filing Second Appeal. Before this Court also, the respondent did not contest. 11. There cannot be any dispute that filing of second appeal is not automatic and in routine manner in view of amendment to Section 100 CPC. The appellant must raise substantial question of law so as to admit the second appeal. 12. According to the learned counsel for the appellant, the findings of both the courts below are perverse in view of the fact that the admissible evidence has not been looked into by both the Courts below. The evidence of P.W.1 would clearly go to show that the rastha is in existence for ingress and engress to go to his house and for the simple reason that the plaintiff has not produced the relevant evidence from the Panchayat to show that it is a rastha, the suit was dismissed by the trial Court. For the self same reason, the 1st appellate Court also dismissed the appeal filed by the plaintiff. When the evidence of P.W.1 remained unchallenged, and as there is no cross-examination on the aspects with regard to the existence of rastha for the use of the plaintiff, it can be said that the evidence can be taken as a substantive evidence. Further more, the evidence of P.W.1 coupled with the documentary evidence would clearly go to show about the existing of rastha to be used by the plaintiff. Ex.A-2, registered sale deed, dated 13-04-2009, would go to show that on the northen side boundary, there is a land of Military Subhan and rastha. So from the evidence of P.W.1 and recitals in Ex.A-2 would clearly go to show that there is a rastha in existence. Since it is a private rastha, it would not be shown as rastha in the Panchayat records. So, the evidence of P.W.1 remained unchallenged. The trial Court has not given any reasons rejecting the evidence of P.W.1 as well as the recitals in Ex.A-2. 13. Therefore, the findings of the both the Courts below are perverse because the admissible evidence has not been taken into consideration for the purpose of deciding the issue. Therefore, the impugned judgment and judgment of the trial Court are set aside in view of the fact that the uncontroverted evidence of P.W.1 and Ex.A-2 would clearly go to show that the plaintiff has got right, title and interest to use the rastha. 14. In the result, the Second Appeal is allowed, setting aside the judgment and decree dated 30-05-2011 in A.S.No.3 of 2011, on the file of the III Additional District Judge, Kurnool at Nandyal, and judgment and decree of the trial Court and consequently, the suit is decreed. In the circumstances, no costs. ____________________ 22nd December 2011 kvr