IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU SECOND APPAL No.732 OF 2011 Date:18-08-2011 Between:- K.G.V. Saraswathi … Petitioner And T. Suryakanthamma and another … Respondents HONOURABLE SRI JUSTICE K.C. BHANU SECOND APPAL No.732 OF 2011 JUDGMENT: This Second Appeal is directed against the judgment and decree, dated 28-03-2011, in A.S. No.56 of 2004 passed by the IV Additional District Judge (Fast Track Court), Tanuku, West Godavari District, whereunder and whereby the judgment and decree, dated 08- 10-2004, in O.S. No.215 of 1992 passed by the Principal Junior Civil Judge, Tanuku, West Godavari District, decreeing the Original Suit filed by the 1st respondent - plaintiff, were confirmed. 2. For better appreciation of facts, the parties hereinafter are referred to as they arrayed in the trial Court. 3. The brief facts that are necessary for disposal of the present appeal may be stated as follows: One Kantipudi Veeranna has some property. Plaintiff’s vendor, by name, Siripurapu Satyavathi, is the grand daughter i.e. son’s daughter, of the said K. Veeranna. Some property was given to the said S. Satyavathi by her father and brothers by way of ‘Pasupukunkuma’. The 1st defendant is also a grand daughter i.e. daughter’s daughter of K. Veeranna and she got some property of K. Veeranna through her mother. The 2nd defendant is the father of the 1st defendant. The plaintiff purchased an extent of Acs.2.22 cents in R.S. No.350/1, 350/9 and 350/11 of Mortha Village from S. Satyavathi. The disputed land is an extent of Ac.0.20 cents, which is in lower level and other lands of the plaintiff are in higher level. The property of the 1st defendant is situated on the Southern and Western side of the suit land. Some disputes arose with regard to location of boundary bund in between the plaintiff’s land the 1st defendant’s land. On the advice of mediator, the lands were got measured and the bund was reconstructed. The plaintiff raised paddy crop in the disputed land and in the rest of the land, she raised sugarcane crop, as such the plaintiff is in undisputed possession and enjoyment of the entire land. As the defendants are trying to trespass into the land of the plaintiff, she filed the suit for permanent injunction against the defendants and got injunction vide order, dated 01-08-1992, in I.A. No.1805 of 1992. During the pendency of the suit, the defendants violated the injunction order and as such, the plaintiff amended the prayer in the suit by seeking mandatory injunction and delivery of possession. The 1st defendant filed written statement denying the averments of the plaint. She contended that the suit is not maintainable under law for mis-joinder of parties as the 2nd defendant is unnecessarily added as party and that he is aged about 85 years and is not attending cultivation. She further contended that she got the land from her brother, which was given by her grand father i.e. K. Veeranna as ‘Pasupukunkuma’ to her mother and that she is in possession and enjoyment of the same since 1959 and before that her predecessors in title are in possession and that she perfected her title by way of adverse possession and that they never trespassed into the plaintiff’s land, that the plaintiff was never in possession of the plaint schedule property, that the plaintiff and others filed O.S. No.365 of 1991 for possession of Ac.0.20 cents of land in R.S. No.350/3 and the said suit was dismissed, therefore, she prays for dismissal of the suit. The 2nd defendant filed a memo adopting the written statement filed by the 1st defendant. 4. Basing on the above pleadings, the following issues were framed by the trial Court: 1. Whether the plaintiff is entitled to permanent injunction as prayed for? 2. To what relief? The following additional issues were also framed by the trial Court: 1. Whether the plaintiff is entitled to mandatory injunction as prayed for? 2. Whether the plaintiff is entitled to recovery of possession of schedule property as sought for? 3. Whether there is cause of action? 4. Whether the defendants perfected their title by way of adverse possession? 5. On behalf of the plaintiff, PWs.1 to 3 were examined and Exs.A-1 to A-3 were marked. On behalf of the defendants, DWs.1 to 3 were examined and Exs.B-1 and B-2, and Ex.X-1 were marked. 6. The Trial Court after considering the evidence on record, decreed the suit directing the defendants to deliver the vacant possession of the plaint schedule property to an extent of Ac.0.19.02 cents with 60 links on the east, 64 links on the west, 315 links on the north and 307 links on the south and also granted mandatory injunction directing the 1st respondent and the 2nd defendant to restore status quo ante by forming the bund in between the plaintiff’s land and defendants’ land and also granting future profits. Aggrieved by the same, the appellant – 1st defendant filed the appeal. The appellate Court confirmed the judgment and decree of the trail Court. Challenging the same, this Second Appeal is filed. 7. The substantial questions of law raised by the appellant before this Court are: a) Whether the courts below are justified relying on the evidence of defendant, passing judgment and decree in favour of the plaintiff? b) Whether a suit for mandatory injunction for delivery of piece of land from the neighbours (defendants) land can be decree measuring only the land of the defendant and without measuring the land of the plaintiff with reference to the property documents and other neighbours? c) Whether the courts below appreciated the evidence on record in proper perspective, if appreciated in proper perspective ought to have reached a different conclusion? d) Whether the appellate court below have applied the judicious mind in conforming the judgment and decree of the lower court? 8. Learned counsel for the appellant contended that the plaintiff without proper physical verification of plaint schedule land, obtained the sale deed in her favour and relying upon the evidence of PW-1 alone, the Courts below decreed the suit, that earlier judgment between the parties in O.S.No.365 of 1991 has become final, which has not been taken into consideration, and both the Courts below have taken into consideration the evidence so as to decree the suit, and therefore, he prays to admit the Second Appeal. 9. There cannot be any dispute that in view of the amendment to Section 100 CPC, admission of a Second Appeal is not automatic or routine manner. Even on the question of law also a Second Appeal cannot be entertained, unless the appellant raised substantial question of law in the Second Appeal. 10. Sub-Section 1 of Section 100 CPC declares that an appeal shall lie to the High Court against every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. The expression “substantial question of law” has not been defined in the code. But it must mean that it should directly and substantially affect the rights of the parties. In other words, it can be said that the question must be debatable, agreeable and not free from doubt. Recording of a finding without any evidence, non-consideration of relevant or admissible evidence, taking into consideration inadmissible evidence, misconstruction of evidence, perverse findings are some illustrations, wherunder the Second Appeal can be admitted. 11. The suit is filed by plaintiff for recovery of possession of the plaint schedule property and also for grant of mandatory injunction for restoring status quo ante by forming the bund in between the plaintiff’s land and the 1st defendant’s land and for a consequential direction to deliver the vacant possession. The case of the plaintiff is that she purchased Acs.2.22 cents of land in R.S.Nos.350/1, 350/9 and 350/11 in Mortha village from her vendor S. Satyavathi. On the other hand, the case of the 1st defendant is that from 1959 onwards, the she is in possession and enjoyment of her land and that the plaintiff is not in the possession and enjoyment of the property and therefore, the 1st defendant perfected her title by virtue of adverse possession. Under Ex.A-1, which is the registered sale deed, dated 13-08-1991, the plaintiff purchased Acs.2.22 cents from her vendor S.Satyavathi, who got the property by virtue of registered settlement deed, dated 15-06- 1958 and she took possession of the land after taking the measurements. Therefore, the evidence of PW-1, coupled with the evidence of PWs.2 and 3, would clearly go to show that the plaintiff has got right, title and interest to an extent of Acs.2.22 cents of land. Even D.W-2 i.e. S. Satyavathi, vendor of the plaintiff stated that under Ex.A-1 she sold to the plaintiff her land, which she received from her father by way of ‘Pasupukunkuma’. 12. The case of the appellant / D1 is that she perfected her title by adverse possession. Since she had taken a plea that she perfected her title by adverse possession, it is for her to establish that she had been in continuous and uninterrupted possession of the property to the knowledge of the real owner. Further, the allegation by D1 that she is in possession of plaint schedule property since 1959 and perfected title by adverse possession is contradicted by his witness DW-2. DW- 2 has categorically stated that she was in possession of plaint schedule property till it was sold to plaintiff under Ex.A-1 on 13-08- 1991. The brother of D1 is examined as DW-1. He admitted that originally the land in question belonged to DW-2 and she was in enjoyment of the property by paying land revenue. The suit is filed in the year 1992. Therefore, the question of adverse possession as pleaded by defendant NO.1 is nothing but a false assertion. On the own showing of DW-1, the plea of adverse possession is not available to defendant No.1. Except marking Ex.B-1, which is the Photostat copy of the plan, and Ex.B-2, which is registered gift deed, no document or revenue record is filed to show that she had been in continuous and uninterrupted possession of the property for over 12 years. Therefore, the trial Court has rightly disbelieved the plea of D1 that she perfected her title by adverse possession. It is not in dispute before this Court that the boundaries and extent of land, as mentioned in the plaint, are tallying with the boundaries and extent of land as mentioned in Ex.A-1, which is not in dispute. Therefore, the trial Court has rightly decreed the suit as D1 failed to establish her plea and the same was rightly confirmed by the appellate court. Both the Courts gave concurrent findings, basing upon proper appreciation of evidence on record. Appreciation of evidence is not shown to be perverse or contrary to law. The appellant / D1 has not brought to the notice of this Court that inadmissible evidence has been taken into consideration or the admissible evidence has been overlooked by both the Courts. In the absence of any perverse findings, the question of admitting the Second Appeal does not arise. 13. Therefore, the Second Appeal is devoid of merits and accordingly, the same is dismissed, at the stage of admission. There shall be no order as to costs. ____________ K.C. BHANU, J August 18, 2011. KTL