HON’BLE SRI JUSTICE A.GOPAL REDDY DT. 5-2-2010 S.A.Nos.1236 and 1237 of 2009 SA No.1236/2009: 1. Ganisetti Satyam and others …appellants V. 1. Yesu Satyanarayana ..Respondent HON’BLE SRI JUSTICE A.GOPAL REDDY SA Nos.1236 AND 1237 OF2009 COMMON JUDGMENT: The unsuccessful defendants in OS No.183/1998 and the plaintiffs in OS No.146/1998 in the trial Court as well as the lower appellate Court have filed these Second Appeals against the common judgment and decrees dated 30-9-2009 passed in AS Nos.8/2006 and 9/2006 on the file of Senior Civil Judge, Ramachandrapuram respectively, whereunder learned Judge dismissed the appeals confirming the common judgment and decrees dt. 1-2-2006 passed in OS Nos.183/1998 and 146/199 on the file of Junior Civil Judge, Alamuru, East Godavari District, respectively decreeing OS No.183/1998 filed by the respondent/plaintiff herein partly and dismissing OS No.146/98 filed by the appellants/plaintiffs in SA No.1237/2009. For the sake of convenience the parties hereinafter will be referred to as arrayed in the suits. Respondent in SA No.1236/2009 who is the plaintiff in OS No.183/98 filed the suit against the appellants/defendants herein ie., in SA No.1236/2009 (a) for declaration that the plaintiff is the owner of ABCD red marked site shown in the plaint plan having right and title over the same and for recovery of possession of the said ABCD red marked site after demolishing the septic latrine-cum-bathroom shown as ‘L’ and also any encroachment including “AB” compound wall; (b) for mandatory injunction directing the defendants 1 to 3 to close the way at point ‘X’ along AD in the plaint plan; (c) for grant of permanent injunction restraining the defendants 1 to 3 and their men from opening any doorway in future along the lane AG inclusive of passing through the joint private lane shown in the plaint plan and for costs. Before filing OS No.183/1998, the appellants herein filed OS No.146/1998 against the plaintiff in OS No.183/1998 and two others (respondents/defendants in SA No.1237/2009) for permanent injunction restraining the defendants, their men, agents, representatives, successors or any one in any manner of right interfering with AB doorway corresponding to the plaint schedule land situated on western side of Gollapunta road and for costs. The case of the plaintiff in OS No.183/1998 is that he owns a house bearing Door No.28-3-10 along with vacant site, shown as FEBCDA, having purchased from one Bikkina Suramma under a registered sale deed dt. 24-11-1993. The said house is abutting a joint lane on the north. Since the date of purchase, the plaintiff has been in possession and enjoyment of the property purchased under the sale deed dt. 24-11-1993. The vendor of the plaintiff, ie., Suramma purchased the property from Sunkara Venkataraju under a registered sale deed dt.7-3-1986 and she enjoyed the same till she sold the property to the plaintiff. Sunkara Venakta Raju got the property under a registered sale deed dt. 21-2-1957 from Sunkara Venkanna. Originally, the suit schedule property belonged to one Pamarthi Gangaraju, who sold the same to Putchakayala Suranna under a sale deed dt. 2-5-1923. So, from 1923 onwards till today the plaintiff and his predecessors are the owners of the said house and they have been continuously in possession and enjoyment of that property. In all the above documents, Northern boundary to the property covered under the above documents, is a joint private lane to certain individuals but not public lane. The neighbours of joint lane who have got houses have been exercising right of way through that lane. The defendants’ own a house to the East of the plaintiff’s house, shown as CDGH in the plaint plan. Previously, there was a compound wall between the defendants’ house and the plaintiff’s house and site along the line CD, as shown in the plaint plan. The defendants 1 to 3 who happened to be masons by profession unauthorisedly removed the boundary wall CD in the absence of the plaintiff and encroached into ABCD portion and constructed a compound wall along the lane AB. They also constructed a septic latrine-cum-bathroom, shown as ‘L’ in the plaint plan in the encroached area. They have highhandedly opened a doorway at point ‘X’ along the lane AD and the doorway and the septic latrine were erected immediately after they encroached into the red marked area shown as ABCD. On plaintiff returning to the village, he raised a dispute before the elders. Since the defendants did not heed the advice of the elders, the plaintiff gave a report to the police on 31-7-1998 against the highhanded act of the defendants in encroaching ABCD portion and opening of doorway and making unauthorized constructions. On which basis, a case in Cr.No.143/1998 was registered and the same is still pending. If the defendants are allowed to continue the above said doorway, it interferes with the plaintiff’s right of way in the joint lane. The defendants in OS No.183/998 filed OS No.146/1998 against the plaintiff in OS No.183/1998 and two others contending that they (plaintiffs in OS No.146/1998) and their predecessors-in-title have been continuously in possession and enjoyment of the terraced building bearing Door No.28-3-11 of Mandapeta Municipality. One Ganisetty Veeranna executed a document in favour of Ganisetty Venkatamma. Ganisetti Veeranna, father of the first plaintiff executed the settlement deed on 24-2-1924 by conveying life interest in favour of the step mother Ganisetty Venkatamma. The first plaintiff’s father, executed a document in respect of the wet land and also the vacant site and thatched house. Ganisetty Veeranna is the only son of Ganisetty Pattabhi. The first plaintiff is the only son of Ganisetty Veeranna. Ganisetti Venkamma enjoyed the property by virtue of document dt.24-2-1924. After the death of Ganisetty Venkamma, Ganisetty Veeranna continued in possession of the property and the same was devolved upon the first plaintiff’s father Ganisetty Veeranna. During the lifetime, he (Ganisetty Veeranna) enjoyed the property with absolute rights. During the life time of Ganisetty Veeranna, he converted the thatched house into tiled house during the existence of Mandapeta Grampanchayat. Ganisetty Veeranna having doorway into the lane towards the northern side of his house. He enjoyed the way into the lane since the date of opening. After the death of Ganisetty Veeranna, the first plaintiff was in possession of the thatched house by exercising his right through the doorway. He converted the tiled house into a thatched building which was approved by the Mandapeta Municipality. The lane on the northern side of the plaintiffs’ house was always treated as public lane but not belongs to any individual. The lane is leading to East-West direction on western side of the Gollapunta Road. While so, the defendants 1 to 3 proclaiming in the village that they will close the doorway and they have no right, title or interest to close the way at point AB and to cause inconvenience to the public lane. The defendants in OS No.183/1998 filed written statement raising the same pleadings as pleaded in the plaint in OS No.146/1998. So also, the defendants in OS No.146/1998 filed written statement raising the same pleadings as pleaded in the plaint in OS No.183/1998. On the above pleadings, the trial court framed the following issues in OS No.183/98: 1. Whether the plaintiff is entitled for declaration of his right and title, through ABCD marked site as shown in the plaint plan? 2. Whether the plaintiff is entitled for mandatory injunction against D-1 to D-3 to close the door way at point X along the lane AD as shown in the plaint plan? 3. Whether the plaintiff is entitled for permanent injunction restraining the defendants from opening any doorway along lane AG inclusive of passage through the joint private lane as shown in the plan? 4. To what relief? In OS No.146/1998: 1. Whether the plaintiff is entitled for permanent injunction as prayed for? 2. To what relief? On a memo filed by the plaintiff in OS No.146/1998, both the suits were clubbed together and the evidence was recorded in OS No.183/1998. On behalf of the plaintiffs, P.Ws.1 to 3 were examined and Exs.A-1 to A-7 were marked. On behalf of the defendants, D.Ws.1 to 3 were examined and Exs.B1 to B11 were marked. The trial court after analyzing the oral and documentary evidence decreed the suit OS No.183/1998 partly declaring that the plaintiff is the owner of ABCD red marked site, having right and title over the same; directing the defendants 1 to 3 to demolish ‘L’ marked septic latrine –cum – bathroom and AB compound wall and handover possession of ABCD red marked portion as shown in the plaint plan; directing the defendants 1 to 3 by way of mandatory injunction to close the doorway at point ‘X’ along the lane AD as shown in the plaint plan; restraining the defendants 1 to 3 by way of permanent injunction from ever opening any doorway in future along with the lane AD as shown in the plaint plan and dismissing the claim of the plaintiff for permanent injunction restraining the defendants 1 to 3 form ever opening any doorway in future along with lane AG inclusive of passing though the joint private lane. The trial court while decreeing OS No.183/1998 partly, dismissed OS No.146/1998. Against decreeing the suit OS No.183/1998 and dismissing the suit OS No.146/1998, the defendants in OS No.183/1998 and the plaintiffs in OS No.146/1998 filed AS Nos.8 and 9 of 2006 respectively before the lower appellate court, namely, Senior Civil Judge, Ramachandrapuram. The lower appellate court after analyzing the oral and documentary evidence made available on record, dismissed the appeals by the impugned common judgment holding that from the report of the Advocate- Commissioner, for which, no objections are filed by the appellants herein, it is very clear that the disputed ABCD red marked property shown in the plaint plan is exclusively owned by the plaintiff in OS No.183/1998 (also defendant No.3 in OS No.146/1998) and the encroachment by the appellants herein was a few months prior to filing of the suits. The respondent in SA No.1236/2009 (plaintiff in OS No.183/1998) proved not only his title but also his possession in the plaint plan was the real boundary between the properties of the appellants herein and the respondent in SA No.1236/2009 and so that the doorway shown as ‘X’ and toilet shown as ‘L’ in the plaint plan are of recent origin but not they are in existence from a long time as pleaded by the appellants. It is evident from Exs.A- 1 and A-2, registered sale deeds obtained by the plaintiff in OS No.183/1998 and his vendors that the property purchased therein was delivered on the respective dates of the sale deeds, and accordingly dismissed the appeals. The findings recorded by the courts below are based on appreciation of evidence and cogent reasons were assigned for coming to such conclusion, which do not suffer from any manifest illegality. Therefore, I do not find any question of law; much less substantial question of law arises for consideration in the second appeals. The second appeals are accordingly dismissed. _______________ A. GOPAL REDDY, J Date:5-2-2010 kmr