HON’BLE SRI JUSTICE A. GOPAL REDDY S.A. No.662 OF 2010 Dated:23-07-2010 Between: Koppisetti Rayudu …Appellant AND Yellaboyina Suramma & Another …Respondents This Court made the following: HON’BLE SRI JUSTICE A. GOPAL REDDY S.A. No.662 OF 2010 JUDGMENT: Defendant filed this second appeal questioning the judgment and decree of III Additional Senior Civil Judge, Kakinada, dated 4.3.2010, whereby the appeal filed by the plaintiffs was allowed decreeing the suit in O.S.No.40 of 1998 on the file of Principal Junior Civil Judge, Kakinada, which was dismissed by judgment and decree, dated 15.4.2005. For the sake of convenience, the parties hereinafter will be referred to as per their array in the trial Court. The plaintiffs instituted the suit for declaration that they are the owners of red-marked portion of the plaint schedule property which is an extent of Ac.0.01 cent and for delivery and possession of the same after removing the encroachments made by the defendant. According to the plaintiffs, they are the owners of the plant schedule property which is an extent of Ac.1.00 of land situated in Sy.No.277 of Thammavaram Village of Kakinada Rural Mandal having purchased the same by the first plaintiff under a registered sale deed, dated 8.9.1960-Ex.A.1. Since the date of purchase, they are in possession and enjoyment of the same. Towards North of plaintiffs’ property, property of defendant is situated, which is an extent of Ac.0.10 cents in Sy.No.277/1 of Thammavaram Village. The plaintiffs raised kattava/koradi on all four sides of their land and when the Southern side owner-Lovaraju tried to encroach the Southern side katta, they filed a suit in O.S.No.150 of 1988 on the file of I Additional District Munsif’s Court, Kakinada, which was decreed in their favour under Ex.A.2. In the said suit, an Advocate-Commissioner was appointed, who inspected and filed a report-Ex.A.3 noting the existence of korada/kattava on Northern side of plaintiffs’ property. It was pleaded that the defendant highhandedly encroached into the piece of land to an extent of Ac.0.01 by removing the katta, made some constructions described in Red-colour in plaint plan, when the plaintiffs questioned, he gave adamant reply, and therefore, the present suit by the plaintiffs. Contesting the suit, the defendant filed a written statement admitting that he purchased Ac.0.10 cents of land under original of Ex.B.1, dated 3.7.1983 and that he made constructions within his own site and did not encroach any part of the land of the plaintiffs. He also took the plea of adverse possession. His further case was that his land is 3 feet height than the land of the plaintiffs, and therefore, the question of encroachment does not arise. He claims that the koradi/kattava belongs to him. Basing on the above rival pleadings, the trial Court framed an issue, whether the plaintiffs are entitled for declaration and delivery of possession as prayed for. To prove the case of the plaintiffs, second plaintiff herself examined as P.W.1 apart from examining two more witnesses on their behalf, and marked Exs.A.1 to A.3. On behalf of the defendant, D.Ws.1 to 4 were examined an Exs.B.1 was marked. That apart, Exs.C.1 to C.6 were marked. The trial Court upon appreciation of oral and documentary evidence dismissed the suit mainly relying upon the evidence of Advocate-Commissioner who was examined as D.W.4 and his report, which shows that the property of the plaintiffs is Ac.0.99 cents, that though the plaintiffs filed objections stating that the surveyor did not measure the property of the defendant and the commissioner and the surveyor ought to have taken the previous survey report into consideration and fixation of points A and H was not correctly made, they did not choose to examine the surveyor, even though D.W.4 has stated that as per the measurements taken by him with the assistance of the surveyor, there is no encroachment of plaintiffs’ property by the defendant. It was held that the plaintiffs failed to establish that the defendant had removed the koradi/kattava belonging to them and situated on the North of their property and they further failed to establish that the defendant had encroached into the site shown as Red-marked portion as shown in the plaint plan. On appeal being filed, the lower appellate Court on re-appreciation of the entire evidence and after going through the report of the Commissioner and his evidence, observed that the Advocate-Commissioner filed the spot notes and also report along with spot notes prepared at the spot stating that he measured the plaintiffs’ property as per F.M.B. which comes to Ac.0.99 cents i.e. deficit of Ac.0.01 cents. He also stated that he measured the defendant’s property and observed as per the document of the defendant except North- South remaining 3 sides there is excess extent in possession of the defendant. He further stated that the plaintiffs were found to be less of 13 links on the Eastern side. The defendant in the cross-examination admitted that the Southern boundary of his site is mentioned as kattava of first plaintiff, that the said kattava is adjacent to his site since long time, that the said kattava is situated on the Northern side, Western side and Southern side of the first plaintiff. Therefore, considering the said evidence, the lower appellate Court held that when there are kattavas on remaining three sides, the Northern side kattava also belongs to the plaintiffs only. The defendant further admitted that there is a compound wall towards Northern side of first plaintiff, that the said wall belongs to Deyyala Bulokayya and the said wall of Bulokayya is boundary of first plaintiff, but he denied the suggestion that beyond the said wall, his house is situated. When the defendant admitted that the Southern side boundary is kattava of plaintiffs, then nothing is required to show the plaintiffs title and possession over the kattava. In that view of the matter, it was held that the theory of the plaintiffs that Northern side kattava to their Ac.1.00 of land belongs to them and part of it was encroached by the defendant is tenable. The defendant also admitted in the cross- examination that kattava would be formed by placing sand and mud and further admitted that his house and houses of Appanna and Pentayya are situated in the same alignment. He admitted that kattava will be raised some height than the land. He also admitted that kattavas of three sides of plaintiffs’ property are at a height of 3 feet. Considering the said admission, the lower appellate Court observed that simply because the encroachment noticed by the commissioner is in higher level, it cannot be said that the said encroached portion does not belong to the plaintiffs, and that the Commissioner and the defendant misled the trial judge by shifting the claim on the Eastern side owner though on the East there is a gram kantam site, and accordingly allowed the appeal with costs throughout. The findings recorded by the lower appellate Court are on appreciation of the report submitted by the Advocate- Commissioner and the evidence adduced by the parties including the admissions made by the defendant. No perversity is discernable with the findings recorded by the lower Court and no question of law much less any substantial question of law arises for consideration to admit the second appeal. The Second Appeal fails and the same is accordingly dismissed. No order as to costs. _______________ A. GOPAL REDDY, J. JULY 23, 2010 Tsr.