THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR A.S. No. 2629 of 2001 Judgment: This appeal is directed against the judgment and decree dated 26.06.2001 passed in O.S. No. 29 of 1999 by the learned Senior Civil Judge, Pithapuram, whereby and whereunder the suit filed by the plaintiffs/respondents 1 to 3 herein has been decreed against the defendants 1 and 2/appellants herein declaring the plaintiffs right of passage for ingress and egress into their properties from northern road through the lane A B I J D C as shown in the plaint sketch and granting of consequential injunction restraining the defendants and their men from ever interfering with the plaintiffs right of ingress and egress through the said passage and also granting of mandatory injunction directing the first defendant to remove the unauthorized construction in the passage I J D B-2 and to restore the width of the passage to its original position up to I J. The suit was dismissed against Defendant No.3. 2. The parties hereinafter will be referred to as they are arrayed in the suit for the sake of convenience. 3. The plaintiffs filed the suit for declaration of their right of passage. The plaintiffs are the owners of the site ‘O K P Q’ and they have a right of passage for ingress and egress into their properties from the northern road only through the passage ‘A B I J D C’ (10 feet) as shown in the plaint sketch. The plaintiffs have also sought the consequential relief of permanent injunction including the relief of mandatory injunction directing the first defendant to remove the unauthorized and illegal construction made by him along I J D B-2 passage. The specific case of the plaintiffs is that they are the owners of H.No.13-1-99 and site ‘O K P Q’, wherein their mother constructed a hut and they are having their ingress and egress through the passage which is shown as A B I J D C in the plaint sketch uninterruptedly to the knowledge of one and all in the vicinity. The defendants 1 and 2 made unauthorized and illegal constructions and reduced the width of the passage from 10 feet to 9 feet at C D point and 7’-8” at AB-1 point about one month prior to the date of filing of the suit. The third defendant constructed the house O K C L M N as shown in the plaint sketch by trespassing into the original width of lane unauthorisedly and illegally and further proclaiming to trespass into the passage by making further constructions towards east of the lane C K. The further case of the plaintiffs is that in their absence the defendants made constructions in the site IB2DJ as shown in the plaint sketch. It is also their case that there is no other passage for ingress and egress for the inmates of the house ABH GSTU and the site OKPQ. The plaintiffs reported the matter to the local people, but in spite of intervention of the local people the defendants paid a deaf ear. The plaintiffs got issued a legal notice to all the defendants on 26.07.1999 but there was no reply from the defendants. 4. The plaint plan does not represent the real topography. The second defendant is having her property beyond the gateway towards south which is marked as HIG by the Commissioner. HG marked portion in the plaint plan is not the part of the compound wall which is the house of the second defendant. There is other passage to the west leading to the road to the south of OKPQ property. The property bearing Door No.13-1-101 does not belong to the first defendant, but it belongs to Visarapu Sooramma, W/o Maridayya and daughter of late Appikonda Appayyamma, who is the mother of the first defendant along with her sister Marukurthi Appayyamma. The property has been purchased under two sale deeds dated 18.09.1957 and 04.09.1958 and the respective boundaries with measurements were given in the written statement. Thus, the property covered by the sale deed dated 04.09.1958 is in the occupation of Appayyamma and the property covered by the sale deed dated 18.09.1957 is in the occupation of the first defendant. The first defendant and his mother are living together. Ever since the date of purchase of the property, the family of the first defendant has been in possession and enjoyment of the property up to the points D and B2 as shown in the plaint plan from their predecessors in interest. Recently, the first defendant and his brother and mother demolished old house and raised construction without changing the measurements of old foundation i.e., up to the points D and B2 as per the approved plan. The first defendant is entitled to 21 feet to the east of the disputed passage according to the document as well as enjoyment from 1951. The first defendant laid foundation in his own property and did not stretch into the disputed passage. The plaintiffs had put up a gate attaching the house of the 2nd defendant and when the second defendant requested the plaintiffs to remove the gate, the disputes arose between them and consequently the present suit has been filed. The defendants further case is that though they received notice from the plaintiffs, but subsequently when police visited, both the parties represented their case and the police admonished the plaintiffs and the plaintiffs agreed to remove the gate. The specific case of the defendants is that at no point of time the width of the lane was 10 feet and none of the parties are mindful about the width of the passage and all of them are using the same conveniently for decades without observing the length or width of the passage. 5. The third defendant has also filed written statement contending that originally the property was a thatched house and it was purchased in the year 1923. His further case is that as per the recitals of the sale deed, the southern measurement is eight yards and northern measurement is six yards and out of the same boundaries, he has constructed the slabbed house about 11 years back and there is no change in the eastern boundary and the western boundary. It is also his case that similarly C K wall was also constructed at that time including the door way on the eastern side and steps. His specific case is that he has not trespassed into the passage and that the real dispute is in between defendants 1 and 2 but he was unnecessarily added as a party to the suit. 6. The plaintiffs have filed a rejoinder stating that the survey was conducted in the year 1935 and the municipal street plan was prepared which was revised in 1961 and the same clearly prove that there is a lane with a width of 9 ½ feet even by 1961. The measurements noted in the documents of the defendants, having no reference to the existing physical feature on land as such these measurements cannot be taken into consideration to decide the point in issue. As per the municipal plan prepared in 1935 and revised in 1961, the defendants are entitled to a width of 18 ½ feet and not more than that and 21 feet width is a concoction and they are not in enjoyment of the same. The further case of the plaintiffs is that the defendants wanted to take advantage of the wrong measurements noted in their documents of title. It is also their case that the Commissioner also found that the measurements noted in the title deeds of the defendants dated 18.09.1957 and 04.09.1958 are not tallying with their actual enjoyment on land. The gateway and pillars were constructed about 55 years back and not in 1999 as alleged by the defendants. 7. The trial Court framed the following issues. 1. Whether the plaintiff is entitled for declaration and mandatory injunction? 2. Whether the 2nd defendant permitted the plaintiff to put a gate attaching D.2’s property and across the plaintiffs property in July 1999? 3. Whether the plaint plan is correct? 4. To what relief? 8. On behalf of the plaintiffs the first plaintiff was examined as PW.1 and PWs.2 to 4 were examined and Exs.A1 to A15 were marked. On behalf of the defendants, the first defendant was examined as DW.1 and DWs.2 to 6 were examined and Exs.B1 to B3 were marked. 9. The trial Court, on appreciation of the oral and documentary evidence, came to the conclusion that the defendants wanted to take advantage of their wrong measurements in their documents of title and that the Commissioner also found that the measurements noted in the title deeds of the defendants are not tallying with the enjoyment and measurements on the land and that Ex.B1 the approved plan filed by the defendants themselves shows that there is a 9 ½ feet passage and that Ex.A10 the certified survey street plan proves the case of the plaintiffs. It is also observed that if at all there is a pial within the house portion, but not beyond the wall since nothing is seen towards the west of the second defendant’s house wall into the lane, therefore the theory put forth by the defendants at the time of evidence that there is a pial beyond the western house wall of the first defendant has no basis and ultimately the trial Court decreed the suit as prayed for. 10. Learned counsel for the appellants/defendants submitted that the defendants had constructed their house basing on the measurements of their title deeds and on the same foundations on which their old house was existing and there is no change of level of foundation. His main submission is that the defendants have 21 feet site on eastern side of the disputed passage and that his construction is within this 21 feet of their own site and that the lower Court failed to consider the report of the second commissioner. Thus, his main contention is that the lower Court failed to consider the evidence in proper perspective and that the findings of the lower Court are surmises and conjectures. His further contention is that the Court below failed to consider that there is no evidence to show that the width of the lane is 10 feet. It is also submitted that the municipality is a necessary party and the suit is liable to be dismissed for non-joinder of necessary party. It is also argued that the defendants who are in possession of the property have perfected their title by way of adverse possession. 11. On the other hand, the learned counsel for the respondents/plaintiffs submitted that the lower Court has rightly considered both the oral and documentary evidence. His main submission is that Ex.A10 municipal survey plan is an important document in which the width of the lane is shown as 9 ½ feet. It is also his submission that the first defendant got approved the plan under Ex.B1 from the municipality, wherein the first defendant himself had categorically shown the width of the lane as 9 ½ feet and having obtained municipal permission showing the width of the lane as 9 ½ feet now he cannot say that the width is not 9 ½ feet. His main submission is that the first defendant has encroached 2 ½ feet of the passage and merely because his document shows that the western side is mentioned as 21 feet, he cannot encroach into the passage and construct the house in the public passage. It is also his submission that the Advocate-Commissioner, who visited the plaint schedule property and who got measured the disputed area in the presence of the defendants, had categorically mentioned in his report that the first defendant has encroached into the passage. It is also his submission that Ex.A10 is a document of more than 30 years and therefore the presumption under Section 90 of the Evidence Act has to be drawn. In support of his contention, he relied on a decision reported in Mehatab Begum v. Bhagwandas[1] and also in Adikari Rangarao and others v. Byreddi Tulasamma (Died) and others[2]. 12. The points that arise for consideration are; (1) Whether the lower Court has discussed with regard to Ex.B1? (2) whether the Municipality is a necessary party to the suit? (3) Whether the defendants, basing on the measurements given in their title deeds can say that their construction is within 21 feet as shown in their documents?, (4) Whether Ex.A10 proves the width of the lane and a presumption has to be drawn under Section 90 of the Indian Evidence Act in respect of Ex.A1? and (5) Whether the report of the second Commissioner clinches the issue? 13. First of all, we have to decide as to what is the width of the passage? when the first defendant had constructed the house? and whether he can claim any adverse possession and whether the plaintiffs have proved that the width of the passage is 9 ½ feet or not. 14. It is not in dispute that the disputed passage is AIJDC and the said lane leads to the main road on the northern side. The houses of defendants 1 and 3 are adjoining the main road and the plaintiffs use the passage for ingress and egress. From the evidence it appears that the width of the lane is not uniform at all the points. However, Ex.A10 the approved plan clearly shows the measurements of the lane and corroborates the oral evidence of PWs.1 to 3. According to PW.4, there is an encroachment of 2 ½ feet. Ex.A11 is the plan submitted by the plaintiffs at the time of construction of the septic lavatories and bathrooms which reveals that the width of the lane is 10’. Ex.A10, which is the certified copy of town survey plan for the field No.275 establishes that the width of the disputed lane is 9 ½ feet. Another important document that requires consideration is Ex.B1, which is the approved plan obtained by the first defendant himself. In Ex.B1, admittedly, the defendants have shown the width of the lane as 9 ½ feet. When the learned counsel for the respondents/plaintiffs has argued this point the same is not disputed by the other side. When the first defendant himself at the time of obtaining permission from the municipality had categorically shown the width of the lane as 9 ½ feet, in my considered view, now we cannot go back and say that the width of the lane is not 9 ½ feet but it is less than 9 ½ feet. The recitals of Ex.A10 relied on by the plaintiffs and the recitals of Ex.B1 which is the document of the first defendant himself clearly shows that the width of the lane is 9 ½ feet. Moreover, admittedly, Ex.A10 is a document of more than 30 years. It is a public document. Therefore, as held in Mehatab Begum v. Bhagwandas (1 supra) and Adikari Rangarao and others v. Byreddi Tulasamma (Died) and others (2 supra) presumption under Section 90 of the Evidence Act has to be drawn and the same can safely be relied upon. 15. Once it is established that the width of the lane is 9 ½ feet, now it has to be seen whether the defendants can claim that they have made constructions as per the measurements given in their sale deeds. Of course, it may be a fact that the recitals of their sale deeds show that they have 21 feet of area. Merely because their sale deed shows that they have 21 feet from west to east whether the first defendant can encroach into the lane and make a construction in the lane. In my considered view, even if the recitals go to show that the measurements of his land from east to west is 21 feet, it does not give him any absolute right to encroach into the lane and make a construction. When he was cross-examined with regard to the width shown in Ex.B1 plan he had admitted that there is vacant space of one foot width between the western end of the existing wall and newly constructed foundation. According to him, he removed the pial immediately after he applied for approval of the plan. However, he has admitted that there is no documentary proof to show that there is a pial adjoining his house wall towards the west. It has to be seen that the first defendant (DW.1) admitted that he was present when the municipal surveyor measured the disputed lane and taken measurements and the width of the house from the house of Isarapu Veeranna on the east up to his existing thatched house wall is 18 ½ feet and it is 2 ½ feet from the western edge of the house wall up to the western edge foundation raised by him. 16. As far as existence of pial is concerned, the defendants placed reliance on Ex.B2 photo. However, the trial Court observed that this photo does not show the existence of pial. DW.2 also admitted that he does not know when the pial was removed. The trial Court observed that Ex.B2 photo does not show the pial and further observed that if at all there is a pial to the house of defendant No.2 it is within the house portion and not beyond the wall since nothing is seen towards the west of the second defendant’s house wall into the lane. Thus, the trial Court, on proper appreciation of the evidence, came to the conclusion that the theory put forth by the defendants that there was a pial beyond the western house wall of the first defendant has no basis. 17. Now it is to be seen whether the trial Court has considered the report of the advocate commissioner. The trial Court observed as follows. The plaintiffs placed reliance on the report of the second commissioner and the evidence of PW.1. The second commissioner in her report observed that the foundation of defendant No.1 is within the measurements of his title deed. In fact, PW.1 has stated in his evidence that there is no balance of vacant site for defendant No.1 except the plinth area since his title deed itself is wrong. He has clearly stated that as per the document of the first defendant, his foundation is within the measurements at the time when the police visited the disputed place. If the measurements in the title deed of the first defendant are taken into account there is a balance of 2 ½ feet site beyond his western wall towards the lane, but the evidence on record reveals that this recital as to the measurements is not correct in view of the fact that the width of the lane opposite to this point is 9 ½ feet in Ex.A10 street survey plan which was prepared in 1935 and revised in 1956. The trial Court further observed as follows. It is further proved as incorrect by the admissions made by DW.1 and the documents filed by him that he is not in enjoyment of 21 feet as mentioned in the sale deed and his enjoyment confines only to 18 ½ feet. The correctness of these measurements or their enjoyment can be tested by considering the title deeds of the defendants 2 and 3 also, but the said sale deeds are not filed before the Court. The trial Court also observed as follows. “There is another striking factor to improbablise the defendants case and probablise the plaintiffs case is that of the western house wall of the second defendant. Though the houses of defendants 1 and 2 are shown separately, but the properties were purchased jointly and they are one and joint for all practical purposes as can be verified from the evidence of DW.1. The house wall of the second defendant is in a line with IJ point shown in the plaint plan. Evidently, there is no pial or any other construction beyond this wall into the lane.” 18. Therefore, it cannot be said that the trial Court has not taken into consideration the second commissioner’s report. The trial Court, having taken into consideration the second commissioner’s report and the admissions made by DW.1, found that the defendants 1 and 2 never enjoyed any inch of the property beyond JM line shown in the plaint plan. The said finding of the trial Court appears to be based on well reasoning. 19. The trial Court has also discussed the aspect whether the dispute is with regard to opening of the gate by the plaintiffs and relying upon Ex.A11 plan which showed the existence of gate rejected the contentions of the defendants. 20. Now coming to the aspect whether the municipality is necessary party or not, it is to be seen what is the main dispute between the parties and how the cause of action arose between the parties. The specific case of the plaintiffs is that it is the defendants who encroached into the lane and made a construction. The plaintiffs are seeking a declaration that they have a right of ingress and egress into the lane and also seeking a direction of mandatory injunction to remove illegal constructions made by the first defendant and no relief is sought against the municipality. When no relief is sought against the municipality it appears that the municipality is not a necessary party and therefore it cannot be said that the suit is bad for non-joinder of necessary party. 21. From the above, it is clear that the trial Court, on proper appreciation of the entire oral and documentary evidence on record, particularly based on the second commissioner’s report, Exs.A1, A10 and B1, has rightly decreed the suit against the defendants 1 and 2/appellants herein, and I do not find any illegality or illegality to interfere with the well reasoned judgment passed by the trial Court. 22. The appeal is devoid of merit and the same is, accordingly, dismissed. However, in the circumstances, no costs. ______________________ B. CHANDRA KUMAR, J. Date: 02.09.2010 Nsr [1] 2009-ALT-1-563 [2] 2004(1) An.W.R. 297 (A.P)