HON’BLE SRI JUSTICE A. GOPAL REDDY SECOND APPEAL No.965 of 2010 Dated: 01-10-2010 Between: Manepalli Gangadhara Rao & others …Appellants AND Paramata Satyanarayana & Another Respondents. This Court made the following: HON’BLE SRI JUSTICE A. GOPAL REDDY SECOND APPEAL No.965 of 2010 JUDGMENT: Unsuccessful plaintiffs before the Courts below filed this second appeal challenging the judgment and decree passed by the Senior Civil Judge, Amalapuram in A.S.No.52 of 2001, dated 12.3.2009, whereby the appeal filed by the plaintiffs was dismissed confirming the judgment and decree passed by II Additional Junior Civil Judge, Amalapuram in O.S.No.2 of 1999, dated 26.2.2001 dismissing the suit of the plaintiffs filed for permanent injunction. For the sake of convenience, the parties hereinafter will be referred to as per their array before the trial Court. The plaintiffs instituted the above suit for permanent injunction restraining the defendants from interfering with their peaceful possession and enjoyment over the plaint ABCD schedule items. The plaint averments disclose that plaintiffs 1 to 6 are the brothers and plaintiff No.7 is their mother. They have got house property and site situated in R.S.No.171/2B and 169/2B in an extent of Ac.0.17 cents and Ac.0.40 cents respectively. Manepalli Srirama Murthy is the father of the plaintiffs 1 to 6 and husband of first defendant; that Manepalli Srirama Murhty was having another brother by name Veerabrahmam who died long back. The said property is the absolute property of late Srirama Murthy and Veerabrahmam. Srirama Murhty having purchased the share of Veerabrahmam became the absolute owner of the said property. One Kamakshamma is the mother of late Srirama Murthy, and that they mortgaged the property to one Chinthalapudi Nagaraju under a registered mortgage, dated 21.2.1940 and subsequently, it was discharged. Later, Srirama Murthy constructed a house and also a sofa like structure shown as C2,C3,C4,C5,C.6,C7 and C.8. The wall was constructed long back along with the house shown as A, A.1, C, C.1 in the plaint plan with a width of 4”. While constructing the house in R.S.No.169/2B, a site was left upto D, D1, C and subsequently, the plaintiffs constructed a wall. The defendants, who are having site in R.S.No.171/1 threatening them, constructed a house on the South-West corner leaving site towards South and also on East, and that now they are claiming the site upto cattle shed and also the kitchen shown in the plaint plan and the alleged site towards North to D.C. line to a width of 7.5’ or so. In fact, the defendants have no such site and the site if any, is upto E.F. on their North beyond E.F. wall, the defendants are having site of their own. Hence the suit for permanent injunction restraining the defendants from interfering with the possession and enjoyment of the plaintiffs over the suit schedule property. Contesting the suit, the defendants filed a written statement stating that the first defendant purchased an extent of Ac.0.19 cents full extent in R.S.No.171/1 under a registered sale deed, dated 19.4.1983 and since then the defendants have been in possession and enjoyment of the same. The defendants are having site upto kitchen and cattle shed shown in blue colour in the plaint plan. The defendants constructed terraced building leaving site on North and also on the East and have been residing in the said site. In the absence of the defendants in the village, the plaintiffs highhandedly constructed a wall from East to West shown as A, A.1, C, C.1. On return to the village, the defendants questioned the plaintiffs and demanded them to remove the wall. As they failed to remove the same, the defendants applied for survey of the land. The survey was conducted in the presence of plaintiffs as well as defendants and it was found that the defendants are having their site upto cattle shed wall and also kitchen wall towards North. Basing on the said survey, when the defendants demanded the plaintiffs to remove the wall constructed by them, they filed the present suit. Basing on the above pleadings, the trial Court settled the following issues for trial: “1. Whether the plaintiff is in lawful possession of the plaint schedule ‘a’ to ‘d’ properties as on the date of filing of the suit? 2.Whether the plaintiff is entitled for permanent injunction as prayed for? 3. To what relief?” On issue No.1, the trial Court concluded that the possession of the plaintiffs over the disputed site is not lawful and no injunction shall be granted against the true owner who is the first defendant and accordingly negatived the said issue. Consequently, on issue No.2 the trial Court held that the plaintiffs are not entitled to seek any equitable relief of permanent injunction, and accordingly dismissed the suit. On appeal being filed by the plaintiffs, the lower appellate Court on re-appreciation of entire evidence concluded that the plaintiffs themselves shown in their plan attached to the decree that the site situated on North is adjoining to their kitchen shed and the cattle shed, and that with regard to the site situated in R.S.No.171/1 no proof is produced by the plaintiffs that the site is part and parcel of R.S.No.169/2B. Therefore, it was held that the plaintiffs have no right in R.S.No.171/1 and the facts, evidence coupled with the documents positively established that the defendants are having their site upto southern house wall situated to the kitchen wall as well as cattle shed and accordingly dismissed the appeal confirming the judgment and decree passed by the trial Court. As seen from the evidence, P.W.1 in the cross-examination admitted that two years back, the defendants applied for survey and a notice was served on the mother of the plaintiffs by the survey authorities, and that when the survey was conducted, it was found that the defendants are having site upto kitchen and cattle shed. Further P.W.2 also stated in the cross-examination that after completion of wall D.C., they (plaintiffs) got measured the property as F.M.B. and it was found that the defendants’ site in R.S.No.171/1 is in their (plaintiffs) possession, which is contrary to the evidence of P.W.1. Under these circumstances, the Courts below, on appreciation of the oral and documentary evidence in proper perspective dismissed the suit of the plaintiffs. The concurrent findings reached by both the Courts do not give rise to any question of law much less substantial question of law to admit the second appeal. The Second Appeal fails and the same is accordingly dismissed at the stage of admission. No order as to costs. ________________ A. GOPAL REDDY, J. OCTOBER 01, 2010 Tsr.