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2002 Supreme(AP) 928
Andhra Pradesh High Court
Judges : P.S.NARAYANA
E.Venkataramana Naidu - Appellant
Versus
Mittamarri alias Sogasani Bayya Reddy - Respondent
Decided On : 08-01-02
Headnote:
Civil Law - Civil Suit – Seeking Relief of Permanent Injunction – Code of Civil procedure ,1908 - Plaintiffs filed suit for declaration of title relating to plaint schedule property and for permanent injunction restraining defendants and their men from in any way interfering with plaintiffs peaceful possession and enjoyment of same and also for relief of mandatory injunction directing defendants to remove wall put up at place marked as "d" in plan and for costs of suit - Trial Court on strength of respective pleadings of parties after settling relevant Issues, having examined P. W. I to P. W. 3, D. W. I and d. W. 2 and marking Ex. A-1 to Ex-A-4 and ex. B-1 to Ex. B-7, had arrived at conclusion that plaintiffs are not entitled to relief of declaration of title as prayed for over disputed pathway and also mandatory injunction to remove entire wall at "d" as shown in plaint plan, but had decreed suit so far as declaration of right of plaintiffs to take water through disputed channel and mandatory injunction to remove wall with measurements 1 x feet at drainage channel, are concerned - Aggrieved by said Judgment and decree, both parties had preferred Appeals and appellate Court after framing relevant points for consideration had arrived at conclusion that plaintiffs are not entitled even to said relief and had dismissed suit and aggrieved by same, present second Appeal is filed - Plaintiffs are owners of property described as ABCDE in plaint plan - Site described as JIGKHDE in plaint plan is jointly owned by plaintiffs and defendants - Defendants are owners of house lying East of JG - Site described as IJKHDE is being used as passage by both plaintiffs and defendants for ingress and egress - Except site IJGKHDE there is no other passage for plaintiffs to reach main road - Plaintiffs and their predecessors-in-title have perfected their title by adverse possession and prescription having used same for past over 50 years - Defendants are members of joint family and 2nd defendant is Manager of joint family - Defendants are constructing upstairs - While constructing upstairs highhandedly they removed door frame marked as d in plaint plan during night time and hastily constructed a wall in that place obstructing plaintiffs tenants from entering suit site and reaching bangalore road - It took place about three days back - Next day on information from tenants plaintiffs convened a panchayath wherein defendants agreed to remove wall and allow plaintiffs tenants to pass through site marked as ijgkhde - Defendants as promised did not remove wall and on other hand they are obstructing flow of drainage water through drain marked blue in pencil - Defendants have no right to obstruct plaintiffs drainage to flow through drain marked blue in plaint plan - Plaintiffs and their predecessors- in-title have been draining out their water through drain marked blue in plaint plan from times immemorial and perfected their title by prescription and adverse possession - By way of necessary easement also it is only way - By act of defendants, drainage water is stagnating within plaintiffs premises and plaintiffs tenants are forced to pass through space marked KI in plaint plan as wall in that portion has fallen - Hence plaintiffs filed suit for declaration of their title in respect of plaint schedule properties restraining defendants and their men from interfering with plaintiffs peaceful possession and enjoyment and for grant of mandatory injunction directing defendants to remove wall put up at place marked as d in the plaint plan – Held, Court has been view of fact that findings had been recorded relating to title, report of second Commissioner may not be of much consequence - However, report of first Commissioner is definitely relevant, especially in light of certain specific observations made by him which had been extracted above - It is no doubt true that whether a Commissioner is examined or not, his report forms part and parcel of record and Court is bound to consider same - But, when report of Commissioner is a material piece of evidence and not of general nature, though it may not be mandatory, it is always desirable if such a Commissioner is examined for purpose of elucidating further details relating to topographical features, geographical features or other peculiar features which can be decided by Court only by eliciting such details - In such a context, examination of commissioner also may become relevant upto some extent - As can be seen from findings recorded by appellate Court, appellate Court mainly proceeded on ground of absence of plea and failure to establish plea of adverse possession and plea of easement being inconsistent with plea of ownership - Court had already observed that there cannot be any hard and fast rule in this regard and always courts can mould relief depending upon facts and circumstances of case, granting limited relief though a larger relief is prayed for in suit -In light of respective pleadings of parties, inasmuch as no, specific Issue relating to easementary rights had been settled by court of first instance and no point for consideration had been framed and further in light of reports of commissioners and also notes of inspection of Judicial Officer himself – Court has says that considered opinion that approach adopted by appellate Court in deciding matter and reversing limited relief also cannot be sustained - However, in light of facts and circumstances, inasmuch as a specific - Issue was not framed, Court inclined to frame following Issue - Whether plaintiffs are entitled to easementary rights claimed by them in facts and circumstances of case? in light of framing of this Issue at stage of Second Appeal, Court inclined to remit matter back to appellate Court for purpose of affording opportunity to both parties to let in further evidence to substantiate their respective contentions on aspect of easementary rights - Parties are at liberty to examine Commissioners also, if they are so advised, in this regard - Accordingly, matter is remanded to appellate Court for purpose specified supra - Second Appeal allowed .
( 1 ) THE 3rd plaintiff in O. S. No. 543/97 on the file of Principal District Munsif, madanapalle - the 3rd respondent in a. S. No. 62/87 on the file of Additional district Judge, Madanapalle, is the appellant. Respondents 6 and 7 shown in the present Second Appeal are the co-plaintiffs and the appellants in A. S. No. 62/87 and the defendants in OS No. 543/77 are the other respondents, in the present Second Appeal. The 1st defendant died during the pendency of the said Appeal and his legal representatives were brought on record as per the orders in I. A. No. 30/89 dated 6-9-1989.
( 2 ) FOR the purpose of convenience, the parties will be referred to as "plaintiffs" and "defendants" as arrayed in the trial Court.
( 3 ) THE plaintiffs filed the suit for declaration of title relating to the plaint schedule property and for permanent injunction restraining the defendants and their men from in any way interfering with the plaintiffs peaceful possession and enjoyment of the same and also for the relief of mandatory injunction directing the defendants to remove the wall put up at the place marked as "d" in the plan and for costs of the suit. The trial Court on the strength of the respective pleadings of the parties after settling the relevant Issues, having examined P. W. I to P. W. 3, D. W. I and d. W. 2 and marking Ex. A-1 to Ex-A-4 and ex. B-1 to Ex. B-7, had arrived at the conclusion that the plaintiffs are not entitled to the relief of declaration of title as prayed for over the disputed pathway and also mandatory injunction to remove the entire wall at "d" as shown in the plaint plan, but had decreed the suit so far as the declaration of right of the plaintiffs to take water through the disputed channel and mandatory injunction to remove the wall with measurements 1 x feet at the drainage channel, are concerned. Aggrieved by the said Judgment and decree, both the parties had preferred Appeals and the appellate Court after framing the relevant points for consideration had arrived at the conclusion that the plaintiffs are not entitled even to the said relief and had dismissed the suit and aggrieved by the same, the present second Appeal is filed.
( 4 ) SRI Sunder Rajan, the learned Counsel representing the appellant/3rd plaintiff had fairly submitted that in the light of the concurrent findings recorded by both the courts below relating to the question of title, the said question cannot be seriously canvassed in this Second Appeal. However, the learned Counsel submitted that as far as the reversal of the Judgment and decree of the trial Court, so far as it relates to the easementary right of discharging the drainage water is concerned, the same cannot be sustained. The learned Counsel had commented that the appellate Court had proceeded as though there is no plea in this regard and had pointed out to the relevant pleadings wherein the exercise of these rights and also the easement of necessity had been specifically pleaded in the plaint. The learned Counsel also further in all fairness had submitted that the question of ownership, joint ownership and easement may not go together since these are inconsistent pleas. But however, the learned Counsel would maintain that merely because a larger relief had been prayed for that does not mean that the court, if satisfied on the material available on record, cannot grant another appropriate relief at all. The learned Counsel also had taken me through the findings recorded by the trial Court and also the appellate Court and had submitted that the whole approach of the appellate Court in reversing the judgment of the trial Court is totally unsustainable. The learned Counsel also had taken me through the report of the commissioner and also the findings recorded by the trial Court relating to the personal inspection of the learned Principal district Munsif, Madanapalle and had contended that it is a case where on appreciation of oral and documentary evidence the Court of fir
