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2007 (1) ALD 446
IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD
P.S. NARAYANA, J.
Gurram Sanjappa - Appellant
versus
Gurram Pedda Thippaiah (died) and others - Respondent
SA No.280 of 1996
Decided on 19th September, 2006
Advocate appeared : O. Manohar Reddy, Counsel for the Appellant; R.V. Prasad, Counsel for the Respondents.
Indian Easements Act 1882 - Section 13 - Memorandum of Grounds - Second appeal on the following - Substantial questions of law raised in Ground Nos. 1, 3 and 4 of the Memorandum of Grounds of Second Appeal - Whether lower Appellate Court acted legally in confirming the decree and judgment of the trial Court and granting a relief of declaration of the plaintiffs right of way even though all the owners of the pathway have not been imp leaded as parties to the suit? - Having regard to the fact that the plaintiff failed to prove that he was using the suit rastha, whether the Courts below acted legally in holding that the plaintiff was using the suit rastha ? - Whether the lower appellate Court acted legally in partly decreeing the suit even though one of the owners of the property has not been impleaded as party to the suit? - Whether the relief of permanent injunction is divisible and whether the Court is justified in granting the relief of permanent injunction in respect of a portion of the defendants property ? - learned Counsel representing the appellants had taken this Court through the findings recorded by the Court of first instance and also the appellate Court and would contend that in the absence of acceptable evidence to prove the case of the plaintiff, decreeing the suit is bad in law - learned Counsel also had further explained that even otherwise the Court of first instance decreed the suit with costs and the same was modified by the appellate Court and hence it cannot be said that the findings recorded by both the Courts below are concurrent findings. The learned Counsel also explained that the prior litigation referred to would not operate as res judicata and placing reliance on such judgments and findings recorded therein are unsustainable - learned Counsel also pointed out to the relevant portions of the findings of the Court of first instance and also the appellate Court and would further contend that at any rate this splitting of the relief and granting the relief a portion cannot be sustained – Held plaintiff P.W.1 to P.W.3 were examined and Exs.A-1 to A-3 were marked. Likewise, D.W.1 to D.W.3 were marked and EX.B-1 was marked. The Court of first instance appreciated the oral and documentary evidence at length and ultimately decreed the suit as prayed for. In appeal, the appellate Court framed the Points for consideration at Para-9 and discussed the oral and documentary evidence available on record commencing from Paras 11 to 14 and ultimately while dismissing the appeal modified the permanent injunction to some extent as already referred to supra. Both the Courts had recorded findings that the existence of the alternative rastha to reach the lands had not been established and the oral evidence let in by the defendant also had been appreciated and the same had been negatived. The evidence of P.W.! and the other brothers who were examined as P.W.2 and P.W.3 also had been appreciated and findings had been recorded. Apart from all these aspects, yet another important aspect is that denying the same right, it appears - Evidence of P.W.1 to P.W.3, D.W.1 to D.W.3 and also EX.A-l plaint plan, EX.A-2 certified copy of judgment in O.S. Commissioners report along with plan and in the light of Section 13 of the Indian Easements Act 1882, this Court is of the considered opinion that the findings recorded by both the Courts below need not be found fault and accordingly the said findings are hereby confirmed. Accordingly the second appeal shall stand dismissed. However in view of the close relationship between the parties, this Court makes no order as to costs.
Based on the provided legal document, the court has emphasized that the findings recorded by both the courts below are to be confirmed and are not to be faulted. It has also been noted that the evidence, including the plaint plan and other documentary evidence, was thoroughly appreciated and considered in reaching the decision. The court explicitly states that the findings are upheld in light of the oral and documentary evidence, including the plaint plan, and that the second appeal is dismissed with the court making no order as to costs due to the close relationship between the parties (!) (!) (!) (!) .
Therefore, the court's decision indicates that the plaint plan, which was part of the evidence considered, cannot be regarded as conclusive or determinative in itself. The court's reliance on the entire body of evidence, including oral testimonies and other documentary proof, underscores that the plan alone does not hold decisive weight in establishing rights or facts. As a result, the plan cannot be considered as the sole or definitive basis for establishing the rights or facts in question.
1. Whether the lower Appellate Court acted legally in confirming the decree and judgment of the trial Court and granting a relief of declaration of the plaintiffs right of way even though all the owners of the pathway have not been imp leaded as parties to the suit?
2. Having regard to the fact that the plaintiff failed to prove that he was using the suit rastha, whether the Courts below acted legally in holding that the plaintiff was using the suit rastha ?
3. Whether the lower appellate Court acted legally in partly decreeing the suit even though one of the owners of the property has not been impleaded as party to the suit?
4. Whether the relief of permanent injunction is divisible and whether the Court is justified in granting the relief of permanent injunction in respect of a portion of the defendants property ?
2. Sri O. Manohar Reddy, the learned Counsel representing the appellants had taken this Court through the findings recorded by the Court of first instance and also the appellate Court and would contend that in the absence of acceptable evidence to prove the case of the plaintiff, decreeing the suit is bad in law. The learned Counsel also had further explained that even otherwise the Court of first instance decreed the suit with costs and the same was modified by the appellate Court and hence it cannot be said that the findings recorded by both the Courts below are concurrent findings. The learned Counsel also explained that the prior litigation referred to would not operate as res judicata and placing reliance on such judgments and findings recorded therein are unsustainable. The learned Counsel also pointed out to the relevant portions of the findings of the Court of first instance and also the appellate Court and would further contend that at any rate this splitting of the relief and granting the relief a portion cannot be sustained.
3. Sri Prasad, the learned Counsel representing the present respondents in the present second appeal, the legal representatives of the plaintiff, would contend that as far as the declaratory relief is concerned, the declaration as such was granted and the same was confirmed even by the appellate Court, but as far as the relief of permanent injunction is concerned, the same was modified inasmuch as the owner of the AB property which falls in a different survey number, had not been impleaded. However the Counsel would submit that the appellants are not much aggrieved of that modified order made by the appellate Court and in that view of the matter, inasmuch as the findings recorded by both the Courts below being concurrent findings and further in view of the fact that the parties are close relatives i.e., brothers, and these respective properties had fallen to their shares for convenient enjoyment the respondents are entitled to exercise the right of way especially in the light of Section 13 of the Indian Easements Act 1882.
4. Heard the Counsel.
5. One Gurram Pedda Thippaiah filed the suit O.S. No.135/83 on the file of District Munsif, Uravakonda praying for declaration of right of way along ABCDEF shown in the plaint plan in S. Nos.33-5 and 33-4 of Shaikshanipalli to reach the plaintiffs land in S. No.33/1 of Shaikshanipalli and for ingress and egress therefrom for taking carts, yokes, bulls, men and cattle and for permanent injunction restraining the defendant, his men, servants, agents and heirs from interfering with the plaintiffs right of way along ABCDEF for taking carts, yoked, bulls, cattle and for costs of the suit. The Court of first instance on appreciation of evidence, the evidence of P.W.1 to P.W.3, D.W.1 to D.W.3 and Exs.A-1, A-2 and A-3, ultimately decreed the suit with costs. Being aggrieved of the said judgment and decree the defendant preferred appeal A.S. No.139/88 on the file of Distri
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