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2006 Supreme(AP) 969
2007 (1) ALD 127
IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD
L. NARASIMHA REDDY, J.
Karri Marriyamma and another - Appellant
versus
Penumatcha Ramamma and another - Respondent
SA No.398 of 1994
Decided on 29th August, 2006
Counsel appeared : Vivekananda Swamy, Counsel for the Appellant; V.S.R Anjaneyulu, Counsel for the Respondent No.2.
Headnote:
Civil Procedure Code, 1908 – Rule 10 of Order 26 – Civil Law – Land Law - Perpetual Injunction - Mandatory Injunction - Factum of sale - First respondent had three sons i.e., the second respondent, Ramamurthy husband of the first respondent late is said to have acquired an extent of cents of land in Vijayawada by way of gift from his adoptive father. After his death, it was divided into three plots of 16.2/3 cents each, as shown in the plaint sketch and the three sons were allotted one plot each. The plot of the youngest son was shown in the name of his mother, the first respondent herein. According to respondents 1 and 2, the only access to all the three plots to the road from Vijayawada to land covered by a rivulet. It was alleged that Ramamurthy first defendant in the suit sold parts of his plot in of appellants 1 and 2 and they, in turn, had made constructions, obstructing the access to respondents road by encroaching into site – Held, learned Counsel for appellants submits that the said report did not become part of the record, so much so, the Commissioner was not examined as a witness. He contends that the reliance placed by the lower appellate Court upon such a report was without any basis. In this context, it needs to be observed that the report submitted by the Commissioner under Rule 9 of Order 26 C.P.C. becomes part of the record, as is evident from Rule 10 itself necessity for examination of a Commissioner would arise, if only one of the parties disputes the correctness of the report. When no objections are filed to report and when Rule 10 of Order 26 C.P.C. mandates that the report, together with the enclosure shall become part of the record of the suit, the mere fact that the Commissioner was not examined, does not disentitle Court from taking report lower appellate Court had compared the version of the plaintiffs as presented in the plaint sketch and deposition of P.W.1 on one hand, and the report of the Commissioner on the other; and found that there is a clear agreement between both of them matter, it cannot be said that version of P.W.1 was not corroborated. On the other hand, the appellants did not dispute that they have made constructions by encroaching into site – Appeal is accordingly dismissed.
2. The trial Court dismissed the suit through its judgment, dated 27-l0-1987. Aggrieved thereby, the second plaintiff, i.e., the second respondent herein filed A.S. No.73 of 1989 on the file of the II Additional Subordinate Judge, Vijayawada. The appeal was allowed through the judgment, dated 25-4-1994. Hence, the second appeal.
3. The deceased first respondent had three sons i.e., the second respondent, Ramamurthy Raju; and Satyanarayana Raju. The husband of the first respondent late Subba Raju is said to have acquired an extent of Ac.O.50 cents of land in Sy.No.57/1 of Mutyalampadu, Vijayawada by way of gift from his adoptive father. After his death, it was divided into three plots of 16.2/3 cents each, as shown in the plaint sketch and the three sons were allotted one plot each. The plot of the youngest son Satyanarayana Raju was shown in the name of his mother, the first respondent herein. According to respondents 1 and 2, the only access to all the three plots to the road from Vijayawada to Nuzvid is "Budameru site", the land covered by a rivulet. It was alleged that Ramamurthy Raju, the first defendant in the suit (who is not made a party to this second appeal), sold parts of his plot in favour of appellants 1 and 2 and they, in turn, had made constructions, obstructing the access to respondents 1 and 2 to the road by encroaching into Budameru site.
4. In the written statement filed on behalf of the appellants, the relationship of the parties, and the factum of sale of part of the land by one of the brothers, were admitted. The respondents were put to strict proof of the allegation that the appellants have encroached into the Budameru site. It was alleged that the respondents have no vested right to have access through a Government land namely Budameru site.
5. The first respondent was represented by her G.P.A, the younger son by name Satyanarayana Raju. She died during the pendency of the suit and her legal representatives were not brought on record. Therefore, the suit was virtually prosecuted by the second respondent alone. The trial Court dismissed the suit and the appeal preferred by the second respondent was allowed.
6. Sri Vivekananda Swamy, the learned Counsel for the appellants submits that basically, the respondents claimed easementary rights vis-a-vis Budameru site and the suit was not maintainable without impleading the Government, which is the owner of the same. He further contends that except taking a general plea that they have right of access through Budameru site, the respondents did not adduce any evidence and that there was no justification for the lower appellate Court in reversing the well-considered judgment of the trial Court. A further contention is advanced to the effect that with the death of the first respondent herein and the failure on the part of the concerned, to bring her legal representatives on record, the suit, as a whole, abated and the appeal preferred by the second respondent was not maintainable.
7. Sri V.S.R. Anjaneyulu, the learned Counsel for the respondents, on the other hand, submits that there was no dispute as to partition of the house sites, between two brothers and their mother and that the only access for these plots to the road was the Budameru site. He contends that though the suit, insofar as it related to the first plaintiff i.e., the first respondent, abated on account of her death, the cause of action
