THE HONOURABLE SRI JUSTICE M. LAXMAN SECOND APPEAL No.348 of 2001

JUDGMENT:

1. This Second Appeal challenges the judgment and decree in A.S.No.19 of 1999 on the file of the Senior Civil Judge, Sattupalli dated 13.03.2001, wherein and whereby the judgment and decree dated 16.09.1999 passed in O.S.No.60 of 1992 on the file of Junior Civil Judge, Madhira was reversed. The present appellant filed the above suit for injunction and the injunction suit was partly allowed and part of the prayer was dismissed.

2. Aggrieved by the same second defendant preferred an appeal. The appeal was allowed and the said judgment in the suit was reversed. Hence the present second appeal.

3. The appeal was admitted on the substantial question referred in ground No.8 of second appeal which is hereunder:

“That the learned appellate Senior Civil Judge at Sattupalli since has committed the apparent legal error in dismissing the suit of the appellants, solely on the ground that the appellants had not altered the extent of the suit land from Ac.6.11 guntas, as claimed in the suit, to Ac.5.24 guntas as was found by both the commissioners and this being the question of law as to discretion of the Court in moulding the relief and granting any relief other than the one prayed in the suit, and in interpretation of the law on this aspect, since the learned Appellate Senior Civil Judge has committed grave error and this being the question of law involved in this appeal, the appellants are entitled to file this appeal before this Court for the correction of such legal error committed by the learned Senior Civil Judge at Sattupalli. ”

4. The procedure adopted is not correct. The Court has to frame the substantial question of law. Therefore the said substantial question is framed as follows:

1. Whether the findings of the first appellate Court in reversing the judgment of the trial Court on the ground that boundaries were not altered in consonance with the Commissioner’s report suffers from any perversity?

5. For the sake of convenience the ranks of the parties, as are referred in the suit is maintained.

6. The case of the plaintiff is that plaintiff was the absolute owner and possessor of land to an extent of Ac.6.11 guntas forming part of 254/RU, Rejerla Village, Hamlet of Anjanapuram Gram Panchayat, Tallada Mandal, Khammam District (hereinafter referred to as “suit schedule property”) and he has been in possession of such a land. When the defendant tried to intervene with his possession, the present suit is laid on.

7. The case of the second defendant is that the plaintiffs are not in possession of Ac.6.11 guntas and the boundaries given by them are also not correct. The actual boundaries are as follows:

East: Vagu West: Land of Anumolu Raghaiah (D-1)and Anamolu Sarojini.

North: Vagu South: Land of Anumolu gopaiah (father of D1) and beyond that the land of Anumolu Sarojini.

An extent of Ac.3.00 was eroded and washed away in the stream (vagu) on the northern side and eastern side. According to him, the stream is running on the northern and eastern side of suit schedule property and in the running of the water, soil was eroded to an extent of Ac.3.00 guntas and the remaining extents were under the cultivation of plaintiffs and not Ac.6.11 guntas as pleaded by them. Therefore he sought dismissal of the injunction suit.

8. The court below has framed the following issues: 1. Whether the plaintiffs are in possession and enjoyment of Ac.6.11 guntas out of Sy.No.254/Ru?

2. Whether Ac.6.11 guntas of land has fallen to the share of the plaintiffs as alleged?

3. Whether the boundaries given by the plaintiffs are true and the plaintiffs are in possession and enjoyment of the full extent of the land?

4. To what relief?

9. On behalf of the plaintiffs PW’s 1 to 3 were examined and Ex.A1 to A24 were marked and on behalf of the defendants DW1 to DW5 were examined and marked Ex.B1 and B2 and Ex.C1 to C7 in the trial Court.

10. The trial Court, on the basis of evidence on record found that the plain