JUDGMENT:

This second appeal is filed against the Judgment and decree dated 24.02.2004 in A.S.No.2 of 2003 passed by the learned Senior Civil Judge, Medak, in which the Judgment and decree dated 30.10.2002 in O.S.No.31 of 2000 passed by the learned Junior Civil Judge, Medak was confirmed.

2. Initially, respondent/plaintiff had filed a suit vide O.S.No.31 of 2000, for perpetual injunction and later by way of amendment, modified it as mandatory injunction directing the appellant/defendant to close the dug hole admeasuring 4 feet height and 1 ½ feet width, which is on the western side of the open place of the respondent’s house. The trial Court after considering the arguments of both sides, decreed the suit. Aggrieved by the said Judgment and decree, defendant therein preferred an appeal before the first appellate Court, but the same was also dismissed by confirming the Judgment of the trial Court. Aggrieved by the concurrent findings of both the Courts, defendant before the trial Court preferred the present appeal.

3. The learned Counsel for the appellant/defendant raised the following substantial questions of law:

“a) Whether the Courts below erred in considering the report of the Advocate Commissioner even though the said report was not marked and Commissioner was not examined to prove the Commissioners’ report?

b) Whether the Courts below are justified in decreeing the suit basing upon assumptions and presumptions relating to title and possession of the plaintiff?”

4. The parties herein are referred as plaintiff and defendant as arrayed before the trial Court for the sake of convenience.

5. The plaintiff in the suit stated that she is the absolute owner and possessor of the house bearing No.1-48 and there is open place on the western side of her house. The entire house and the open place measure 95 fts towards North and Southern sides and 78 fts towards East and Western sides, as per the map issued by Sarpanch Thimmaipally-B Gramapanchayath and it was described in the plaint schedule. She also stated that there was open place towards right side of the western corner, which was part and parcel of the suit house and there was a main door to the house to use the open place by the plaintiff from the western side and it was facing towards northern side and the said open place was called as “peradu”. It was used to keep the agricultural equipments and flower trees since long back. The defendant is the agnate in relation and his house is situated at western side of the plaintiffs’ house and rainwater is falling into the open place of the plaintiffs’ house. Taking advantage of the same, defendant was trying to open the door into the western side of the open place of the plaintiff. The defendant had also dug a hole measuring 4 ft in length and 1 ½ ft in width on 29.09.2000, which leads to the western side of the open place of the plaintiff, as such she filed the suit for mandatory injunction.

6. The defendant in his written statement admitted the ownership of the plaintiff and contended that she gave wrong boundaries on the western side, as open place belongs to her. In fact, the open place is adjacent between him and the plaintiff, as such plaintiff ought to have shown the western side as Seri as joint one and the Sarpanch is not competent to issue any plan or ownership certificate. He is also having joint right over the seri-sandhi along with the plaintiff and he is also in possession and enjoyment of the said Seri along with the plaintiff. He denied all other contentions. The width of the Seri is 6 ft 9 inches and there are two windows still existing belonging to him and his door also existing to the said Seri-sandhi. He also stated that plaintiff in order to cover up the link in the plaint, amended the plaint from perpetual injunction to mandatory injunction. The plaint Seri is deemed to be joint family property of the plaintiff and defendant and both of them are having equal right under Easement Act for air, water and light. Plaintiff