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2005 DIGILAW 1200 (AP)

Sabbu Yella Anjaneyulu v. Uppari Lakshmanna

2005-12-20

C.Y.SOMAYAJULU

body2005
( 1 ) THIS second appeal arises out of the judgment and decree in a. S. No. 103 of 1988, on the file of the court of Subordinate Judge, Nandyal, reversing the judgment and the decree passed by the Court of the Principal District munsif, Nandyal in O. S. No. 294 of 1983. ( 2 ) FOR the sake of convenience, i would hereinafter refer the parties as they are arrayed in the trial Court. ( 3 ) PLAINTIFF filed the suit against the defendant seeking a decree of perpetual injunction restraining the defendant from opening spout No. 2 in CD wall and for a mandatory injunction for removal of spout No. l of the CD wall as shown in the plaint plan, alleging that the defendant has while reconstructing his house, after demolition of the old house, raised the height of his roof and had fixed S-1 spout and is about to open S2 spout for discharging rain water falling on his roof, on to the roof of his house though he has no such right as prior to reconstruction of his house the rain water from house of the defendant was being discharged towards east. ( 4 ) DEFENDANT filed his written statement, inter alia, contending that the roof of his house is higher in level than that of the roof of the house of plaintiff and from times immemorial the rain water falling on his roof is being discharged on to the roof of the plaintiff, and so he has acquired an easementary right to discharge the rain water from his house on to the roof of the house of the plaintiff, and as his house became dilapidated, he, after obtaining permission from the Gram panchayat, demolished the old house and re-constructed the new house and fixed the spouts at the places where the earlier spouts were existing and so the plaintiff is not entitled to any relief. ( 5 ) IN support of his case, plaintiff examined himself as PW. l and two other witnesses as PWs. 2 and 3 and marked exs. A. l to A. 5. In support of his case the defendant examined himself as DW. l and two other witnesses as DWs. 2 and 3 and marked Ex. B. l. The trial Court, basing on the evidence adduced, granted decree in favour of the plaintiff. l and two other witnesses as PWs. 2 and 3 and marked exs. A. l to A. 5. In support of his case the defendant examined himself as DW. l and two other witnesses as DWs. 2 and 3 and marked Ex. B. l. The trial Court, basing on the evidence adduced, granted decree in favour of the plaintiff. On appeal by the defendant, the appellate Court reversed the decree of the trial Court and dismissed the suit. Hence the second appeal. ( 6 ) SINCE the First Appellate Court reversed the decree of the trial Court, the point for consideration in this second appeal is:"whether the appreciation of evidence by the first appellate Court while reversing the decree of the trial Court is correct and if the plaintiff is entitled to the injunctions sought. " ( 7 ) THE main contention of the learned Counsel for the plaintiff is that since the defendant failed to establish his case by cogent evidence that he acquired on easementary right to discharge the rain water from his house on to the roof of the house of the plaintiff, the first appellate court was in error in reversing the well considered judgment of the trial Court. It is also his contention that the defendant while submitting the plan for approval of the Gram Panchayat for the new house has shown the spouts, for discharging rain water, towards the east and that fact clearly cuts as the roof of the defence of the defendant and so the contention of the defendant that he acquired right of easement to discharge rain water towards north on to the roof of the plaintiff, cannot be accepted and so the decree of the first appellate court is un-sustainable. ( 8 ) THE contention of the learned counsel for the defendant is that in view of the unimpeachable evidence of DWs. 2 and 3, read with the evidence of DW. l who is closely related to the plaintiff, the finding of the first appellate Court that the defendant acquired easementary right to discharge the rain water on to the roof of the plaintiff needs no interference more so because the admitted case is that houses of both the parties earlier belonged to the same family. l who is closely related to the plaintiff, the finding of the first appellate Court that the defendant acquired easementary right to discharge the rain water on to the roof of the plaintiff needs no interference more so because the admitted case is that houses of both the parties earlier belonged to the same family. ( 9 ) IF the predecessors in title of the defendant acquired a right of easement to discharge the rain water from their roof, on to the roof of the plaintiff, the sale deed executed in favour of the defendant should have contained a recital about that easementary right. For reasons best known to the defendant, he did not produce the sale deed in his favour into Court. So an inference has to be drawn against him, and it can be presumed that the sale deed in favour of the defendant does not contain a recital relating to the easement to discharge rain water on to the roof of the plaintiff. Plaintiff produced Ex. A. 2, a copy of the plan approved by the Gram panchayat, while granting permission to the defendant to construct a house in place of the old house purchased by him. The said Ex. A. 2 shows that the defendant intended to open two spouts on the eastern side of the roof. If really, the defendant and his predecessors in title have been discharging the rain water on to the roof of the plaintiff and if really the defendant had acquired a right of easement to discharge rain water on to the roof of the plaintiff, defendant would have shown the spouts on the CD wall which in on the north and would not have shown them on the eastern side. This crucial fact is not taken into consideration of the first appellate court. Failure of the first appellate Court in not taking into Ex. A2, which is a very important piece of documentary evidence, into consideration resulted in an erroneous judgment. First appellate Court ignoring documentary evidence, and relying on the oral evidence for reversing the decree of the trial Court is highly improper, as it is well known that documentary evidence has to be preferred to oral evidence, and oral evidence contrary to the documentary evidence has to be ignored. Since Ex. First appellate Court ignoring documentary evidence, and relying on the oral evidence for reversing the decree of the trial Court is highly improper, as it is well known that documentary evidence has to be preferred to oral evidence, and oral evidence contrary to the documentary evidence has to be ignored. Since Ex. A. 2 which is the document of the defendant himself belies the plea of his acquiring easementary right, the first appellate Court was in error in reversing the decree of the trial Court, and so I hold that the defendant failed to establish that he acquired a right of easement to discharge the rain water on to the roof of the plaintiff and so the plaintiff is entitled to the mandatory and perpetual injunction sought by him. The point is answered accordingly. ( 10 ) IN the result, the second appeal is allowed and the decree of the First appellate Court is set aside and the decree of the trial Court is restored. In the facts and circumstances of the case, parties are directed to bear their own costs.