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2006 DIGILAW 1035 (AP)

Karri Marriyamma v. Penumatcha Ramamma

2006-08-29

L.NARASIMHA REDDY

body2006
JUDGMENT :-Defendants 3 and 4 in O.S. No.1 132 of 1983 on the file of the District Munsif, Vijayawada filed this second appeal. The deceased first respondent and her son, the second respondent, filed the suit for the relief of perpetual injunction restraining the appellants herein and their vendor, who was impleaded as the first defendant, from causing obstructions in the site lying in between the lines JKL and TADMPU in the plaint sketch and for mandatory injunction directing the appellants herein to remove the thatched sheds raised in the portion shown in the plaint sketch. 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. 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 for the second respondent (second plaintiff) did survive and the trial Court committed an irregularity in dismissing the suit, as a whole. He submits that the trial Court appointed a Commissioner, who, after conducting local inspection, submitted a report and the same became part of the record. He submits that the trial Court appointed a Commissioner, who, after conducting local inspection, submitted a report and the same became part of the record. The learned Counsel points out that the report submitted by the Commissioner totally agreed with the plaint sketch and buttressed the contention of the second respondent and that no exception can be taken to the judgment of the lower appellate Court. 8. As observed earlier, though the suit was filed by respondents I and 2, by the time it came up for hearing, the first respondent died and her legal representatives were not brought on record. Therefore, the suit survived vis-a-vis the second respondent. The trial Court dismissed the suit and the lower appellate Court allowed the appeal preferred by the second respondent. 9. From the contentions advanced on behalf of the parties before this Court, three questions arise for consideration, namely :- (a) whether the death of the first respondent herein resulted in abatement of the suit as a whole ? (b) whether the suit was not maintainable without impleading the Government as a party ? and (c) whether the second respondent established his claim in the suit ? 10. So far as the first contention is concerned, it is not in dispute that the first respondent was represented by her G.P.A. and that she died during the pendency of the suit. After her death, no steps were taken to bring her legal representatives on record and incidentally the G.P.A. was none other than her younger son. The trial Court named an issue touching on the consequence of the death of the first respondent and held it against the second respondent also. The right of access to the road, pleaded in the suit, is individual in its purport. The cause of action in the suit was individual in nature and the death of the first respondent did not bring about a total abatement. Further, it should not be forgotten that the second respondent is none other than the son of the first respondent. Apart from that, he made an independent claim of his own in the suit. Therefore, the suit cannot be said to have abated as a whole, on account of the death of the first respondent. 11. Further, it should not be forgotten that the second respondent is none other than the son of the first respondent. Apart from that, he made an independent claim of his own in the suit. Therefore, the suit cannot be said to have abated as a whole, on account of the death of the first respondent. 11. So far as the second question is concerned, it is urged on behalf of the appellants that the relief claimed in the suit is in the nature of easementary rights and unless the Government was impleaded as a party, it ought not to have been entertained. A perusal of the prayer in the suit discloses that the grievance of the respondents herein was about the obstruction caused to them by the appellants and their vendor. No relief in the form of declaration of their easementary rights was claimed. They specifically pleaded that the only access to all the three plots, including the one, sold in favour of the appellants herein, was Budameru site and that the appellants have obstructed the access of the respondents to the road. At any rate, the respondents did not complain of any obstruction on the part of the Government. No plaintiff can be compelled to implead a party, against whom he does not have any grievance. Therefore, it cannot be said that the suit was not maintainable without impleading the Government as a party. 12. Now comes to the third question, which had a bearing on the merits of the matter. It is true that the second respondent herein alone was examined as P.W.I and he spoke extensively to the facts pleaded in the plaint as well as the plaint sketch. Without any corroboration, it would be difficult to accept such a version. However, the record discloses that the trial Court appointed a Commissioner and the said Commissioner, in turn, submitted a detailed report as well as sketch, after conducting inspection. 13. The learned Counsel for the 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. 13. The learned Counsel for the 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. The 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 the 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 the Court from taking the report into account. 14. The lower appellate Court had compared the version of the plaintiffs as presented in the plaint sketch and deposition of P.W.1 on the one hand, and the report of the Commissioner on the other; and found that there is a clear agreement between both of them. In that view of the matter, it cannot be said that the 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 the Budameru site. They were not able to sustain or substantiate their action. Apart from being an encroachment to the Government site, the constructions made by the appellants have obstructed the only access of the second respondent to the public road. Therefore, no exception can be taken to the decree granted by the lower appellate Court. 15. This Court does not find any material defect or error of law in the judgment rendered by the lower appellate Court. 16. The second appeal is accordingly dismissed. There shall be no order as to costs.