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2006 DIGILAW 1150 (AP)

Gurram Sanjappa v. Gurram Pedda Thippaiah (died)

2006-09-19

P.S.NARAYANA

body2006
JUDGMENT :-This Court on 16-8-2006 admitted the second appeal on the following - substantial questions of law raised in Ground Nos. 1, 3 and 4 of the Memorandum of Grounds of Second Appeal : 1. Whether the lower Appellate Court acted legally in confirming the decree and judgment of the trial Court and granting a relief of declaration of the plaintiffs right of way even though all the owners of the pathway have not been imp leaded as parties to the suit? 2. Having regard to the fact that the plaintiff failed to prove that he was using the suit rastha, whether the Courts below acted legally in holding that the plaintiff was using the suit rastha ? 3. Whether the lower appellate Court acted legally in partly decreeing the suit even though one of the owners of the property has not been impleaded as party to the suit? 4. Whether the relief of permanent injunction is divisible and whether the Court is justified in granting the relief of permanent injunction in respect of a portion of the defendants property ? 2. Sri O. Manohar Reddy, the learned Counsel representing the appellants had taken this Court through the findings recorded by the Court of first instance and also the appellate Court and would contend that in the absence of acceptable evidence to prove the case of the plaintiff, decreeing the suit is bad in law. The learned Counsel also had further explained that even otherwise the Court of first instance decreed the suit with costs and the same was modified by the appellate Court and hence it cannot be said that the findings recorded by both the Courts below are concurrent findings. The learned Counsel also explained that the prior litigation referred to would not operate as res judicata and placing reliance on such judgments and findings recorded therein are unsustainable. The learned Counsel also pointed out to the relevant portions of the findings of the Court of first instance and also the appellate Court and would further contend that at any rate this splitting of the relief and granting the relief a portion cannot be sustained. 3. The learned Counsel also pointed out to the relevant portions of the findings of the Court of first instance and also the appellate Court and would further contend that at any rate this splitting of the relief and granting the relief a portion cannot be sustained. 3. Sri Prasad, the learned Counsel representing the present respondents in the present second appeal, the legal representatives of the plaintiff, would contend that as far as the declaratory relief is concerned, the declaration as such was granted and the same was confirmed even by the appellate Court, but as far as the relief of permanent injunction is concerned, the same was modified inasmuch as the owner of the AB property which falls in a different survey number, had not been impleaded. However the Counsel would submit that the appellants are not much aggrieved of that modified order made by the appellate Court and in that view of the matter, inasmuch as the findings recorded by both the Courts below being concurrent findings and further in view of the fact that the parties are close relatives i.e., brothers, and these respective properties had fallen to their shares for convenient enjoyment the respondents are entitled to exercise the right of way especially in the light of Section 13 of the Indian Easements Act 1882. 4. Heard the Counsel. 5. One Gurram Pedda Thippaiah filed the suit O.S. No.135/83 on the file of District Munsif, Uravakonda praying for declaration of right of way along ABCDEF shown in the plaint plan in S. Nos.33-5 and 33-4 of Shaikshanipalli to reach the plaintiffs land in S. No.33/1 of Shaikshanipalli and for ingress and egress therefrom for taking carts, yokes, bulls, men and cattle and for permanent injunction restraining the defendant, his men, servants, agents and heirs from interfering with the plaintiffs right of way along ABCDEF for taking carts, yoked, bulls, cattle and for costs of the suit. The Court of first instance on appreciation of evidence, the evidence of P.W.1 to P.W.3, D.W.1 to D.W.3 and Exs.A-1, A-2 and A-3, ultimately decreed the suit with costs. The Court of first instance on appreciation of evidence, the evidence of P.W.1 to P.W.3, D.W.1 to D.W.3 and Exs.A-1, A-2 and A-3, ultimately decreed the suit with costs. Being aggrieved of the said judgment and decree the defendant preferred appeal A.S. No.139/88 on the file of District Court, Anantapur which was subsequently withdrawn and made over to the Court of Principal Subordinate Judge, Anantapur and the same was renumbered as A.S.No.78/94 on the file of Principal Subordinate Judge, Anantapur and the appellate Court on appreciation of the contentions of both the parties dismissed the appeal, but however, modified the permanent injunction restricting it to the rastha marked as BCDEF as shown in EX.A.1 plan and negatived the relief of permanent injunction in relation to AB in EX.A.1 plaint plain. Aggrieved by the same the present second appeal is preferred. During the pendency of the appeal A.S.No.78/94 the respondent in the Appeal, the plaintiff in the suit, died and legal representatives were brought on record in I.A. No.122/92, dated 26-3-1993. 6. It was pleaded in the plaint as hereunder : The plaintiff and the defendant are brothers being sons of late Hanumppa. Late Hanumappa had six sons viz., Pedda Thippaiah (plaintiff), Chinna Thippaiah, Pedda Venkatarmanappa, Chinna Venkataramanappa, Venkataswamy and Sanjeevappa (defendant). These brothers divided their ancestral properties about 20 years ago by metes and bounds. After division to evidence the partition, these brothers got executed a memorandum dated 20-5-1964. S.Nos.33 and 35 and a well and its surrounding sites situate in S.No.32 (in South-Eastern comer portion of S.No.32) of Shaikshanipalli were the joint family properties that were divided along with other properties about 20 years ago. The lands S.Nos.33 and 35 were sub-divided and the plaintiffs portion was assigned S.No.33-1 and the defendants portion was assigned S.Nos.33-5 and 35-4 in 1964. The well portion in S.No.32 was kept joint. It was agreed that a channel of 3 yards in width is provided in S.Nos.33-5 and 35-4 belonging to the defendant to all the brothers near the Northern boundary in these lands to the South of S.Nos.33-1, 33-2, 33-3, 33-4, 35-2 and 35-3 to enable all the brothers to make use of the well water and the rastha with 3 yards in width has to be provided as shown as AB.C.D.E.F. in the plan to be made use of by all the brothers. The rastha portion D.E.F. is to the South of the channel. The rastha and channel were provided about 20 years ago at the time of partition and are also set out in the memorandum of partition dated 20-3-1964. Ever since, all the brothers were making use of the channel and rastha AB.C.D.E.F. as of right as easement. The easementary right of way along A.B.C.D.E.F. in S.Nos.33-5 and 35/4 is an easement of necessity arising out of severance of tenements. There is no other rastha to the plaintiff to reach his land in S.No.33-1. Out of spite, the defendant filed a suit O.S.No.59/74 on the file of the Court of the District Munsif, Gooty against the plaintiff and another brother Pedda Venkataramanappa restraining them from entering S.Nos.33-5 ad 35-4 and the defendants therein pleaded the right of way along AB.C.D.E.F. and the channel rights and accepting the contentions of the defendants thereon the suit O.S.No.59/74 was dismissed with costs on 31-10-1977. Later the defendants unsuccessfully filed appeal to the District Court, Anantapur which was also dismissed. The decision in O.S.No.59/74 operates as res judicata and the defendant cannot dispute the existence of the easementary right of way along AB.C.D.E.F. The plaintiff, defendant and the other brothers are making use of the way along AB.C.D.E.F. to reach their respective lands for taking carts, yoked bulls, men and cattle for agricultural purposes. The rastha A.B.C.D.E.F. branches of to North from Shaikshani palli, Uravakonda road. Due to spite and ill-will, the defendant is bent upon giving troubles to the plaintiff for passage to S.No.33-1 along A.B.C.D.E.F. and two days ago attempted to obstruct the plaintiff from making use of the rastha. The plaintiff has to keep his garden land S.No.33-1 fallow if the rastha is obstructed and the plaintiff had raised cholam three months ago which has to be harvested now and the produce has to be carted to his house. There is no other rastha to the plaintiff to reach this land except the suit rastha A.B.C.D.E.F. and the plaintiff has to keep his land fallow if the rastha is obstructed. 7. The appellant herein as defendant in O.S. No.135/83 aforesaid filed written statement averring that the memorandum of partition is inadmissible in evidence and even according to the said document this defendant has to get Acs.2-38 cents in S.No.35 but actually this defendant was given only one acre in that survey number. 7. The appellant herein as defendant in O.S. No.135/83 aforesaid filed written statement averring that the memorandum of partition is inadmissible in evidence and even according to the said document this defendant has to get Acs.2-38 cents in S.No.35 but actually this defendant was given only one acre in that survey number. Likewise, the rastha noted in that document was not actually provided in the land. All the brothers are reaching their portions of the lands through a rastha in S.No.39 which is a poramboke land. It was agreed to have a channel of width of one foot only on the Northern boundary of S.Nos.33-5 and 35-4. According to the plaint alleged memorandum of partition the defendant has to get S.Nos.35-1, 35-2 and 35-3. These three sub-divisions are also to be given to this defendant, but those subdivisions 35-1, 35-2 and 35-3 were allotted to the share of Pedda Venkatramanappa, Chinna Venkataramanappa and Venkata Swamy. Due to that change in partition the suit rastha A.B.C.D.E.F. was cancelled and orally it was agreed that all the six brothers should reach their portion of lands from P.C. Pyapili rastha through S.No.39. The suit A.B.C.D.E.F. rastha was never used by any of the six brothers. The rastha is non-existing. The plan filed by the plaintiff is not correct. There is no rastha as A.B.C.D.E.F. as shown in the plaint plan. The joint family land was divided by metes and bounds prior to 1964 is false, but actually the division took place in the year 1965. As per that oral partition sub-division of lands was effected in August 1965. The memorandum of partition was not acted upon and it was rejected by all the six brothers. Therefore the rastha claimed by the plaintiff is not existing from the year 1964. The plaintiff and his brothers are making use of the channel to irrigate their portions of lands to a width of one feet at the bottom and two feet at the top. The allegation that all the brothers were making use of the rastha A.B.C.D.E.F. as of right as an easement is not true. There is no easementary right of way all along B.C.D.E.F. in S.Nos.35-5 and 35-4. The allegation that there is no other rastha to the plaintiff to reach his land S.No.33-1 is false. There is no easement of necessity as alleged. There is no easementary right of way all along B.C.D.E.F. in S.Nos.35-5 and 35-4. The allegation that there is no other rastha to the plaintiff to reach his land S.No.33-1 is false. There is no easement of necessity as alleged. The defendant had filed a suit O.S.No.59/ 74 in Gooty District Munsifs Court. But it was dismissed on technical grounds that all the brothers were not made parties to the said suit. In that suit the right of way along BCDEF was recognized is false. The decision in O.S.No.59/74 operates as res judicata is not correct. This suit also is liable be dismissed on the same ground that all the brothers are not made parties to the suit as all the brothers are proper and necessary parties to this suit. The plaintiff, defendant and other brothers were making use of the way along ABCDEF to reach their respective lands by taking carts, yoked bulls, men and cattle for agricultural purposes is false. The defendant has got every right to obstruct the plaintiff to make a new rastha all along BCDEF as noted in the plaint plan. The plaintiff has got rastha along S.No.39 through the P.C. Pyapili rastha. There is no necessity for the plaintiff to keep his land fallow. The suit was filed only to harass the defendant as a counterblast to take vengeance as the defendant filed a criminal complaint in C.C.No.35/83 for the theft of the coconuts committed by the plaintiff and his relations. There is no cause of action for the suit. The plaintiff is not entitled for any declaration of right of way along BCDEF in S.Nos.33-5, 33-4 as noted in the plaint plan. The rastha in S.No.39 is being used for the last 18 years and even prior to the partition by the ancestors. 8. On the strength of these pleadings, the following Issues were settled : I. Whether the plaintiff is entitled to injunction as prayed for? 2. To what relief? On behalf of the plaintiff P.W.1 to P.W.3 were examined and Exs.A-1 to A-3 were marked. Likewise, D.W.1 to D.W.3 were marked and EX.B-1 was marked. The Court of first instance appreciated the oral and documentary evidence at length and ultimately decreed the suit as prayed for. 2. To what relief? On behalf of the plaintiff P.W.1 to P.W.3 were examined and Exs.A-1 to A-3 were marked. Likewise, D.W.1 to D.W.3 were marked and EX.B-1 was marked. The Court of first instance appreciated the oral and documentary evidence at length and ultimately decreed the suit as prayed for. In appeal, the appellate Court framed the Points for consideration at Para-9 and discussed the oral and documentary evidence available on record commencing from Paras 11 to 14 and ultimately while dismissing the appeal modified the permanent injunction to some extent as already referred to supra. Both the Courts had recorded findings that the existence of the alternative rastha to reach the lands had not been established and the oral evidence let in by the defendant also had been appreciated and the same had been negatived. The evidence of P.W.! and the other brothers who were examined as P.W.2 and P.W.3 also had been appreciated and findings had been recorded. Apart from all these aspects, yet another important aspect is that denying the same right, it appears, the defendant herein, appellant in the present second appeal, filed O.S.No.59/74 on the file of District Munsif, Gooty and the same was dismissed and the matter was carried in Appeal and the same also resulted in dismissal. So, the selfsame controversy in a way was put into issue between the parties and this aspect also was taken into consideration. However, the appellate Court had modified the relief of permanent injunction recording reasons why that portion of the relief cannot be granted. In the light of the reasons recorded by both the Courts on appreciation of the oral and documentary evidence, the evidence of P.W.1 to P.W.3, D.W.1 to D.W.3 and also EX.A-l plaint plan, EX.A-2 certified copy of judgment in O.S. No.59/74 and EX.A.3 Commissioners report along with plan and in the light of Section 13 of the Indian Easements Act 1882, this Court is of the considered opinion that the findings recorded by both the Courts below need not be found fault and accordingly the said findings are hereby confirmed. Accordingly the second appeal shall stand dismissed. However in view of the close relationship between the parties, this Court makes no order as to costs.