JUDGMENT : B.V.L.N.CHAKRAVARTHI This Second Appeal, under Section 100 of the Code of Civil Procedure, 1908, is filed by the unsuccessful appellant/defendant assailing the decree and judgment, dated 21.02.2000, of the learned Subordinate Judge, Tanuku, West Godavari District, passed in A.S.No.39 of 1991. 2. By the said decree and judgment, the learned Subordinate Judge, Tanuku, partly allowed the first appeal with proportionate costs, and had reversed the decree and judgment, dated 28.12.1990 of the learned 1st Addl.Junior Civil Judge, Tanuku, passed in O.S.No.632 of 1981. 3. I have heard the submissions of Sri N.Vijay, learned counsel appearing for the Appellant/Defendant (‘defendant’, for brevity) at the stage of admission and Sri K.Ramesh Babu, learned counsel for respondents/plaintiffs. I have perused the material record. 4. The appeal is coming up for consideration/judgment on the following limited aspects: – ‘Whether the questions, which are raised in the memorandum of grounds of appeal or any other substantial questions of law are involved? and, if so, whether the second appeal deserves to be allowed?’ 5. The appellant is the defendant. The respondents 1 to 6 are the plaintiffs. The parties in this second appeal shall hereinafter be referred to as arrayed in the original suit, for convenience and clarity. 6. To begin with, it is necessary to take note of the respective pleadings/cases of the parties and the events that led to the filing of this second appeal by the defendant. 7. The case of the plaintiffs as is borne out by the material on record, in brief, is that the plaintiffs filed the suit against the defendant for declaration that ‘ABCDEFG’ is a joint lane through which the predecessors in title of plaintiffs and the defendant have been using as a passage for their ingress and aggress to the main road situated on the north. Since ‘ABCDEFG’ is a joint lane through which various families have got a right of passage for their men, cattle, and carts. The width of the lane is to be preserved and the defendant is bound to preserve the width of the road. The plaintiffs have been enjoying the ‘ABCDEFG’ lane from times immemorial and the persons have right of passage should make use of the same in such a way to not to interfere in the free exercise of right of passage for other persons having right to pass through it. The plaintiffs have been enjoying the ‘ABCDEFG’ lane from times immemorial and the persons have right of passage should make use of the same in such a way to not to interfere in the free exercise of right of passage for other persons having right to pass through it. It is further contended that the defendant after purchase of the blue shaded plot, opened a doorway in the wall, ‘EF’ and also constructed steps and pials on either side and opened a vent in the wall and started commencing discharge of used water from his site into the lane and causing nuisance in the lane interfering with the right of free and comfortable usage of right of passage due to stagnation of water etc. The width of the lane is reduced, and no one has got any right to interfere in the width of lane. When the plaintiffs are disputing the matter and demand for removal of the steps, pials, closure of the vent, bode and door way, the defendant promising to comply with the demand and high handedly constructed a wall along side ‘BC’ to a width of 18” at the basement and later 9” and the construction of a wall is a clear encroachment in the joint lane and it reduces the width of lane besides interfering with the free exercise of passage right. The defendant being a powerful man in the village having money and men, proclaiming that he could extend the wall up to ‘A’ and then insert a gate between ‘AG’ annexing the entire lane to his private use. The defendant has no manner of right of interfere in such a way. The 6th plaintiff died after filing of the suit and her legal representatives executed a sale deed in favour of 2nd plaintiff. Hence, the 2nd plaintiff is entitled to the reliefs so far as the property of 6th plaintiff is concerned. Hence, the plaintiffs are entitled to seek declaration and for consequential mandatory injunction to remove the wall along ‘BC’ including the foundation, closure of the vent body and doorway, removal of the pials and steps into the lane. 8. The case of the defendant is that the plaintiffs have no joint right in the suit lane, the plaintiffs are not entitled to use the lane as alleged by them. 8. The case of the defendant is that the plaintiffs have no joint right in the suit lane, the plaintiffs are not entitled to use the lane as alleged by them. When some of the owners, who have house to the east of the lane and who had no right to have ingress and aggress to the suit lane attempted to use it. The defendant’s father filed a suit in O.S.386/1976 on the file of District Munsif Court, Tanuku. A commissioner was appointed, and the commissioner noted the physical features of the locality. The suit was decreed and the boundary wall that used to exist had fallen down some time prior to the filing of the said suit and in order to prevent the persons from ever coming into the land to the east of the lane, the defendant constructed the wall along with boundary line at his own cost and this act can never be termed as interference. The plaintiffs were set up by the defendants in O.S.386/1976. The plaintiffs and the defendants in O.S.386/1976 are close friends and relations. The doorsteps and pials are existing for over four decades and they are not newly set up as alleged. The boundary wall on the south, where in the door ay is existing is in existence for over four decades and to the south of the said boundary wall there is a lane, extends towards west upto the street and towards east joining the north to south there is a lane shown A B C D E F, in the plan. The location and the two terminals of the southern lane are not correctly shown in the plan. It did not stop abruptly. The vent is also existing for over four decades and the water from the defendant’s house and site is being discharged towards south into the joint lane and it used to flow still south wards across the southern lane and defendant and his predecessors acquired an easementary right to discharge the drain and rainwater and it cannot be termed as a nuisance. It is an easementary right acquired by the defendant and his predecessors for the better use of the property purchased by them. The defendant prays for dismissal of the suit with costs. 9. Taking into consideration the above pleadings, the trial Court framed the following issues: 1. It is an easementary right acquired by the defendant and his predecessors for the better use of the property purchased by them. The defendant prays for dismissal of the suit with costs. 9. Taking into consideration the above pleadings, the trial Court framed the following issues: 1. Whether the plaintiffs have title to in the lane and the plaintiffs are entitled to declaration? 2. Whether the plaintiffs are entitled to consequential mandatory injunction? 3. Whether the defendant acquired an easementary right to discharge the drain water? 4. To what relief? 10. At trial, on behalf of the plaintiffs, P.Ws-1 to 5 were examined and Exs.A-1 to A-3 were marked. On behalf of the defendant, D.W-1 was examined and Exs.B-1 to B-10 were marked. 11. On appreciation of pleadings and the oral and documentary evidence, the trial Court dismissed the suit with costs by directing the defendant to put underground pipe from the vent towards south of his property in the lane, so that water could not get stagnated in the lane. The appeal preferred by the defendant against the said decree and judgment was partly allowed by the F irst A ppellate Court, by the decree a n d judgment impugned, andthe decree and judgment of the trial Court was reversed. Aggrieved thereof, the unsuccessful defendant had preferred this Second Appeal. 12. The learned counsel for defendant contended as follows: The lower Appellate Court erred in reversing partly the well considered judgment and decree of the trial Court. The lower Appellate Court erred in holding that ‘ABCDEF’ is a joint lane without noting that the boundary recitals in Exs.B-4, B-5 and B-6, wherein the eastern boundary is mentioned as joint lane merely shows that the lane was joint previously to the various vendors, who sold the appellant/defendant’s father, as those vendors were related to one another. Once the defendant’s father purchased the property covered by Exs.B-4 to B-6 from those vendors, the lane ABCDEF became his sole and exclusive lane and none of the respondents can claim any right to use it. 13. Once the defendant’s father purchased the property covered by Exs.B-4 to B-6 from those vendors, the lane ABCDEF became his sole and exclusive lane and none of the respondents can claim any right to use it. 13. Having so contended, it is submitted on behalf of the appellant/defendant that the following substantial questions of law are involved in this Second Appeal: I) Whether the lower appellate Court ought to have dismissed the suit and the appeal as abated as admittedly plaintiff No.6 died during pendency of the suit itself and no legal representatives of the deceased plaintiff No.6 having been brought on record either in the suit or in the appeal as the cause of action is joint and common to all the plaintiffs? II) Whether the lower Appellate Court erred in perversely appreciating the documentary evidence and misconstruing the documentary evidence to decree the suit partly? III) Whether the lower Appellate Court misconstrued the recitals as “joint lane” in Exs.B-4 to B-6 relating to the eastern boundary when the same rationally ought to men as joint to the vendors there under and not as joint to the plaintiffs? 14. The learned counsel for defendant would submit that the learned I Appellate Judge by mistake allowed the appeal partly, though the case against the 6th plaintiff in the suit stands abated. 15. The learned counsel for defendant would further submit that though the plaintiffs filed the suit for the relief of declaration and mandatory injunction, and the trial Court on merits dismissed the suit. He would further submit that the 6th plaintiff in the suit died pending suit, and her legal representatives were not impleaded to represent the case of the 6th plaintiff and therefore, the suit so far as the deceased-6th plaintiff abated and it became final. 16. He would further submit that the plaintiffs filed the appeal in A.S.39/1991 on the file of Subordinate Judge, Tanuku, challenging the judgment and decree of the trial Court and in the appeal also, the remaining plaintiffs or the legal representatives of the deceased6th plaintiff did not take steps to implead the legal representatives of the deceased-6th plaintiff as appellants to represent the case of the 6th plaintiff. 17. 17. He would further submit that the Appellate Court has no power to proceed with an appeal and to reverse and vary the decree in favour of all the plaintiffs, when the decree proceeds on a ground common to all the plaintiffs or defendants, if all the plaintiffs or the defendants appeal from the decree and any of them dies and the appeal abates so far as he is concerned, as case as when the success of the appeal may lead to the court’s coming to a decision which will be in conflict with the decision between the appellant-defendant and the deceased-plaintiff and therefore, which would lead to the court’s passing a decree which will be contradictory to the decree which had become final with respect to the same subject-matter between the defendant and the deceased-plaintiff. The learned counsel for defendant in support of his arguments relied upon judgment of the Hon’ble Apex Court in the case of Sri Chand and others Vs. M/s.Jagadish Pershad Kishan Chand and others, AIR 1999 SC 1427. 18. The learned counsel for defendant would further submit that the learned 1st Appellate Judge gave a perversive finding with regard to the contents of Ex. B-4, Ex.B-5, Ex.B-6 and Ex.B-8 documents, while appreciating the right of the plaintiffs to claim the disputed pathway as a joint pathway. 19. The learned counsel for plaintiffs would submit that it is an admitted fact that the 2nd plaintiff purchased the property of the deceased-6th plaintiff and therefore, the death of the 6th plaintiff will not have any effect on the suit. He would further submit that the learned 1st Appellate Judge in his judgment discussed the oral evidence adduced by both parties in detail, particularly, the evidence of D.W-1 (defendant) with reference to the contents of Ex.B-4, Ex.B-5, Ex.B-6 and Ex.B-8 and also the finding given by the learned trial judge and arrived at a just conclusion that the disputed pathway is a joint pathway and therefore, the finding of the learned 1st Appellate Judge cannot be held as perversive finding. 20. 20. He would further submit that in this Second Appeal, the appeal against the 5th and 6th respondents-plaintiffs was dismissed for default on 24.09.2002 and 17.02.2009 respectively, and therefore, in view of the argument advanced by the learned counsel for defendant, relying on the judgment of the Hon’ble Apex Court in the case of Sri Chand and others, Appellants Vs. M/s.Jagadish Pershad Kishan Chand and others, the entire Second Appeal be dismissed as the judgment and decree passed by the 1st Appellate Court in favour of the 5th respondent-plaintiff became final, as the appellant-defendant failed to take steps to restore the case against the 5th respondent-plaintiff, as there is a possibility of two inconsistent decrees coming into existence, if the Second Appeal is to be allowed. 21. In the light of above rival contentions, this Court would proceed to decide the above substantial questions of law. 22. QUESTION No.I: The judgment of the 1st Appellate Court dated 21.02.2000 on the file of Subordinate Judge, Tanuku, at page No.5 is as under: “The 6th plaintiff died after filing of the suit and her legal representatives executed a sale deed in favour of 2nd plaintiff. Hence, the 2nd plaintiff is entitled to the reliefs so far as the property of the 6th plaintiff is concerned. Hence, the plaintiffs are entitled to seek declaration and for consequential mandatory injunction to remove the wall along BC including the foundation, closure of the vent body and doorway, removal of the pials and steps into the lane. 23. The Hon’ble Apex Court in the case of Sri Chand and others, Appellants Vs. M/s.Jagadish Pershad Kishan Chand and others, held as under: “If the Court can deal with the matter in controversy so far as regards the rights and interest of the appellant and the respondents other than the deceased respondent, it has to proceed with the appeal aid decide it.” “otherwise, it will have to refuse to proceed further with the appeal and therefore dismiss it. Ordinarily, the consideration which will weigh with the court deciding upon the question whether the entire appeal had abated or not will be whether the appeal between the appellants and the respondents other than the deceased respondent can be said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the court-and the tests to determine this have been described thus: (a) when the success of the appeal may lead to the courts coming to a decision which will be in conflict with the decision between the appellant and the deceased, respondent and therefore which would lead to the courts. passing a decree which will be contradictory to the decree which had become final with respect to the same subject-matter between the appellant and the deceased respondent; (b) when the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the court and (c) when the decree against the surviving respondents, if the appeal succeeds, be ineffective that is to say it could not be successfully executed.” The Hon’ble Apex Court further held as under: “The abatement of an appeal against the deceased respondent means not only that the decree between the appellant and the deceased respondent has become final, but also as a necessary corollary that the appellate court cannot in any way modify that decree directly or indirectly.” The Hon’ble Apex Court also held as under: “When the decree in favour of the respondents is joint and indivisible, the appeal against the respondents, other than the deceased respondent cannot be proceeded with if the appeal against the deceased respondent has abated." 24. Therefore, it is very clear that when a decree in favor of the plaintiffs or defendants is joint and indivisible, the appeal against the decree filed by them, other than the deceased cannot be proceed with, if the appeal against the deceased was abated. 25. It is an admitted fact that 2nd plaintiff purchased the property of the deceased 6th plaintiff. In that view of the matter, the contention of the defendant that the 1st Appellate Court ought to have dismissed the appeal as abated does not hold any merit. Therefore, this Court finds that there is no error in the finding of the 1st appellate Court warranting interference. 26. In that view of the matter, the contention of the defendant that the 1st Appellate Court ought to have dismissed the appeal as abated does not hold any merit. Therefore, this Court finds that there is no error in the finding of the 1st appellate Court warranting interference. 26. The contention of the plaintiffs is that this appeal against the 5th plaintiff was dismissed for default on 24.09.2002, but the defendant did not take any steps to restore the appeal. The judgment and decree passed by the learned 1st Appellate Court in favor of the plaintiffs is joint and indivisible. Therefore, this appeal against the remaining plaintiffs, cannot be proceeded with, as it would lead to passing a decree, which will be contradictory to the decree of dismissal which had become final with respect to the same subject matter between the defendant and the 5th plaintiff. In that view of the matter, the Second Appeal is liable to be dismissed. 27. QUESTIONS No.II & III: The plaintiffs filed the suit for the relief of declaration that the ABCDEFG lane is a joint lane of the plaintiffs and the defendant, and that the defendant made some structures in the joint lane causing obstruction to the plaintiffs, and therefore, the plaintiffs also filed the suit for mandatory injunction directing the defendant to remove the said structures. 28. The learned trial Judge dismissed the suit. The plaintiffs questioning the said judgment and decree filed the first appeal. The learned 1st Appellate Judge partly allowed the appeal, granting decree for declaration holding that the ABCDEFG lane is a joint lane for the plaintiffs and the defendant. 29. The learned 1st Appellate Judge in the judgment considered the evidence adduced by the plaintiffs as well as defendant and discussed both oral and documentary evidence with reference to the evidence of P.W-1, P.W-3 and D.W-1 and Exs.B-4 to B-6 and B-8. On facts held that the recitals of the said documents would establish that the lane running from south to north as shown in the plaint plan is a joint lane of Madicherla Veeranna, Gannamani Krishna Murthy and the defendant to reach the road located on the northern side. 30. The learned 1st Appellate Judge further held that Ex. On facts held that the recitals of the said documents would establish that the lane running from south to north as shown in the plaint plan is a joint lane of Madicherla Veeranna, Gannamani Krishna Murthy and the defendant to reach the road located on the northern side. 30. The learned 1st Appellate Judge further held that Ex. B-8 would establish the existence of a joint lane to reach the road from the joint lane, and therefore, the contention of the defendant that the lane exclusively belongs to him cannot be accepted. 31. The learned 1st Appellate Judge also referred the evidence of the defendant, who was examined as D.W-1, wherein he admitted that there is a lane running from north to south on the eastern side of his house; that the said lane is formed by four sharers and that those persons are having houses to the east of the said lane; and that there is a joint lane towards the east of Ex.B-6 property, and that Mr.Gannamani Krishna Murthy referred in Ex.B-6 is no other than the father of the plaintiff in the suit, and further, Ex.B-8 also refers the name of Mr.Gannamani Krishna Murthy, who is also having a right along with the defendant and Madicherla Veeranna to use the joint lane. 32. The learned 1st Appellate Judge also referred the findings of the trial Judge basing on Ex. B-8 that the joint lane is intended for the use of Mr.Gannamani Krishna Murthy, Madicherla Veeranna and the defendant and that the disputed lane is a joint lane of the defendant, Gannamani Krishna Murthy and Madicherla Veeranna. 33. In that view the concurrent findings of the 1st Appellate Judge and the trial Judge that the disputed lane is joint lane, this Court finds that there is no error or perversity in the findings of the 1st appellate Court warranting interference. Accordingly, this Court holds that there is no merit in the contentions raised for the defendant. 34. In the light of above discussion, the Second Appeal is liable for dismissal with costs. 35. In the result, the Second Appeal is dismissed with costs. As a sequel, miscellaneous applications pending, if any, shall stand closed.