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2023 DIGILAW 28 (AP)

B. Subba Rao v. Kodavati Sri Ramamurthy

2023-01-04

BANDARU SYAMSUNDER

body2023
JUDGMENT: 1. The plaintiffs in O.S.No.188 of 1991 on the file of Principal Junior Civil Judge, Narsapur are the appellants. The respondents are the defendants in the suit. Originally, the suit was filed by the appellants 1 and 2/plaintiffs 1 and 2 against the respondents/ defendants 1, 2. During the pendency of the suit, the 1st plaintiff died and then the appellants 3 to 6/plaintiffs 3 to 6 were added as plaintiffs, being legal representatives of the 1st plaintiff, as per Orders in IA.No.1082 of 1997, dated 15.09.1997. 2. The appellants and the respondents herein after referred to as plaintiffs and defendants as arrayed before the trial Court. 3. The plaintiffs instituted the suit against the defendants, seeking relief of declaration and for mandatory injunction for removal of alleged projections, eaves of the house of the defendants into the plaintiffs’ site. 4. It is the contention of the plaintiffs that the 1st plaintiff purchased the plaint schedule site in the year 1976 from ‘Talluri people’ and obtained Ex.A4 registered sale deed on 11.04.1988 to an extent of site of Ac.0-40.092 cents and ever since the plaintiffs have been in possession and enjoyment of the plaint schedule property, which is shown as ‘site’. They submit that after plaintiffs purchased the site, the defendants have purchased Ac.0-10 cents of site from one Bhaskara Rao and his mother about 10 years back on the western side by the side of the plaintiffs site and their purchase is 10 years after purchase of the site by the plaintiffs. It is also the contention of the plaintiffs that their site and the site of the defendants are vacant sites and thereafter both have constructed houses in their respective sites. The plaintiffs have alleged that when the defendants were contemplating to construct a thatched house in their site, adjoining to their site, they requested the defendants to see that the eaves of their house should not project or extend into the plaint schedule site, which accepted by the defendants. But subsequently, when the plaintiffs were absent in the village, the defendants made constructions with the eaves of the house extended to the plain schedule site to a width of 6 feet. But subsequently, when the plaintiffs were absent in the village, the defendants made constructions with the eaves of the house extended to the plain schedule site to a width of 6 feet. They further alleged that the defendants have also constructed a pial with mud on the eastern side wall of their house by occupying an extent of 10 sq.yards of their site and high handedly enchroached into their site to an extent of 5 sq.yards and constructed a small thatched hut on the south-east corner of their site, wherein they have no right. The plaintiffs have shown the alleged encroachments by the defendants in red colour in Ex.A1 plaint plan and they have shown their site as ‘ABCD’ in the plaint plan and site of the defendants is shown as ‘ADEF’ in Ex.A1 plaint plan. As efforts of the plaintiffs with the help of the mediators to get the encroachments made by the defendants removed failed, they filed the suit for declaration and mandatory injunction. 5. The defendants filed written statement, denying the averments in the plaint. It is the contention of the defendants that they purchased Ac.0-10 cents of site in RS No.242/4 about 14 years ago and they have not encroached into the site of the plaintiffs. They submit that they have not made constructions of their house by projecting the eaves into the site of the plaintiffs and the plaint plan is not correct and they also filed plan, which is marked as Ex.B2. They submit that in RS No.242/4, the plaintiffs have no site, but the plaintiffs’ site is situated in RS.No.242/5 and they claimed that existing eaves were in the same position since the year 1978, which the plaintiffs have not questioned, thereby they also acquired prescriptive easementary right over them and they have not raised any pial encroaching into the site of the plaintiffs. They also stated that a small hut raised by them on the south-east corner of their site in the year 1978 itself, which is being used as kitchen, wherein the plaintiffs have no right to claim. They pray to dismiss the suit. 6. The trial Court basing on the above pleadings, settled the following issues for trial: 1. Whether the plaintiffs are entitled for declaration and consequential relief of possession as prayed for? 2. Whether the plaintiffs are entitled for mandatory injunction as prayed for? 3. To what relief? They pray to dismiss the suit. 6. The trial Court basing on the above pleadings, settled the following issues for trial: 1. Whether the plaintiffs are entitled for declaration and consequential relief of possession as prayed for? 2. Whether the plaintiffs are entitled for mandatory injunction as prayed for? 3. To what relief? 7. The parties went to trial. On behalf of the plaintiffs, the 2nd plaintiff was examined as PW.1. Exs.A1 to A5 were marked. On behalf of the defendants, DW.1, DW.2 were examined Exs.B1 and B2 were marked. 8. On the material and evidence, the trial Court held that the eaves of the defendants’ house are not extended into the plaintiffs’ site and there is no mud pial also as alleged by the plaintiffs, due to that the plaintiffs are not entitled for mandatory injunction against the defendants for removal of projections of the eaves of the thatched house, but granted the relief of declaration of tile to the encroached portions of 3 links of site on the southern side and 2 links of site on the northern side of the plaintiffs’ site, as per the Surveyor’s plan and sketch and directed the defendants to remove the encroached portions, within a period of two months from the date of decree, failing which liberty is given to the plaintiffs to execute the decree under due process of law. 9. Aggrieved by the Decree and Judgment passed by the trial Court, the defendants have presented AS.No.47 of 1998 on the file of Senior Civil Judge, Narsapur, which was allowed by the first appellate Judge, setting aside the Judgment and Decree passed by the trial Court, and dismissed the suit filed by the plaintiffs. 10. In these circumstances, the present Second Appeal is presented. 11. I have heard learned counsel Mr.Lalith, representing on behalf of Mr.T.Sai Surya, learned counsel for the appellants as well as learned counsel Mr.I.Venkata Prasad, representing on behalf of Mr.V.Sreemannarayana, learned counsel for the respondents. 12. This Second Appeal was admitted on the following substantial question of law, raised in Ground No.10 in the grounds of appeal, which are: i) Whether the lower appellate Court is right in reversing the Judgment of the trial Court without considering contents of Ex.A4 and A5 sale deeds which are relevant documents to show the total extent of land owned by the plaintiffs? ii) Whether the lower appellate Court is right in not relying upon the report of the Commissioner and sketch of the Surveyor which are the part and parcel of the evidence on record on the ground that the said Commissioner and Surveyor were not examined? iii) Whether the lower appellate Court is right in observing that no relief of declaration and possession can be granted in favour of plaintiffs in the absence of any pleading as such in the plaint though the plaintiffs specifically sought for the said relief’s by paying necessary Court fee? iv) Whether the lower appellate Court is right in relying upon the report of the Commissioner for disbelieving the case of the plaintiffs having observed that it cannot be taken into consideration in the absence of the said Commissioner? 13. The learned counsel for the appellants would submit that the first appellate Court failed to consider the Advocate-Commissioner report and plan, who visited suit locality along with Surveyor, measured the sites of the plaintiffs and the defendants and came to conclusion that there is an encroachment of site of the plaintiffs by the defendants. He would further submit that though the Advocate- Commissioner report is not marked by examining the Advocate- Commissioner before the trial Court, still the said report can be looked into in view of objections filed by the defendants to the Advocate-Commissioner report that they encroached the site of the plaintiffs, as stated in the Advocate-Commissioner report and plan. He prays to allow the Second Appeal. 14. The learned counsel for the respondents would submit that the first appellate Court rightly allowed the appeal, after considering the fact that the plaintiffs not examined the Advocate-Commissioner and not filed any report. He would further submit that the first appellate Court rightly observed that relief, which granted by the trial Court is not supported by any pleading, which finding needs no interference. He prays to dismiss the Second Appeal. 15. As per Section 100 CPC, this Court can interfere with the Judgment of the appellate Court, if it is satisfied that case involves a substantial question of law. A finding of fact recorded by appellate Court is binding on this Court, unless there is any error of law in such finding. The Hon'ble Apex Court in Narayan Sitaramji Badwaik (dead) through LRs. Vs. A finding of fact recorded by appellate Court is binding on this Court, unless there is any error of law in such finding. The Hon'ble Apex Court in Narayan Sitaramji Badwaik (dead) through LRs. Vs. Bisaram and others, Respondents in Civil Appeal No.6124 of 2011 Judgment dated 17.02.2021 explained circumstances under which High Court determine issue of fact. Wherein it is held at para 10, which reads as under: “10. It is a settled position of law that a second appeal, under Section 100 of the Code of Civil Procedure, lies only on a substantial question of law [refer Santhosh Hazari v. Purushottam Tiwari (deceased) by LRs, (2001)3 SCC 179 ]. However, this does not mean that the high court cannot, in any circumstance, decide findings of fact or interfere with those arrived at by the Courts below in a second appeal. In fact, Section 103 of the Code fo Civil Procedure explicitly provides for circumstances under which the High Court may do so. Section 103 of the Code of Civil Procedure is as follows: Section 103. Power of High Court to Determine Issue of Fact In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,- (a) Which has not been determined by the lower Appellate Court or both by the Court of first instance and the lower Appellate Court, or (b) Which has been wrongly determined by such Court or Courts by reason of a decision on such question of law as is referred to in Section 100. 16. The Hon'ble Apex Court in recent Judgment in Chandrabhan (Deceased) Through LRs. And Others – Appellants Vs. Saraswati and Others – Respondent(s) in Civil Appeal No.NIL of 2022 (Arising out of S.L.P.(C) No.8736 of 2016) Judgment dated 22.09.2022, held at para 33 of the Judgment explained the principles of Section 100 CPC, which are extracted as under: "33. The principles relating to Section 100 of the CPC relevant for this case may be summarised thus: (i) An inference of fact from the recitals or contents of a document is question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is a misconstruction of a document or wrong application of a principle of law in constructing a document, it gives rise to a question of law. (ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which effects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents and involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the Court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law. (iii) The general rule is that the High Court will not interfere with findings of facts arrived at by the Courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the Courts below have ignored material evidence or acted on no evidence; (ii) the Courts have drawn wrong inferences from proved facts by applying law erroneously; or (iii) the Courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence," it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding." 17. It would be beneficial to extract Order VI, Rule 2 of CPC, which reads as under: “2. It would be beneficial to extract Order VI, Rule 2 of CPC, which reads as under: “2. Pleading to state material facts and not evidence- (1) Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved. (2) Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each allegation being, so far as is convenient, contained in a separate paragraph. (3) Dates, sums and numbers shall be expressed in a pleading in figures as well as in words”. 18. Even, Order VI, Rule 4 explains particulars to be given where necessary. In support of pleadings, either party shall adduce evidence and any amount of evidence without foundation of pleading cannot be looked into. 19. In the present case, it is specific contention of the plaintiffs that the defendants have encroached their site on eastern side by extending eaves of their house into their site and also made constructions of their hut extending towards their site, due to that they sought for declaration and injunction for removal of those encroachments, which are shown in red colour in Advocate Commissioner plan. The learned trial Judge while deciding the Issue No.2, held that “the eaves of the defendants’ house are not extended into the plaintiffs’ site and there is no mud pial also as alleged by the plaintiffs, therefore the plaintiffs are not entitled for any mandatory injunction against the defendants, directing them to remove the projections of the eaves of the thatched house. Therefore, this Issue No.2 is answered accordingly, as against the plaintiffs.” On the said findings, the learned trial Judge partly decreed the suit, directing the defendants to remove the alleged encroachment to a width of 3 links on the southern side and 2 links on the northern side of the plaintiffs’ site, basing on the report of the Advocate-Commissioner. 20. It is undisputed fact that the Advocate-Commissioner with the assistance of Surveyor with reference to the title deeds of both sides, i.e., Exs.A4, A5 and Ex.B1, measured the disputed site, prepared plan and filed report. For which, the defendants have also filed objections as observed by the learned trial Judge. 20. It is undisputed fact that the Advocate-Commissioner with the assistance of Surveyor with reference to the title deeds of both sides, i.e., Exs.A4, A5 and Ex.B1, measured the disputed site, prepared plan and filed report. For which, the defendants have also filed objections as observed by the learned trial Judge. It is also discussed by the learned trial Judge that DW.1 denied encroachment of site of the plaintiffs and they filed objections to the Advocate-Commissioner report. In spite of filing objections to the Advocate-Commissioner report, who found encroachment of the plaintiffs’ site by the defendants in some other area, the plaintiffs have not chosen to examine the Advocate-Commissioner and not exhibited report and plan of the Advocate-Commissioner before the trial Court. The plaintiffs have also not taken any steps to amend the plaint suitably, after filing of the report by the Advocate- Commissioner showing alleged encroachment of their site by the defendants in the area, which is distant from the area which they claimed in the plaint. Which clearly shows that the relief which granted by the trial Court, is not supported by any pleading, which rightly observed by the learned appellate Judge. 21. The learned appellate Judge, at para 57 of his Judgment has observed that “when the trial Court found that the encroachments alleged by the plaintiffs are not found by the Commissioner and when there is no corroborative evidence to support the evidence of PW.1 regarding encroachments, the trial Court ought to have dismissed the suit and ought not to have relied on these observations in the report of Commissioner or sketch of Surveyor, who are not examined and whose observations with regard to the encroachments are not even pleaded by the plaintiffs in their pleadings or evidence. Consequently, the Judgment and Decree of the trial Court are liable to be set-aside and the suit entails in dismissal and the appeal deserves to be allowed. This point is accordingly answered”. 22. Consequently, the Judgment and Decree of the trial Court are liable to be set-aside and the suit entails in dismissal and the appeal deserves to be allowed. This point is accordingly answered”. 22. It is not in dispute that the relief, which the trial Court granted to the plaintiffs, is not supported by any pleading and the trial Court itself observed that alleged encroachment as stated by the plaintiffs in their plaint and also in evidence is negative, but granted relief for removal of alleged encroachments of 3 links of site on the southern side and 2 links of site on the northern side, basing on the Surveyor report, which is not exhibited before the trial Court, though Advocate-Commissioner report and plan are part and parcel of the record. When objection has been filed by other party, unless Advocate-Commissioner is examined to explain the objections raised by the other party on the basis of the Advocate-Commissioner report and Surveyor plan, the trial Court cannot grant a relief, which rightly observed by the learned first appellate Judge. The relief which is granted by the trial Court in favour of the plaintiffs is not supported by any pleading and evidence. In a suit for declaration of title and injunction, entire burden of proving the case is on the plaintiffs, who cannot depend upon the weakness of the defendants’ case. 23. The Hon’ble Apex Court in Union of India and others. vs.Vasavi Co-op. Housing Society Ltd., and others, 2014 (2) ALD 157, Judgment dated 07.01.2014, wherein it is held at para 12, which reads as under: “12. It is trite law that, in a suit for declaration of title, burden always lies on the plaintiffs to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiffs”. 24. Therefore, observation by the learned trial Judge that the defendants have not produced any evidence to show that the plaintiffs are in possession and enjoyment more than the actual extent. The Commissioner’s report and Surveyor’s plan is supporting the case of the plaintiffs, to a major extent, except with some difference of encroachments in extents, is not correct in view of ratio laid down by the Hon’ble Apex Court in Union of India and others vs. Vasavi Co-op. The Commissioner’s report and Surveyor’s plan is supporting the case of the plaintiffs, to a major extent, except with some difference of encroachments in extents, is not correct in view of ratio laid down by the Hon’ble Apex Court in Union of India and others vs. Vasavi Co-op. Housing Society Ltd and others case referred supra. 25. Basing on the material and evidence, the learned appellate Court rightly appreciated the evidence and reversed the finding of the trial Court and dismissed the suit. 26. In these circumstances, finding no such questions that require consideration in this Second Appeal, much less substantial question of law, as pointed out by the defendants, this Second Appeal has to be dismissed. 27. This Court is satisfied that this is not an instance, where Section 100 CPC has to be applied nor interference is warranted with the Decree and Judgment of the appellate Court that reversing the Decree and Judgment of the trial Court. 28. In the result, this Second Appeal is dismissed, confirming the Judgment and decree of the appellate Court. In the circumstances, there shall be no order as to costs. As a sequel, pending miscellaneous petitions if any, stand closed. Interim Orders granted if any, shall stand vacated.