JUDGMENT : B V L N Chakravarthi, J. This Second Appeal came to be filed by the appellant/plaintiff under Section 100 of the Code of Civil Procedure 1908, assailing the decree and judgment, dated 14.10.2003, on the file of the learned Senior Civil Judge, Narsapur, passed in A.S.No.59 of 1999. 2. Heard Sri P.Durga Prasad, learned counsel for the Appellant/Plaintiff and Sri T.Sai Surya, learned counsel for the Respondents/Defendants. Perused the material on record. PLEADINGS: 3. The appellant is the plaintiff. The respondent No.1 is the defendant in the suit. She died pending the first appeal. Subsequently, respondents No.2 to 13 came on to the record as legal representatives of the deceased-defendant. The parties in this Second Appeal shall hereinafter be referred to as arraigned in the Original Suit, for convenience and clarity. 4. The suit in O.S.16/1988 on the file of the learned Junior Civil Judge, Palakol, was filed seeking the relief of declaration of title over the ‘IBGH’ portion shown in the plaint plan, in an extent of 60 sq. yards of site; for mandatory injunction, directing the defendant to remove the fencing and sheds on the said site, and also for mandatory injunction to remove constructions made in ‘HCDG’ portion area of the plaint plan and the brick wall constructed along ‘OG’ line shown in the plaint plan. 5. The learned trial Court dismissed the suit vide judgment and decree dated 11.10.1999. The plaintiff filed appeal in A.S.59/1999 on the file of the learned Senior Civil Judge, Narsapur, challenging the judgment and decree of the learned trial Court. The learned Senior Civil Judge, Narsapur, vide judgment and decree dated 14.10.2003 dismissed the first appeal with costs, confirming the judgment and decree of the learned trial Court. 6. The case of the plaintiff is that the plaint schedule property i.e., ‘IBDG’ marked portion as shown in the plain plan is part of property purchased by the plaintiff under a registered sale deed dated 09.02.1988, from one Sri Katta Suryanarayana; the total extent of the property is 214 sq. 6. The case of the plaintiff is that the plaint schedule property i.e., ‘IBDG’ marked portion as shown in the plain plan is part of property purchased by the plaintiff under a registered sale deed dated 09.02.1988, from one Sri Katta Suryanarayana; the total extent of the property is 214 sq. yards, located in T.S.No.788/5, 16 th ward of Palakol; The plaintiff has been in possession of property from the date of purchase; the defendant’s site is located on the northern side of the plaint schedule property; the defendant encroached the same and raised temporary constructions, in ‘IBCH’ area shown in the plaint plan; the matter was placed before elders; the defendant did not heed the advice of the elders; Hence, the suit for declaration and consequential mandatory injunction. 7. The case of the defendant is that the defendant is owner of the northern adjacent site of the plaint schedule site; both the sites originally belong to one Bangaru people; The plaint schedule site was purchased by one Alla Venkataratnam on 09.04.1959, while the adjacent northern site was purchased by one Seella Bangaramma on the same day; Later A.Venkataratnam sold site to Kondeti Narasimhulu; Seella Bangaramma sold her site to the defendant, under sale deed dated 14.02.1970; the plaint schedule site subsequently devolved on K.Suryanarayana, who in turn sold it to the plaintiff. Both the plaint schedule site and the site of defendant were originally part of a tank bed land; They were filled up with earth and leveled; The defendant’s site is lower in level than the suit site; there is fence separating the defendant’s site from its northern and southern side sites; the northern fence was raised by adjacent owners one Kodi Suryavathi and Narreddi Ranganayakamma; the southern fence was raised by the plaintiff’s mother Gunduboyina Laxmi Kanthamma; the property situated on the south of the suit site belong to the mother of the plaintiff, she constructed a house 8 years ago; She encroached the suit site, and annexed it by a common fencing for her site and the suit site; Therefore, disputes arose between the earlier owner of the suit site and the mother of the plaintiff; Disgusted with the litigation, the owner of the plaint site sold it to the plaintiff. The site of the defendant is completely separate from the suit site, separated by a fence, raised by the mother of the plaintiff, even prior to the purchase of the suit site by the plaintiff; When the defendant has been preparing to fill up her site during the summer of 1986, but he could not succeed as the plaintiff and her mother picked up quarrel with the defendant and her husband. The defendant filed O.S.97/1986 on the file of Junior Civil Judge’s Court, Palakol, against the plaintiff and her mother for permanent injunction; An advocate-commissioner was appointed by the Court in the said suit; He filed a report upon local inspection; It supports the case of the defendant; hence, the plaintiff filed the present suit with false and vexatious contentions. Later, after elaborate trial, O.S.97/1986 was decreed granting permanent injunction restraining the plaintiff and he mother from trespassing into the site of the defendant; The said suit was decreed on 30.06.1993; the plaintiff and her mother did not file any appeal; Hence, the judgment became final; the present suit is barred by res-judicata. ISSUES: 8. Basing on the above pleadings, the trial Court settled the following issues for trial: 1. Whether the plaint plan is not correct? 2. Whether the defendant is entitled to compensatory costs? 3. Whether the plaintiff is entitled to declaration prayed for? 4. Whether the plaintiff is entitled to mandatory injunction prayed for? 5. Whether the plaintiff is entitled to permanent injunction prayed for? 6. To what relief? Subsequently, the learned trial Court framed the following additional issues: 1. Whether the judgment and decree in O.S.No.97/1986 operates as res-judicata? 2. Whether the defendant has trespassed into ‘HCDG’ portion of the plaint plan pending disposal of this suit and constructed sheds in the site and a brick wall along ‘GD’ line? 3. Whether the plaintiff is entitled to the mandatory injunction directing the defendant to remove the constructions made in ‘HCDG’ portion and brick wall along ‘DG’ line? EVIDENCE: 9. During trial, on behalf of the plaintiff, five witnesses were examined as P.Ws-1 to 5, and two documents were marked as Exs.A-1 and A-2. On behalf of the defendant, three witnesses were examined as D.Ws-1 to 3, and 11 documents were marked as Exs.B-1 to B-11. EVIDENCE: 9. During trial, on behalf of the plaintiff, five witnesses were examined as P.Ws-1 to 5, and two documents were marked as Exs.A-1 and A-2. On behalf of the defendant, three witnesses were examined as D.Ws-1 to 3, and 11 documents were marked as Exs.B-1 to B-11. On behalf of third party one document was marked as Ex.X-1 and on behalf of the Court, five documents were marked as Exs.C-1 to C-5. FINDING OF THE TRIAL COURT: 10. The learned trial Court on consideration of the above oral and documentary evidence, found that the plaintiff is not sticked to Ex.A-1 plaint plan, and changed the version that entire site was encroached by the defendant. The trial Court further held plaintiff’s contention that the defendant encroached plaintiff’s site is not established. The learned trial Court further held that as per Ex.C-1 commissioner’s report, the plaintiff’s case is not true and correct, regarding alleged encroachments shown in the plaint plan, and therefore, the plaintiff is not entitled to declaration of title as prayed for. The learned trial Court on issue No.4 and additional issues No.2 and 3 held that the contention of the plaintiff that the defendant pending suit encroached ‘HCDG’ portion and made constructions is not true and therefore, refused the relief of mandatory injunction also, and dismissed the suit. FINDING OF THE FIRST APPELLATE COURT: 11. The learned Senior Civil Judge, Narsapur, on consideration of the evidence in the suit, on the question whether the defendant encroached into ‘IBCH’ of paint plan and if so, whether the plaintiff is entitled to declaration as claimed? held that the defendant was in possession of the site upto ‘DG’ line as shown in the plaint plan and also constructed brick wall even by the year 1982 as admitted by the plaintiff in the other suit, and therefore, the case of the plaintiff is not true and correct and the plaint plan under Ex.A-1 is also incorrect; the plaintiff failed to identify her own site as per its measurements and boundaries, as claimed and failed to prove that ‘IBCH’ portion is the plaintiff’s property and that it was encroached by the defendant; and therefore, the plaintiff neither proved title nor possession of the disputed site, and dismissed the appeal. 12. Challenging judgment of the learned First Appellate Court, the Second Appeal came to be filed by the plaintiff. 12. Challenging judgment of the learned First Appellate Court, the Second Appeal came to be filed by the plaintiff. The Second Appeal was admitted on 20.02.2004, for the fallowing substantial question of law. SUBSTANTIAL QUESTION OF LAW: 13. “Whether in a suit for declaration of title, on earlier decree in a suite for injunction operates as res-judicata?” 14. CONTENTIONS OF THE RESPECTIVE COUNSEL IN THE SECOND APPEAL: The learned counsel for the appellant/plaintiff would submit that the learned trial Court and the learned First Appellate Court dismissed the suit and the appeal on the ground that the judgment and decree in O.S.97/1986 operates as res-judicata. He would further submit that O.S.97/1986 was filed by the defendant against the plaintiff’s mother and plaintiff for permanent injunction, and therefore, the judgment and decree in the said suit, will not operate as res-judicata in this suite filed for declaration of the title. 15. The learned counsel for the respondents/legal representatives of the defendant would contend that the suit was not dismissed on that ground. It was dismissed on factual matrix. holding that the contention of the plaintiff with regard to Ex.A-1 plaint plan was not proved. The plaintiff failed to establish her title over suite shown as ‘IBCH’ in an extent of 60 sq. yards as part of the site purchased by the plaintiff under sale deed dated 09.02.1988 from Katta Suryanarayana. Both the Courts below categorically found that the defendant was in possession of the disputed portion of site, even by 1982. Hence, the plaintiff cannot reagitate the same in the second appeal, i.e., with regard to the possession of the defendant over the disputed site. Hence, there are no grounds to maintain the Second Appeal. ANALYSIS: 16. Law is settled that incidental finding on title in a simple suit for permanent injunction, based on possession, will not operate as res- judicata in a later suit for declaration of title, if no issue framed in the earlier suit with regard to title. In the case on hand, the contention of the appellant is that suit was dismissed on the ground that the earlier judgment and decree operate as res-judicata. The contention of the defendant is that suit was dismissed on facts. 17. The case of the plaintiff is that she purchased 214 sq. In the case on hand, the contention of the appellant is that suit was dismissed on the ground that the earlier judgment and decree operate as res-judicata. The contention of the defendant is that suit was dismissed on facts. 17. The case of the plaintiff is that she purchased 214 sq. yards of site in T.S.No.788/5, 16 th ward, Palakol from one K.Suryanarayana under a registered sale deed dated 09.02.1988; Since then, she has been in possession of the said property; The defendant is having site situated on the north of the plaintiff’s site, and she trespassed into the site of the plaintiff and occupied 60 sq. yards out of 214 sq. yards of site of plaintiff and made constructions and also made some more constructions pending the suit; The portion encroached by the defendant is shown as ‘IBDG’ in the plaint plan. 18. The contention of the defendant is that the plaintiff purchased property from K.Suryanarayana, whereas the defendant purchased property from S.Bangaramma under a sale deed dated 14.02.1970. It appears that both the sites are part of a tank bed and occupied by one Bangaru people. Both sites are adjacent sites. The plaint schedule site was purchased by A.Venkataratnam on 09.04.1959, while the defendant site was purchased by S.Bangaramma on the same day. A.Venkataratnam, later sold the site to K.Narasimhulu; S.Bangaramma sold her site to the defendant. The plaint schedule site later devolved on K.Suryanarayana i.e., vendor of the plaintiff. He sold the same to the plaintiff under a sale deed dated 09.02.1988. Hence, there is no dispute about the fact that the plaint schedule site and the defendant site are adjacent sites. There is no dispute about the fact that the plaint schedule site was purchased by the plaintiff from one K.Suryanarayana in 1988; The defendant purchased her site from S.Bangaramma in 1970. 19. The plaintiff filed Ex.A-1 plan contending that ‘IBCH’ portion was encroached portion, and it is a part of the property purchased by the plaintiff under a registered sale deed. Therefore, the plaintiff has to prove that ‘IBCH’ portion is part of the property purchased under the sale deed, and encroached by the defendant, just prior to the suit and made constructions. 20. Therefore, the plaintiff has to prove that ‘IBCH’ portion is part of the property purchased under the sale deed, and encroached by the defendant, just prior to the suit and made constructions. 20. As discussed above, the learned trial Court as well the learned I Appellate Court on consideration of the oral as well as documentary evidence, categorically held that the plaintiff could not prove that disputed property shown in Ex.A-1 plaint plan fall under her sale deed. On the other hand, the report filed by the advocate-commissioner in the suit filed by the defendant runs against the case of the plaintiff. Therefore, both the Courts below on facts concurrently found that the plaintiff failed to prove that ‘IBCH’ portion of Ex.A-1 plan as a part of the property purchased by the plaintiff and that it was encroached by the defendant as alleged in the plaint. Accordingly, refused the relief of declaration and mandatory injunction. 21. Nothing has been made out in the Second Appeal, on facts showing that the findings of the Courts below were not based on evidence on record, or pervers. Therefore, in the light of concurrent findings of the Courts below that the plaintiff failed to establish that ‘IBCH” portion of Ex.A-1 plaint plan as part of the property purchased by the plaintiff, refusal of plaintiff’s prayer for declaration and mandatory injunction, does not warrant any interference by this Court. As rightly contended by the learned counsel for the defendant, both the Courts below did not dismiss the suit on the ground that the judgment and decree in O.S.97/1986 operates as res-judicata in the present suit. They dismissed the suit on consideration of facts. While considering the facts, both the Courts below referred to commissioner reports filed in the earlier suit, marked in the present suit as Exs.C-1 to C-5, to test the credibility of testimony of the plaintiff and her witnesses as well defendant and her witnesses. Hence, the contention of the appellant/plaintiff that both the Courts below dismissed the suit solely basing on the ground that the earlier judgment and decree operates as res-judicata, is not correct. CONCLUSION: 22. In the light of foregoing discussion, the Second Appeal is liable to be dismissed. RESULT: 23. Hence, the contention of the appellant/plaintiff that both the Courts below dismissed the suit solely basing on the ground that the earlier judgment and decree operates as res-judicata, is not correct. CONCLUSION: 22. In the light of foregoing discussion, the Second Appeal is liable to be dismissed. RESULT: 23. In the result, the Second Appeal is dismissed with costs throughout, by confirming the judgment and decree dated 14.10.2003 passed in A.S.59/1999 on the file of Senior Civil Judge, Narsapur. As a sequel, Interlacutory applications pending, if any, shall stand closed.