JUDGMENT : B V L N Chakravarthi, J. S.A.No.1019 OF 2002 This Second Appeal, under Section 100 of the Code of Civil Procedure, 1908, was filed by the appellant/plaintiff assailing the common judgment, dated 08.10.2002, of the learned Senior Civil Judge, Markapur, passed in A.S.No.34 of 1996. 2. The appellant/plaintiff filed O.S.271/1986 on the file of learned Junior Civil Judge, Markapur, against the respondent/defendant seeking the relief of permanent injunction, contending that the plaintiff purchased Patta land in extent of Ac.0-1¼ cents from Dupati Chinna Venkaiah on 21.12.1979, under a registered sale deed for a consideration of Rs.500/; raised a vegetable shop in the road margin located in front of the site. The defendant is threatening the plaintiff’s to remove vegetable shop. Hence, the suit for permanent injunction. 3. The case of the defendant is that he purchased 18.57 sq. mts of Patta site abutting the Vijaya Hotel and another bit of site for a consideration of Rs.4,300/- on 20.03.1986, under a registered sale deed from Annamraju Lakshmi Narasimha Murthy; Ever since, the road margin and Patta site laying to the south of road margin are in exclusive possession and enjoyment of the defendant; the defendant raised a Kottam in Patta site; the plaintiff did not purchase the site abutting Vijaya Hotel and not in possession and enjoyment of Patta site abutting the Vijaya Hotel and road margin; Plaintiff is not running a vegetable shop and beedi bunk on the road margin; plaintiff filed the suit to grab the road margin and Patta site belonging to the defendant. 4. Taking into consideration of the above pleadings, the trial Court settled the following issues for trial: 1. Whether the plaintiff is entitled to permanent injunction as prayed for? 2. Whether the schedule site is a road margin site? 3. To what relief? S.A.No.1020 OF 2002 5. This Second Appeal, under Section 100 of the Code of Civil Procedure, 1908, was filed by the appellant/plaintiff assailing the common judgment, dated 08.10.2002, of the learned Senior Civil Judge, Markapur, passed in A.S.No.39 of 1996. 6. Pending the above suit, the plaintiff filed another suit in OS 37/87 against the defendant and some others, for permanent injunction contending that the defendant with the support of other defendants threatening the plaintiff to dispossess from self-same road margin and Patta site; 7. The defendant took same pleas as contended in the earlier suit i.e., O.S.271/1986. 8. 6. Pending the above suit, the plaintiff filed another suit in OS 37/87 against the defendant and some others, for permanent injunction contending that the defendant with the support of other defendants threatening the plaintiff to dispossess from self-same road margin and Patta site; 7. The defendant took same pleas as contended in the earlier suit i.e., O.S.271/1986. 8. Taking into consideration of pleadings, the trial Court settled the following issues in O.S.34/1987: 1. Whether the plaintiff is having right and title over the plaint schedule property? 2. Whether the plaintiff is in possession of the plaint schedule property? 3. To what relief? 9. During trial, common evidence was recorded for both the suits in O.S.271/1986. 10. On behalf of the plaintiff, P.W-1 to 4 were examined, and Exs.A-1 to A-3 were marked. On behalf of the defendant, D.W-1 to D.W-3 were examined, and Exs.B-1 and B-2 were marked. Exs.C-1 to C-6 were also marked by the trial Court. 11. The learned trial Court on consideration of the above evidence, decreed the suits in O.S.271/1986 and O.S.34/1987, for permanent injunction, vide common judgment dated 05.06.1996. 12. The defendant preferred A.S.34/1996 and A.S.39/1996 on the file of learned Senior Civil Judge, Markapur, challenging the common judgment and decree of the learned trial Court. 13. The learned Senior Civil Judge, Markapur, disposed of both appeals vide common judgment dated 08.10.2002; and allowed both appeals. Hence, the Second Appeals vide S.A.1019/2002 (A.S.34/1996) and S.A.1020/2002 (A.S.39/1996) came to be filed. 14. The parties are referred to as arraigned in O.S.271/1986 for convenience and clarity. 15. The substantial question of law raised in both the appeals is as under: “Whether the admission of the defendant (D.W-2) would constitute a basis to hold that the appellant/plaintiff is in possession”? 16. Heard, Sri M.R.S.Srinivas, learned counsel appearing for the Appellant/Plaintiff and Sri A.Giridhara Rao, learned counsel appearing for the Respondents/Defendants. Perused the material on record. 17. ANALYSIS The learned counsel for appellant would submit that the suit in O.S.271/1986 was filed for permanent injunction by the appellant/plaintiff against the respondent/defendant. The suit in O.S.34/1987 was also filed by the appellant/plaintiff for permanent injunction against the respondent/defendant and some more defendants/respondents. He would submit that the suit schedule property is one and the same. 17. ANALYSIS The learned counsel for appellant would submit that the suit in O.S.271/1986 was filed for permanent injunction by the appellant/plaintiff against the respondent/defendant. The suit in O.S.34/1987 was also filed by the appellant/plaintiff for permanent injunction against the respondent/defendant and some more defendants/respondents. He would submit that the suit schedule property is one and the same. The suit property is a vegetable shop located on the road margin abutting north of the plaintiff’s property described in the boundaries shown in the plaint schedule in an extent of Ac.0-1¼ cents. 18. He would further submit that the plaintiff purchased the property on 21.12.1979 vide Ex.A-1 registered sale deed from one Dupati Chinna Venkayya. Later raised the vegetable shop on the road margin abutting the road located on northern side of his site. The learned counsel for appellant/plaintiff would further submit that, Ex.A-1 registered sale deed would show the existence of road on the north side of the property purchased by the plaintiff. The existence of road on the north side is not under dispute. It is also not under dispute that there is a road margin abutting the said road. The defendant disputes existence of vegetable shop on the road margin as claimed by the plaintiff. 19. The plaintiff in order to establish existence of shop, examined three witnesses as P.Ws-2 to 4. The reports of the advocate- commissioner marked as Exs.C-1, C-3, C-5 and C-6 would also prove the existence of vegetable shop on the road margin. 20. The defendant examined himself as D.W1 and also examined two more witnesses as D.Ws-2 and 3 respectively. The defendant (D.W-1) as well as D.W-2 in their evidence categorically admit about the existence of vegetable shop on the road margin. Inspite of these vital facts, the learned I Appellate Judge observed that the plaintiff did not prove the boundaries as mentioned in Ex.A-1 registered sale deed and therefore, allowed the appeals. This finding of the learned I Appellate Judge is not based on facts of the case. The learned trial Judge in detail discussed the evidence and assigned reasons for his conclusion that the plaintiff proved the possession of the disputed property and decreed the suits. 21. This finding of the learned I Appellate Judge is not based on facts of the case. The learned trial Judge in detail discussed the evidence and assigned reasons for his conclusion that the plaintiff proved the possession of the disputed property and decreed the suits. 21. He would further submit that D.W-2 in his evidence made categorical admission about the existence of vegetable shop on the road margin for the last several years from 1978 or 1979 and that it belongs to the plaintiff. Further, D.W-1 (defendant) also admitted about the existence of vegetable shop as claimed by the plaintiff. In those circumstances, the learned I Appellate Court ought to have considered the evidence of D.W-2 as well as D.W-1, as corroborative evidence to strengthen the evidence of plaintiff and his witnesses. 22. The learned counsel for defendant/respondents vehemently contended that the plaintiff failed to prove Ex.A-1 registered sale deed, examining his vendor. No other documents are filed to establish the possession of the plaintiff over the disputed site, and therefore, in the absence of evidence placed by the plaintiff, suit will fail. The evidence of D.W-2 cannot be used to decree the suits. 23. Admittedly, both the suits were filed by the appellant herein for permanent injunction. The property involved in both the suits is one and the same. The plaintiff sought the relief of permanent injunction against the defendant basing on possession and enjoyment of the vegetable shop raised on the road margin located on the northern side of the property, purchased under a registered sale deed in the year 1979 vide Ex.A-1.The boundaries described in Ex.A-1 show that the eastern side and southern side properties belongs to Annamraju people. Western side belongs to Sunnabhagari Silar Saheb’s Kottam. Northern side is road. The extent covered under Ex.A-1 is Ac.0-1¼ cents, out of Ac.2-98 cents. Undisputedly, originally the entire property i.e., Ac.2-95 cents belong to one Annamraju family. The plaintiff’s vendor Sri Dupati Chinna Venkaiah purchased the property from Annamraju family. 24. The contention of the defendant is that Plaintiff did not examine his vendor. The contention of the plaintiff is that he could not examine him, as he was won over by the defendant. It is pertinent to note down that the plaintiff’s vendor was examined by the defendant, as a witness (R.W-1), during temporary injunction proceedings, in the suit. 24. The contention of the defendant is that Plaintiff did not examine his vendor. The contention of the plaintiff is that he could not examine him, as he was won over by the defendant. It is pertinent to note down that the plaintiff’s vendor was examined by the defendant, as a witness (R.W-1), during temporary injunction proceedings, in the suit. He admit the execution of Ex.A-1 registered sale deed and also about existence of vegetable shop raised by the plaintiff. 25. It is an admitted fact that an advocate-commissioner was appointed, at the instance of the plaintiff for local investigation. The reports of the advocate-commissioner were marked as Exs.C-1, C-3, C-5 and C-6 respectively. The reports of the advocate- commissioner would establish the existence of vegetable shop on the northern side on the road margin. The defendant tried to explain that it was constructed one day before the visit of the advocate-commissioner. Surprisingly, no objections were filed by him on the report of the advocate-commissioner. 26. D.W-2 in the cross-examination categorically admitted the existence of vegetable shop in the road margin on the northern side of the disputed site from 1977 or 1978. Therefore, the evidence available on record placed by the plaintiff, defendant and report of the advocate- commissioner would probable the case of the plaintiff about the existence of vegetable shop in the road margin on the north of the disputed property since 1979 and has been doing vegetable business. 27. The learned I Appellate Judge failed to consider the above vital facts. Instead, the learned I Appellate Judge tried to compare the boundaries described in Ex.A-1. Admittedly, the eastern and southern boundaries in Ex.A-1 are referred as the land belonging to Annamraju family. There is no dispute that later, the property on southern and eastern side were sold away by family members of Annamraju and therefore, Vijaya Hotel came into existence on the southern side of the plaintiff’s property. The learned I Appellate Court had made a mistake in this regard observing that the boundaries in Ex.A-1 registered sale deed are not tallying with the boundaries existing on the field as on the day. His finding is not based on the evidence. The evidence would show that the hotel came into existence subsequent to Ex.A-1 registered sale deed. The learned I Appellate Court had made a mistake in this regard observing that the boundaries in Ex.A-1 registered sale deed are not tallying with the boundaries existing on the field as on the day. His finding is not based on the evidence. The evidence would show that the hotel came into existence subsequent to Ex.A-1 registered sale deed. Therefore, the question describing hotel as one of the boundaries to the property sold under Ex.A-1 sale deed would not arise. 28. The disputed question in the suit is whether vegetable shop is located on the road margin of the road located on the northern side of the plaintiff’s site, and if so, whether it was constructed by the plaintiff? 29. As already discussed above, the oral and documentary evidence of the plaintiff, as well the advocate-commissioner report would probable the existence of vegetable shop on road margin from 1979 onwards and it is in possession of the plaintiff. Therefore, when the plaintiff’s evidence proves the existence of vegetable shop, and his possession, the evidence of D.W-2 can be considered as a piece of corroborative evidence, to support the case of the plaintiff. In case for permanent Injunction based on possession of immovable property, plaintiff shall prove his/her possession. He shall succeed on strength of his case. He cannot rely and succeed on the weaknesses in the case of the defendant. In the case on hand the plaintiff proved his possession of the vegetable shop located on the road margin since 1979. His case not rested only on the evidence of D.W-2. The evidence of D.W-2 corroborated the evidence of the plaintiff. 30. The learned trial Judge in his common judgment considered the evidence of plaintiff, defendant and advocate-commissioner’s report in detail with reference to every fact relating to the boundaries claimed by both sides and found that the plaintiff’s case is probable in the circumstances of the case and rightly decreed the suits for permanent injunction. 31. In the light of above facts and circumstances, there is no hesitation for concluding that the learned I Appellate Court committed error in setting aside the common judgment of the learned trial Court. Hence, the common judgment of the learned I Appellate Court is not sustainable on facts or in law. Therefore, liable to be set aside. Consequently, the common judgment of the learned trial Court be restored. 32. Hence, the common judgment of the learned I Appellate Court is not sustainable on facts or in law. Therefore, liable to be set aside. Consequently, the common judgment of the learned trial Court be restored. 32. In the result, both the Second Appeals are allowed, setting aside the common judgment dated 08.10.2002 passed in A.S.34/1996 and A.S.39/1996 on the file of learned Senior Civil Judge, Markapur. Consequently, the common judgment dated 05.06.1996 passed in O.S.271/1986 and O.S.34/1987 on the file of learned Junior Civil Judge, Markapur, is restored. There shall be no order as to costs. As a sequel, interlacutory applications pending in the Second Appeals, if any, shall stand closed.