Dismissed

Bonu Saraswathi v. Dandi Kirshna

Telangana HC11 Jul 2011SA/156/2004

Case brief

AI extract

What is this about?

This second appeal concerned a suit for declaration of title and permanent injunction regarding disputed land. The High Court dismissed the appeal, holding that the lower courts' findings on facts regarding encroachment and possession were not perverse and no substantial question of law arose under Section 100 C.P.C. to warrant interference.

What did the court decide?

Second appeal dismissed; no order as to costs.

Bonu Saraswathi Vs Dandi Kirshna — Partition | Telangana HC (2011)

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HON’BLE MR JUSTICE R. KANTHA RAO

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S.A.NO.156 OF 2004

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DATED: 11.07.2011

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BETWEEN: Bonu Sraswathi .. Appellant And Dandi Krishna and others .. Respondents

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HON’BLE MR JUSTICE R. KANTHA RAO

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S.A.NO.156 OF 2004

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JUDGMENT:

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This second appeal is filed against the decree and judgment dated 14.10.2003 passed by the VII Additional District Judge, Kakinada in A.S.No.146 of 1998 confirming the decree and judgment dated 08.07.1998 passed by the Principal Junior Civil Judge, Kakinada in O.S.No.93 of 1992.

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I have heard the learned counsel appearing for the parties.

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For the convenience sake, the parties will be referred as ‘the plaintiff and the defendants’.

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The brief facts necessary for considering the second appeal may be stated as follows:

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The plaintiff filed the suit for declaration of title and permanent injunction in respect of an extent of 400 sq. feet (20 x 20) described as ‘ABCD’ in the plan attached to the plaint. The defendants are the owners of ‘CDGH’ portion of plaint plan and they are neighbours of the plaintiff. Their site is also of an extent of 400 sq. feet (20 x 20). The properties are situated in T.S.Nos.710/1 and 730/1 of Kakinada Municipality. The plaintiff as well as the defendants occupied the respective portions about 40 years prior to the filing of the suit and considering to their long possession, the Government issued pattas in their favour. The fact that each party was granted patta in respect of 400 sq. feet is not in dispute.

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Earlier to the present suit, the plaintiff filed suit in O.S.No.391 of 1983 against the defendants seeking permanent injunction and the said suit was dismissed, however, issuing a direction to the defendants not to interfere with the construction which was in progress made by the plaintiff insofar as the land in her possession is concerned. Subsequently, the plaintiff filed O.S.No.93 of 1992 again contending that the defendants were trying to interfere with her possession and enjoyment of the plaint ‘ABCD’ schedule property. The defendants’ specific contention is that they never encroached the site of the plaintiff and that though the plaintiff was granted patta in respect of 400 sq. feet she falsely claiming declaration of her title in respect of 800 sq. feet for which she is not entitled.

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Before the trial Court, PWs.1 to 5 were examined and Exs.A.1 to A.5 were marked on behalf of the plaintiff and DWs.1 and 2 were examined and Exs.B.1 to B.3 were marked on behalf of the defendants. Exs.C.1 to C.3 and Exs.X1 and X2 were marked.

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An advocate-Commissioner was appointed and his report is crucial in this case. The plaintiff’s version is that there were no lanes provided at the time of layout and that the defendants have set apart a lane in their own site and that the northern lane is included in the defendants’ site. She contended that excluding the said lane, the defendants wrongly claimed to be in possession of more than 20 feet by encroaching into her site. The Commissioner observed that in Ex.B.2 and B.3 pattas clearly indicated that there was a lane to the north of the defendants’ site. The northern boundary is mentioned in red colour in Ex.B.2 and B.3 pattas. Both the Courts below noticed the fact that the plaintiff had categorically admitted the existence of lane in the earlier suit i.e. O.S.No.391 of 1993 to the north of the

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defendants’ site. Both the Courts below also found that against 400 sq. feet site granted to the plaintiff under the patta, the plaintiff claimed in her evidence before the Court that she is in possession of 800 sq. feet. The Commissioner also specifically stated in his report that he did not find any encroachment made by the defendants. Thus, both the Courts below after making proper assessment of the evidence adduced by the plaintiff as well as the findings recorded by the learned Commissioner in his report held that the plaintiff failed to prove that the defendants made any encroachment and accordingly dismissed the suit filed by the plaintiff.

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This Court entertains the second appeal in exercise of powers under Section 100 C.P.C. only when substantial question of law is involved for consideration and this Court will not interfere with the concurrent findings of fact recorded by the Courts below unless they are perverse. In the instant case, the findings of fact recorded by the Courts below are based on the evidence on record and with reference to the pleadings of the parties. This Court will not interfere with the said findings of fact arrived at by both the Courts below as no substantial question of law is involved for consideration in this second appeal.

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The second appeal is therefore, dismissed. There shall be no order as to costs.

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________________ Date: 11.07.2011 R. KANTHA RAO, J kvrm

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HON’BLE MR JUSTICE R. KANTHA RAO

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S.A.NO.156 OF 2004

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DATE: 11.07.2010

Bonu Saraswathi v. Dandi Kirshna

Case brief

What is this about?

What did the court decide?

Bonu Saraswathi v. Dandi Kirshna

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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