THUMMALA KANAKAMMA Vs. VOTTIKALA VENKATASWAMYAND

JUDGEMENT

(1.) This appeal is filed against the judgment and decree dated 17th August, 1989 passed in A.S.No.85 of 1986 (A.S.No.82 of 1985 on the file of the Sub Court, Kavali) on the file of the Subordinate Judge, Kovur confirming the judgment and decree dated 28-8-1985 in O.S.No.101 of 1981 on the file of the Additional District Munsif, Kovur in Nellore District.

(2.) Necessary facts, for the disposal of this appeal, are as follows: Plaintiffs and defendants are owners of adjacent lands. The plaintiffs claimed that the defendants encroached into Ac.0.03 Cents of land belonging to the plaintiffs. They filed the suit for declaration of their title and possession of the said land. The defendants contested the suit taking the plea that they did not encroach into any land belonging to the plaintiffs. During the pendency of the suit the Trial Court appointed a local Advocate as Commissioner to take measurements of the disputed lands, note the physical features and file his report. The Commissioner filed his report. He gave evidence as PW.2. His report and plan are marked as Exs.C2 and C3. On a consideration of evidence adduced by both the parties the trial Court came to the conclusion that the defendants encroached into the land of the plaintiffs. However, the trial Court dismissed the suit on the ground that plaintiffs failed to establish the total extent of the land encroached by the defendants and to localize the area encroached by the defendants. Aggrieved by the said judgment and decree of the trial Court the plaintiffs preferred an appeal. The lower Appellate Court concurred with the findings of the trial Court and dismissed the appeal. Aggrieved by the judgment of the lower Appellate Court the plaintiffs preferred the present appeal.

(3.) At the time of admission of this appeal the learned Admission Judge treated the following points formulated in the memorandum of appeal as substantial questions of law that arise for consideration in the present appeal.