THUDIMELLA LAKSHMINARAYANA Vs. THUMMALA NARASAIAH NAIDU

JUDGEMENT

(1.) Heard Sri Mahadeva, the learned Counsel representing the appellants and Sri Somakonda Reddy, the learned Counsel representing the respondents.

(2.) The substantial questions of law raised in the present second appeal as per the order made on 21-3-1997 are: (A) Whether on the facts and circumstances of the case a suit for mandatory and perpetual injunction can be entertained after a long lapse of the construction of the hut in question for removal of the same? (B) Whether on the facts and circumstances of the case can the Court below substitute the Advocate Commissioner report and Mandal Surveyor report so far as the free ingress and egress of the plaintiffs without there being any objections filed by the plaintiffs to the said report? (C) Whether the Court below is right in shifting the burden on the defendants on the face of Section 101 of the Evidence Act? (D)Whether the order in appeal is sustainable in view of the judgment reported in AIR 1969 AP 368 without there being any necessity to remove the encroachment in view of Ex.X-4? In C.M.P. No.3092/97, interim suspension also had been granted. Both the Counsel had taken this Court through the respective pleadings of the parties, the findings recorded by the Court of first instance, the findings recorded by the Appellate Court, the report of the Commissioner and also the oral and documentary evidence available on record. 2. The respondents herein, plaintiffs, filed O.S. No.323/87 on the file of District Munsif, Badvel against the appellants/ defendants praying for mandatory injunction to remove encroachments El and E2 and also for permanent injunction restraining the Appellant No. 1/Defendant No.1 from making further constructions in respect of E2 in the plaint plan and pass such other suitable orders. The Court of first instance recorded the evidence of PW-1 to PW-3, DW-1 to DW-3, marked Exs.A-1 and A-2 and Ex.B-1 and also Exs.X-1 to X-4 and ultimately dismissed the suit without costs. Findings recorded by the Court of first instance are that the plaintiffs are not entitled to the mandatory injunction and the suit is bad for misjoinder of necessary parties and the 2nd defendant is in possession of rastha poramboke for about 15 years. Aggrieved by the same, the unsuccessful plaintiffs had carried the matter by way of Appeal A.S.No.38 of 1993 on the file of Subordinate Judge, Rajampet and the Appellate Court reversed the same and aggrieved by the same the defendants had preferred the present second appeal.

(3.) Here itself it may be noted that though the suit was dismissed by the Court of first instance, finding had been recorded relating to the encroachment on the rastha poramboke and the same finding had been recorded even by the Appellate Court and thus the said finding, a finding of fact, is a concurrent finding by both the Courts below though the ultimate result is different.