SHAIK FATHIMA BI Vs. SHAIK NANNE SAHEB

JUDGEMENT

(1.) Heard Sri Narayana the learned Counsel representing Sri M. Ravindranath Reddy, Counsel for the appellant and Sri M.P. Chandra Mouli, Counsel representing the 2nd respondent.

(2.) Shaik Fathima Bi, the plaintiff in O.S.No.45/85 on the file of District Munsif, Gudur, being aggrieved of the reversal of the said judgment and decree made in A.S.No.18/93 on the file of Principal Subordinate Judge, Gudur had preferred the present second appeal. The defendant in the suit, Shaik Nanne Saheb, died during pendency of A.S.No. 18/93 and the legal representatives of the deceased 1st appellant therein in A.S.No. 18/93 were brought on record in I.A.No.113/90 dated 6-4-1993. It would be appropriate to make a mention here itself that as against Respondents 3 and 4, the legal representatives of Shaik Nanne Saheb, the second appeal was dismissed for default and the other legal representative Shaik Najeer Ahmed, 2nd respondent in the second appeal alone is on record at present. The Counsel on record advanced contentions taking this Court through the findings recorded by the Court of first instance and by the first Appellate Court as well. The Counsel representing the appellant would contend that the well reasoned judgment of the Court of first instance had been reversed by the Appellate Court and on the contrary the Counsel representing the 2nd respondent would contend that this being a suit for permanent injunction, a personal action, in view of the fact that the appeal was dismissed for default as against Respondents 3 and 4, the same need not be considered on merits even as against the 2nd respondent, the other legal representative of the deceased defendant. The Counsel also pointed out to the findings recorded by the Appellate Court and would maintain that in the facts and circumstances of the case, the same may have to be confirmed. While admitting the second appeal on 13-6-1997, this Court framed the following substantial question of law: "Whether the report of a Commissioner cannot be taken as a part of record unless marked as an exhibit in the suit."

(3.) Appellant herein, the plaintiff in O.S.No.45/85 on the file of District Munsif, Gudur, filed the suit against Shaik Nanne Saheb, the defendant in the suit praying for the relief of permanent injunction restraining the defendant, his men from in any manner obstructing the plaintiff and her men from making use of path way on the North of schedule mentioned property. The respective pleadings of the parties are as hereunder: