GURRAM SANJAPPA Vs. GURRAM PEDDA THIPPAIAH

JUDGEMENT

(1.) This Court on 16-8-2006 admitted the Second Appeal on the following substantial questions of law raised in Ground Nos.l, 3 and 4 of the Memorandum of Grounds of Second Appeal:

(2.) Sri O.Manohar Reddy, the learned Counsel representing the appellants had taken this Court through the Findings recorded by the Court of first instance and also the appellate Court and would contend that in the absence of acceptable evidence to prove the case of the plaintiff, decreeing the suit is bad in law. The learned Counsel also had further explained that even otherwise the Court of first instance decreed the suit with costs and the same was modified by the appellate Court and hence it cannot be said that the findings recorded by both the Courts below are concurrent findings. The learned Counsel also explained that the prior litigation referred to would not operate as res judicata and placing reliance on such Judgments and findings recorded therein are unsustainable. The learned Counsel also pointed out to the relevant portions of the findings of the Court of first instance and also the appellate Court and would further] contend that at any rate this splitting of the relief and granting the relief a portion cannot be sustained.

(3.) Sri Prasad, the learned Counsel representing the present respondents in the present Second Appeal, the legal representatives of the plaintiff, would contend that as far as the declaratory relief is concerned, the declaration as such was granted and the same was confirmed even by the appellate Court, but as far as the relief of permanent injunction is concerned, the same was modified inasmuch as the owner of the AB property which falls in a different survey number, had not been impleaded. However the Counsel would submit that the appellants are not much aggrieved of that modified order made by the appellate Court and in that view of the matter, inasmuch as the findings recorded by both the Courts below being concurrent findings and further in view of the fact that the parties are close relatives i.e., brothers, and these respective properties had fallen to their shares for convenient enjoyment the respondents are entitled to exercise the right of way especially in the light of Section 13 of the Indian Eastments Act 1882.