KARRI MARRIYAMMA Vs. PENUMATCHA RAMAMMA

JUDGEMENT

(1.) Defendants 3 and 4 in O.S.No.1132 of 1983 on the file of the District Munsif, Vijayawada filed this second appeal. The deceased first respondent and her son, the secomd respondent, filed the suit for the relief of perpetual injunction restraining the appellants herein and their vendor, who was impleaded as the first defendant, from causing obstructions in the site lying in between the lines 'JKL' and TADMPU in the plaint sketch and for mandatory injunction directing the appellants herein to remove the thatched sheds raised in the portion shown in the plaint sketch. The trial Court dismissed the suit through its judgment, dated 27.10.1987. Aggrieved thereby, the second plaintiff, i.e. the second respondent herein filed A.S.No.73 of 1989 on the file of the II Additional Subordinate Judge, Vijayawada. The appeal was allowed through the judgment, dated 25.04.1994. Hence, the second appeal. The deceased first respondent had three sons i.e. the second respondent, Ramamurthy Raju; and Satyanarayana Raju. The husband of the first respondent late Subba Raju is said to have acquired an extent of Ac.0.50 cents of land in Sy.No.57/1 of Mutyalampadu, Vijayawada by way of gift from his adoptive father. After his death, it was divided into three plots of 16.2/3 cents each, as shown in the plaint sketch and the three sons were allotted one plot each. The plot of the youngest son Satyanarayana Raju was shown in the name of his mother, the first respondent herein. According to respondents 1 and 2, the only access .to all the three plots to the road from Vijayawada to Nuzvid is "Budameru site", the land covered by a rivulet. It was alleged that Ramamurthy Raju, the first defendant in the suit (who is not made a party to this second appeal), sold parts of his plot in favour of appellants 1 and 2 and they, in turn, had made constructions, obstructing the access to respondents 1 and 2 to the road by encroaching into Budameru site. In the written statement filed on behalf of the appellants, the relationship of the parties, and the factum of sale of part of the land by one of the brothers, were admitted. The respondents were put to strict proof of the allegation that the appellants; have encroached into the Budameru., site. It was alleged that the respondents have no vested right to have access through a Government land namely Budameru site. The first respondent was represented by her G.P.A, the younger son by name Satyanarayana Raju. She died during the pendency of the suit and her legal representatives were not brought on record. Therefore, 'the suit was virtually prosecuted by the second respondent alone. The trial Court dismissed the suit and the appeal preferred by the second respondent was allowed.

(2.) Sri Vivekananda Swamy, the learned counsel for the appellants submits that basically, the respondents claimed easementary rights vis-a-vis Budameru site and the suit was not maintainable without impleading the Government, which is the owner of the same. He further contends that except taking a general plea that they have right of access through Budameru site, the respondents did not adduce any evidence and that there was no justification for the lower appellate Court in reversing the well-considered judgment of the trial Court. A further contention is advanced to the effect that with the death of the first respondent herein and the failure on the part of the concerned, to bring her legal representatives on record, the suit, as a whole, abated and the appeal preferred by the second respondent was not maintainable. Sri V.S.R.Anjaneyulu, the learned counsel for the respondents, on the other hand, submits that there was no dispute as to partition of the house sites, between two brothers and their mother and that the only access for these plots to the road was the Budameru site. He contends that though the suit, in so far as it related to the first plaintiff i.e. the first respondent, abated on account of her death, the cause of action for the second respondent (second plaintiff) did survive and the trial Court committed an irregularity in dismissing the suit, as a whole. He submits that the trial Court appointed a Commissioner, who, after conducting local inspection, submitted a report and the same became part of the record. The learned counsel points out that the report submitted by the Commissioner totally agreed with the plaint sketch and buttressed the contention of the second respondent and that no exception can be taken' to the judgment of the lower appellate Court. As observed earlier, though the suit was filed by respondents 1 and 2, by the time it came up for hearing, the first respondent died and her legal representatives were not brought on record. Therefore, the suit survived vis-a-vis the second respondent. The trial Court dismissed the suit and the lower appellate Court allowed the appeal preferred by the second respondent. From the contentions advanced on behalf of the parties before this Court, three questions arise for consideration, namely:

(3.) Now comes to the third question, which had a bearing on the merits of the matter. It is true that the second respondent herein alone was examined as P.W.1 and he spoke- extensively to the facts pleaded in the plaint as well as the plaint sketch. without any corroboration, it would be difficult to accept such a version. However, the record discloses that the trial Court appointed a Commission and the-said Commissioner, in turn, submitted a detailed report as well as sketch, after conducting inspection.' The learned counsel for the appellants submits that the said report did not become part of the record, so much so, the Commissioner was not examined as a witness. He contends that the reliance placed by the lower appellate Court upon such a report was without any basis. In this context, it nends to be observed that the report submitted by the Commissioner under Rule 9 of Order 26 C.P.C. becomes part of the record, as is evident from Rule 10 itself. The necessity for examination of a Commissioner would arise, if only one of the parties disputes the correctness of the repot. When no objections are filed to the report and when Rule 10 of Ordei 26 C.P.C. mandates that the report, together with the enclosure shall become part of the record of the suit, the mere fact that the Commissioner was not examined, does not disentitle the Court from taking the report into account.