KONDAMMA Vs. V RAJAMMA

JUDGEMENT

(1.) The judgment and decree in A.S.No. 18/1994 on the file of Principal Subordinate Judge, Anantapur, dated 14-6-1995, reversing the judgment and decree in O.S.No. 74/1984 on the file of Principal District Munsif, Anantapur, dated 23-11-1987 and consequently decreeing the suit of the plaintiff for declaration of the right of way of the respondent-plaintiff to the western road and for consequential perpetual injunction as well as mandatory injunction directing the appellants to remove Cuddapah stone slabs fixed across the suit way, are challenged by the defendants in this second appeal. The parties will be referred to as arraigned in the trial Court.

(2.) The facts of the case in brief are: That the plaintiff's father purchased the plot on 20-1-1947 and constructed the house in the year 1954. On his death the house was mutated in the name of the plaintiff in the municipal records on the representation of her brothers and sister . The Government sub-divided the survey number and patta was granted to the plaintiff. Ever since the construction of the house in 1954, her father and after his death, plaintiff used to pass through north-west corner where there is a gate at point 'A' and join the road on the west. The house of defendant No. 1 is on the western side and the house of defendant No.2 is on the northen side of the plaintiff's house. When the defendants started obstructing the plaintiff from having ingress and egress to the western road, she filed a suit for declaration of her right of way and for perpetual injunction restraining the defendants from interfering with her right and also mandatory injunction to remove the obstruction of Cuddapah slabs to the passage. Both the defendants contested the suit. Defendant No. 1 averred that there was no notice of sub-division to her and hence she is not bound by the proceedings. She preferred an objection petition before the Revenue Authorities and fresh proceedings are ordered after notice to the concerned parties and the matter is still pending with the revenue authorities. To the best of her knowledge, no portion of the site of the plaintiff touches the western road and there was no entrance to that site from the western road and there was no gate. There is a public road on the south of her house and that is the entrance to her plot. The plot of defendant No. 1 which is on the western side and the plot of defendant No. 2 which is on the northern side are both triangular in shape and they meet at the apex point and the plaintiff has no right, title or any interest in the alleged Rastha. Defendant No. 2 filed a separate written statement, but raised same averments as defendant No. 1. It is asserted that no portion of the plot of the plaintiff touches the road on the north-west corner and she has no legal right to claim any declaration of right of way across the plots of defendants Nos. 1 and 2.

(3.) The following issues have been framed on the above pleadings: (1) Whether the plaintiff is the owner of D.No. 12/590 in Jesus Nagar? (2) Whether the plaintiff has no access to the road towards the northwest corner of her house? (3) Whether the sub-division record is true, valid and binding on the defendants? (4) Whether the plaintiff is entitled for declaration and injunction as prayed for? (5) Whether the plaint plan is correct? (6) To what relief? The plaintiff examined herself as PW.1 and she also examined one Narasimhappa, who was cultivating her land and visiting her house in that connection as P.W.2 and A.K. Jaya Raj, a retired Police Constable as P.W.3. P.Ws. 2 and 3 are examined to substantiate her case that she was having ingress and egress through north-western corner to the western road. Exs.A-1 to A-5 are marked. Ex.A-1 is registered sale deed, dated 20-1-1947 in favour of the plaintiff's father, Ex.A-2 is the order of Tahsildar, dated 29-10-1983, Ex.A-3 is plaint plan, Ex.A-4 is surveyor plan and Ex.A-5 is sub-division survey proceedings in T.S.No. 846/84, dated 5-9-1986. In rebuttal, defendant No. 1 examined herself as D.W.I. She also examined three other witnesses as D.Ws. 2 to 4. D.W. 2 B. Nagendra and D.W. 3 B. Guru Murthy are having houses in the neighbourhood and they deposed that there is no path way for P.W. 1 through D.W.l's open place. D.W.4 Parthasarathy is a Junior Assistant in Revenue Divisional Officer's Office and he speaks about the pending appeal relating to sub-division and survey in the office of Revenue Divisional Office and Exs.A-5, X-1 and X-2 are marked through him. Ex.B-1 is registered sale deed, dated 9-8-1951 in favour of defendant No. 1. The learned District Munsif scrutinized the above evidence and held that the plaintiff could not substantiate her contention that her house touches the western road or that she has access to the road from the north-west corner and that the sub-division as evidenced by Ex.A-4 surveyor's plan is not valid and not binding on the defendants as it is pending disposal before the Revenue Divisional Officer. Accordingly the suit has been dismissed with costs.