ORDER
P.S. Narayana, J.
1. Heard Sri N. Srirama Murthy, Counsel for the appellant and Sri Chidambaram, Counsel representing the respondent.
2. The unsuccessful defendant in AS.No. 52/82 on the file of Subordinate Judge, Chirala is the present appellant. The respondent/plaintiff instituted the suit OS No. 690/80 on the file of I Additional District Munsif, Chirala for permanent injunction restraining the defendant from closing the passage of 15 links width and 41 links length which was shown in the plaint plan CC1 EF in any manner whatsoever. At the appellate stage, the plaint was amended seeking the relief of declaration of title as well. The Trial Court on the strength of the respective pleadings of the parties had settled the Issues and had examined PW1 to PW8 and DW-1 to DW-3 and also marked Exs.A-1 to A-15, Exs.B-1 to B-5 and Ex.X-1 and had ultimately came to the conclusion that the plaintiff has neither possession nor title over the suit schedule site and had dismissed the suit and aggrieved by the said judgment and decree made in OS No. 690/80 on the file of I Additional District Munsif, Chirala, the plaintiff had carried the matter in Appeal in AS No. 52/82 on the file of Subordinate Judge, Chirala and in Appeal additional evidence was received and a document, registration copy of the sale deed executed by the plaintiff in favour of the defendant dated 14-5-1974, was marked as Ex.A-16. It was also specifically observed in the operative portion of the judgment of the appellate Court that in view of the additional evidence adduced in this appeal, the judgment and decree passed by the Trial Court in OS No. 690/80 dated 31-8-1982 are hereby set aside and the suit was decreed with costs as prayed for throughout. Aggrieved by the same, the present Second Appeal is preferred.
3. Sri Sriram Murthy, the learned Counsel representing the appellant had drawn my attention to the substantial questions of law framed as Ground No. 12 (a) to (c) in the grounds of Second Appeal. The learned Counsel had made elaborate submissions relating to the recitals in Ex.A16 and also Ex.A14 and had contended that the documents and the recitals therein were misconstrued or at any rate had not been properly construed which had definitely resulted in causing prejudice and injustice to the appellant. The learned Counsel also had taken me through the other documentary evidence relied upon by the parties Ex.A1 the plaint plan, Ex.A2 dated 9-11-1978 - Photostat copy of mortgage deed executed by PW1, Exs.A-3 to A-10 - House tax receipts, Ex.A.11 - Report of the Commissioner dated 26-11-1980, Ex. 13 Gift deed, Ex.A-14 -Partition deed between Sankaraiah and PW.1 dated 12-5-1974, Ex.A-15 - Sale deed executed by Veeraiah in favour of Venkanna and also Ex.B-2 Registration extract of Ex.A14, Ex.B.3 -Plan filed by the defendant, Ex.B-1 -Registration extract of sale deed executed by Maddukuri Krishnavenamma in favour of Maddukuri Singayya and Sankaraiah and Ex.B-4 - Sale deed executed by Maddukuri Chimpiri in favour of Papaiah and Ex.B.5 -Registration extract of sale deed executed by Maddukuri Seethammamurthy in favour of Ratnaiah. The learned Counsel had referred to Ex.X.1, the settlement deed executed by Manduri Brahmaiah in favour of Manduri Krishnavenamma dated 10-8-1939. The learned Counsel also had taken me through the oral evidence in general and the evidence of DW-2 in particular. DW.2 is none other than the uncle of the plaintiff. The learned Counsel contended that the judgment of the Trial Court is a well considered judgment and no doubt the appellate Court had made some discussion, but had not considered all the factual aspects and was mainly carried away by the recitals of Ex.A-16. The learned Counsel further contended that the appellate Court having allowed Ex.A-16 to be brought on record by way of additional evidence had not afforded proper opportunity to the parties to let in evidence in this regard to explain their respective stands. The learned Counsel also made elaborate submission relating to Ex.A1 - Plaint plan, Ex.B3 - Plan filed by the defendant and Ex.A.11-report of the Commissioner.
4. Sri Chidambaram, the learned Counsel representing the respondent/plaintiff had submitted that the stand taken by the appellant that on the strength of the Ex.A.16 alone the judgment and decree of the Trial Court had been reversed, cannot be said to be correct for the reason that the appellate Court had discussed the entire evidence at paragraphs 12 to 17 of the judgment and hence in this view of the matter, it cannot be said that the said judgment suffers from any legal infirmity. The learned Counsel also had taken me through the recitals in Ex.A.6, Ex.A-14 and the plaint plan and also had contended that in the light of the clear evidence adduced relating to the plaint schedule property by the respondent/plaintiff, the evidence of DW2 may not be of much help. The learned Counsel also had explained, in the light of Ex.A.16 and Ex.A.14, how the documents relied upon by the appellant i.e., Ex. B-4 and Ex.B.5, may not be of any help.
5. Heard both the Counsel and also perused the oral and documentary evidence available on record.
6. The substantial questions of law which were framed in the Second Appeal are as hereunder:
(a) Whether the lower appellate Court is right in reversing the well considered judgment of the Trial Court by misconstruing the recitals of ExA.16 and decreeing the suit overlooking Ex.A. 14 which clearly states that the Southern boundary is 135 links in length of the appellant site?
(b) Whether the lower appellate Court is justified in holding that the respondent suppressed the existence of two doorways to his house to the Western side in his plan in decreeing the suit filed by the respondent overlooking his own document which clearly shows that there is way for all the residents to reach the Southern Bazar and not the alleged Galli shown in the plaint plan?
(c) Whether the lower appellate Court as right in admitting the document Ex.A16 and holding that the appellant is having only 95 links and the rest is suit Galli for the passage of the respondent?
7. The parties are hereinafter referred to for the purpose of conveniences as plaintiff and defendant as arrayed in the Trial Court. In the plaint it was pleaded that the plaintiff is the owner of the plaint scheduled property. The plan filed along with the plaint forms part of the suit. The plaintiff is in exclusive possession of the plaint schedule property. The fore-fathers of the plaintiff and the defendants are brothers and the houses shown in the plan are the ancestral property in which the plaintiff and defendant removed their old thatched houses and constructed terraced houses. ABCD of the plan is the house of the plaintiff and EFCD is the site in which the plaintiff is having cattle shed. The fore-fathers of the plaintiff and the defendant have agreed to leave 15 links width of space and 41 links of length for passage long time back and both of them are using the passage between CCI F. The plaintiff also perfected his right of way through CCI and is using the passage for more than 30 years and perfected his right of way. While the matters were so, the defendant due to some differences with regard to the land disputes hatched up a plan and is for the last two days attempting to close the passage between CCI and EF by constructing a wall between CCIEF. The plaintiff several times informed the defendant not to indulge in such constructions but all his efforts are in vain. Hence the plaintiff is constrained to file this suit for permanent injunction against the defendant restraining him from closing the passage CCIF by constructing any wall etc.
8. The defendant filed a written statement denying all the allegations. The defendant had taken a specific stand that the plan filed by the plaintiff is not correct and it is misleading and the correct plan filed by him forms part and parcel of his written statement. It was further pleaded that the plaintiffs father and one Sri Maddukuri Sankaraiah being brothers are the owners of the house and site situated on the North of the defendant's house. On 13-5-1974 the present plaintiff and Sri Maddukuri Sankaraiah entered into a partition deed having settled the properties in between them in respect of the houses and sites. The partition deed clearly shows that the plaintiff and his co-owner had their right of way into the Western side bazaar through the door ways as shown in the plan filed by the defendant. As per the boundary on the Southern side, it is clear that the defendant is having his site throughout i.e., 135 links up to the site of the plaintiff. As per the document dated 13-5-1974, it is amply clear that the plaintiffs and co-sharers are having right of way through the Western bazaar. The said bazaar is absent in the plaint plan and wantonly it is suppressed to gain the injunction causing irreparable loss and injury. The question of the plaintiffs contention that he is having a right of way through CC1 is a self-serving statement which is not borne out either in his documents or otherwise. The question of prescription of right does not arise. The defendant is in no way related to the plaintiff. The allegation that the forefathers have agreed to leave alleged space is absolutely false. Even as per the document dated 27-7-1913 which is a sale deed executed by late Maddukuri Chimpiri, son of Venkanna in favour of late Sri Yarlagadda Papaiah, son of Ramakrishnaiah who are the Southern and Eastern side owners now at present in the hands of Yarlagadda Tirupataiah would clearly prove that the alleged suit Galli is not there. The defendant left out the open space in front of the house for tethering the cattle etc. On the Northern side of the defendant's house there is a joint Varasandu belonging to plaintiff and defendant which is left for attending the repairs of the respective walls. The plaintiff is having a door way into the said Varasandu for attending the repairs of the wall. Similarly, the defendant is also having a door way on the Eastern side in the Northern compound wall which was closed recently as the plaintiff raised level of the house which resulted in flowing of water into the compound of the defendant. The plaintiff, having stored the dried cotton stumps inside the house and in front of the door causing construction or opening of the doors through the Western bazaar played drama and obtained Commissioner's report in their favour. This was a daring plan of the plaintiff to claim a wrongful way by illegal means. His co-owner under a partition deed dated 13-5-1974 Sri Maddukuri Sankaraiah is exercising a right of way as stated by the defendant as shown in his plan and he is giving affidavit to that effect. The owners on the Western side of the bazaar are also giving affidavits to show that the plaintiff and the defendant and other owners are exercising right of way through Western bazaar. The plaintiff deliberately wanted to suppress the existence of doorway into the Western side Galli and hence he deserves no injunction much the less, temporary injunction. The defendant, with a view to construct a compound wall, purchased the materials and stored the same. The plaintiff hurriedly rushed to the Court and obtained interim injunction. The plaintiff has no right to stop the construction within the site of the defendant nor he has got any easement right over the said site. The plaintiff never used the site of the defendant for his way and it is baseless. The suit as framed is not maintainable in its form. The suit is false, frivolous and vexatious and it is liable to be dismissed with costs.
9. On the strength of these pleadings, before the Trial Court, the following Issues were settled:
1. Whether the plaintiff is entitled for permanent injunction as prayed for?
2. To what relief?
As already referred to supra, on appreciation of both oral and documentary evidence, the suit was dismissed. In the Appeal, at paragraph 11, the Point for determination was framed and the appellate Court after discussing Ex.A14 and Ex.A16 came to the conclusion that the suit of the plaintiff has to be decreed with costs throughout. The appellate Court also had observed that the existence of disputed Galli has not been shown in Ex.A14, but mainly placed reliance on the recitals of Ex.A16 and had discussed this aspect in detail at paragraphs 16 and 17. When the appellate Court was inclined to reverse the matter on the strength of the recitals in a particular document, which was filed by way of additional evidence, the appellate Court should have given opportunity to both the parties to let in further evidence to explain their respective stands in this regard. In this view of the matter, the appellate Court had not followed the proper procedure by virtue of which the appellant's rights are prejudiced. No doubt, the Counsel for the respondent had pointed out certain other reasons which had been recorded by the appellate Court while reversing the judgment of the Trial Court. But, as can be seen from the judgment of the appellate Court, the main discussion of the appellate Court revolves around both Exs.A.14 and Ex.16 and it is needless to repeat that Ex.A16 was permitted at the later stage. No doubt, both the Counsel had made elaborate submissions about the other oral and documentary evidence available on record and several of the probabilities in favour of and again the respective parties. In the light of the view I had taken in relation to Ex.A16, I am not inclined to record any reasons in detail about the other aspects and all those questions also are left open to be agaitated by both the parties before the appellate Court. Inasmuch as, no opportunity was given to the parties to let in evidence in relation to the additional evidence which was admitted at the appellate stage, I am inclined to remand the matter to the lower appellate Court for the purpose of affording opportunity to both the parties to let in evidence in relation to Ex.A.16. As already referred to supra, all the other questions also are left open to be decided by the lower appellate Court afresh. Thus, the judgment and decree made in A.S.No. 52/82 on the file of Subordinate Judge, Chirala are hereby set-aside and the matter is remanded to the appellate Court for the purpose of affording opportunity to both the parties to let in further evidence in relation to Ex.A16. It is also made clear that the parties are at liberty to urge all other aspects also which they had argued at length before this Court.
10. The Second Appeal is allowed to the extent indicated above. However, in the facts and circumstances of the case, each party to bear their own costs.