Telangana High Court
Smt. C. Padma vs L. Ram Reddy on 3 June, 2024
Author: P.Sree Sudha
Bench: P.Sree Sudha
THE HONOURABLE SMT JUSTICE P.SREE SUDHA
SECOND APPEAL NO.391 OF 2023
JUDGMENT:
This Second Appeal is filed with a prayer to allow the appeal by setting aside the judgment of the First Appellate Court dated 21.06.2023 in A.S.No.5 of 2019 on the file of Principal District Judge at Medak, thereby to confirm the judgment and decree dated 20.04.2018 in O.S.No.48 of 2009 on the file of Senior Civil Judge, at Medak.
2. O.S.No.48 of 2009 was filed before learned Senior Civil Judge Court, Medak by the plaintiff, initially against defendant No.1/Municipal Commissioner, Medak for permanent injunction restraining the officials of defendants from interfering and dismantling the structures in respect of suit schedule property. Later defendant No.2 was impleaded as per orders in I.A.No.57 of 2012, dated 03.07.2012. Plaintiff preferred Civil Revision Petition No.3245 of 2012 against the said order before this Court but this Court confirmed the order of the trial Court on 22.08.2013.
3. It was stated by plaintiff that she is the absolute owner of the premises bearing Nos.3-9-128/1, 128/2, 128/2/1 consisting of Ground + 2 upper Floors, situated on the main 2 Road of Auto Nagar, Medak Town, Medak District totally admeasuring Ac.131.38 square yards more clearly described in the schedule and hereinafter referred to as "suit schedule property". It was further stated by the plaintiff that originally she purchased two mulgies and appurtenant land under 3 registered sale deeds i.e., one mulgi admeasuring 52.07 square yards is purchased from Smt.R.Uma Maheswari by way of registered sale deed, dated 08.10.1997, vide document No.933/1997 duly registered before the Sub-Registrar, Medak for a consideration; another mulgi admeasuring 39.22 square yards adjacently located is purchased by her from Smt.R.Uma Maheshwari by way of registered sale deed, dated 08.10.1997, vide document No.934/1997 duly registered before the Sub Registrar, Medak, for a consideration, and the appurtenant land admeasuring 40.09 square yards is purchased by the plaintiff from her vendor Sri L.Linga Reddy by way of registered sale deed, dated 30.12.2004, vide registered document No.1/2005 for a consideration, totally admeasuring 131.38 square yards. That the plaintiff after purchasing two mulgies in the year 1997, started carrying on business and later, a piece of land located on the southern side of the mulgi was offered to sell and after deliberations, 3 the plaintiff has purchased the same admeasuring 40.09 square yards in the year 2004 with an intention to construct upper floors. Accordingly, the plaintiff has obtained Municipal Sanction permission from the defendant for construction of two upper floors i.e., First and Second Floors, and after thorough scrutiny, the defendant has granted sanction permission vide Proceedings No.C1/61/1849/2007, dated 12.06.2008. In pursuance of the permission, the plaintiff has proceeded with the construction and completed the construction work and it was also mentioned that the officials of defendant Counsel visited the site during construction and ever raised any objection. Plaintiff completed the construction of two upper floors and the defendant also assigned Municipal Nos., as 3-9-128/2/1 and 128/2/2 and fixed the tax and accordingly, collected Municipal Taxes from the year 2008-09 and 2009-10.
4. While so, the Government of Andhra Pradesh has floated a scheme for Regularisation of Buildings which are constructed without Municipal permission or constructed with deviations. The plaintiff availed the said scheme for regularization of the balconies made in upper floors which are done to suit vaastu and as per the advice of vaastu experts, 4 however, the said deviations are not against to public policy or affecting any neighbours of any public. The plaintiff paid requisite fee along with application. While the said process is pending and the plaintiff is enjoying the peaceful possession, the defendant has got issued a notice dated 16.05.2009 under Section 228(1) of the Andhra Pradesh Municipalities Act to the plaintiff and upon receipt the plaintiff replied the same by her reply dated 18.05.2009 narrating the details, the same is duly acknowledged by the defendant.
5. In the last week of July, 2009, the officials of the defendant came to the suit schedule property and tried to interfere in the peaceful possession and tried to destruct the peaceful possession and threatened to dismantle the structures existing without assigning any reasons. It is nevertheless to submit here that the defendant themselves accorded permission after collecting huge fee and later, assigned Municipal numbers and collected taxes for two consecutive years and in pursuance of BRS Scheme, again collected huge sums for regularization of balconies, subsequently interfering in the peaceful possession is not valid and against to public policy. It is not out of place to mention here that the officials of the defendant have again 5 tried to interfere in the suit schedule property on 02.08.2009 and 04.08.2009 with some men and labour and attempted to remove the structures. Hence, she filed suit for injunction.
6. Heard learned counsel for the appellant and learned counsel for the respondents.
7. In a written statement filed by defendant No.1 it was stated that sanctioned plan was granted in the month of June, 2008. Hence, payment of tax for the year 2008-09 onwards for the newly constructed floors is not correct. They also stated that plaintiff did not file BRS application within the permissible time as such they issued notice under Section 228 under Municipality Act on 16.03.2009. Later on the confirmatin order was also prepared but meanwhile the plaintiff obtained status quo orders from this Court. They also stated that there is no BRS proceedings process is pending with respect to schedule property. Defendant No.1 further stated that plaintiff protruded the construction of 1st and 2nd floors into public passage which leads to Nalla Pochamma Temple from the main road and hence the deviations in constructions are causing public nuisance and liable to be demolished. In case the plaintiff does not remove the said deviations in constructions, the defendant is entitled 6 to remove the same under the law in public interest. Therefore, requested the Court to dismiss the same.
8. Defendant No.2 also filed a detailed written statement. He disputed the title of plaintiff that she gave an application for regularizatin under scheme itself shows that the she made construction by encroaching the temple passage and made illegal construction. He also stated that defendant No.1 issued notice but defendant No.1 kept quite as silent spectator without taking any consequential action for demolition of illegal construction.
9. He further stated that the ancestors of defendant No.2 herein were the owners and pattadar of land in survey No.1263 of Medak and the defendant No.2 is also owner and pattader of land to an extent of Ac.5 ½ guntas in the above survey number and paying the land revenue regularly to the Revenue authorities. About 50 to 60 years back the ancestors constructed the temple, the said temple known as in Medak town "Nalla Pochamma Temple". In the said temple every year in the month of June between 1st to 2nd weeks a carnival will be held and the entire Medak town people and surrounding people will present for said festival. The defendant No.2 and his brothers being the family members of 7 original founders of the temple taking care of the temple. He stated that from main road to temple passage is existing to approach the temple and all the devotees use the said passage to have a darshan of "Ammavaru". Towards main road abutting to the passage towards northern side two shops exist, the same belongs to plaintiff herein. Immediately back side of the said shops towards western side of the temple an open place is existing and all the devotees use the same.
10. He further stated that brother of defendant No.2 i.e., Mr.L.Linga Reddy sold an extent of 40.09 square yards in survey No.1263/part, of temple land to the plaintiff herein through registered sale deed. After purchasing the same plaintiff have applied for granting of permission to construct on 12.06.2008 as per the annexted plan. Thereafter, plaintiff constructed 1st and 2nd floors on the existing ground floor. He stated that plaintiff constructed the 1st and 2nd floor by deviating the sanction plan and encroaching approximately 3 feets of temple passage and contrary to the sanctioned plan she opened the shutter facing towards southern side by putting the staircase, the said fact is evident from the sanctioned plan, by erecting the shutter towards southern 8 side using the temple passage of their personal sake by parking their own vehicles on the temple passage by blocking the same, thereby the devotees are facing problem to approach the temple.
11. Defendant No.2 made a written representation to Municipality on 07.02.2009 with a request to take immediate action for removing the illegal constructin and close the shutter. When Municipality not taken any action, defendant No.2 approached Lok Auykta and Upa Lok Ayukta, and made a complaint on 30.03.2009 against the Municipal Commissioner, Medak i.e., defendant No.1 herein. The Institution of Lokayukta of A.P. taken the complaint on file and registered the complaint vide Proc.No.395/2009 and issued Form No.V dated 28.04.2009 and called for report from the Municipal Council and basing upon the report of Municipal Council, the Principal Secretary to Government & Chairman, Municipal Administratin & Urban Development filed the letter dated 12.08.2009 before A.P.Lokayukta, the same forwarded to the defendant No.2 by fixing date of hearing on 29.10.2009 accordingly defendant No.2 filed the objection to the report on 28.11.2009 bringing all the facts to the notice of Lokayukta. The Lokayukta adjourned the 9 matter for submitting the survey report to 29.12.2009 and the defendant No.2 submitted the survey report on 19.01.2010, then again the Principal Secretary to Government, Municipal Administration Department submitted letter on 17.04.2010 objecting the survey report, to the said letter.
12. Defendant No.2 filed another letter on 14.10.2010 with a request to Lokayukta to call for fresh report. Then the Municipal Commissioner, Medak/Defendant No.1 filed the letter stating that the owner of the premises filed the suit before the Civil Court and the same is pending as such Lokayukta directed defendant No.2 to approach competent Civil Court. As such, he was impleaded in the suit and came to know about the notice issued by defendant No.1 to the plaintiff. He stated that plaintiff purchased property from her on 08.10.1997 and vendor of plaintiff herein purchased the open plot to an extent of 60 sq.yards from the father of the defendant No.2 through GPA Holder L.Linga Reddy in the year 1993 vide Doc.No.1162/1993 in survey No.1263/part and she applied for permission for construction of shops and obtained the permission to construct ground floor vide sanctined plan vide No.C1/977/1993 dated 16.07.1993 and 10 construction made in the total area 50.17 square meters and built up area 30.41 square meters by leaving setbacks.
13. It is further submitted that the plaintiff herein and vendor with an intention to occupy the temple passage made a plan in the year 1997 and made two different documents and got registered two documents to an extent of 90 square yards, thereafter since 1997 onwards the plaintiff not taken any steps for more than 10 years and finally in the year 2004 purchased an extent of 40 square yards and applied for permission of first and second floor by hand in glow with the Municipal authorities and obtained permission vide proc.No.C1/61/1849/2007 dated 12.06.2008 to first and second floor for 108.71 square meters and the Municipality/defendant No.1 has given permission to the existing old building, but the existing old building area 50.17 square meters and the present sanctioned plan area 108.71 square meters and the Municipality even without checking relevant documents before granting permission, straight away issued permission to an extent of 58.54 square meters. Thus the plaintiff herein contrary to old permission of the year 1993 and also present sanctioned plan dated 12.06.2008 made the construction by encroaching the temple passage, 11 thereby it causing the serious inconvenience to the public in general and also to defendant No.2 for developing temple and stated that suit itself is not maintanable and requested to dismiss the same.
14. Plaintiff examined herself as P.W.1 and also examined two witnesses on her behalf. Defendant No.2 examined himself as D.W.4 and D.Ws.1,2,3,5 & 6 were examined on behalf of defendants. Exs.A.1 to A.10 were examined on behalf of the plaintiff and Exs.B.1 to B.10 were examined on behalf of defendants were also filed. The trial Court considering the oral and documentary evidence decreed the suit of the plaintiff and aggrived by the said order defendant No.1 did not preferred any appeal but defendant No.2 preferred an appeal and in the Appellate Court judgment of the trial Court was reversed. Aggrieved by the said order plaintiff filed this second appeal on the following substantial question of law:
a) Whether the First Appellate Court is right in reversing the well-reasoned and well-
considered judgment and decree passed by the trial Court in O.S.No.48 of 2009 after exhaustive trial?
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b) Whether the First Appellate Court can reverse the trial Court judgment by substituting its opnion over the decision of the trial Court and by going beyond the scope of the Specific Relief Act and specifically when no relief was sought against the respondent No.1 herein (Appellant in A.S.no.5 of 2019) in the suit bearing O.S.No.48 of 2009?
c) Whether the First Appellate Court grossly erred in going beyond the scope of the nature of the suit filed by the appellant which is sought for the relief of bare injunction against the respondent No.2 (Municipal Council) only?
d) Whether the First Appellate Court can dismiss the suit bearing O.S.No.48 of 2009 against the respondent No.2 herein (Municipal Council), which has not preferred any appeal before the First Appellate Court?
e) Whether the First Appellate Court go against the settled principal of 'dominus litis' in allowing the appeal of the respondent No.1?
15. The first Appellate Court observed that defendant No.2 has been impleaded in the suit as per the orders of the trial Court in I.A.No.57 of 2012 dated 03.07.2012. The record 13 shows that the plaintiff did not assail the said orders before any higher authorities nor filed any appeal or cross objections in the present appeal in respect of the same. After impleading defendant No.2, the plaintiff did not seek any relief against defendant No.2, but continued the relief against defendant No.1 only. Since the plaintiff did not raise any objectins in respect of impleading defendant No.2 in the suit, she cannot now raise any objection during arguments that plaintiff is dominus litis in her suit and the defendant No.2 cannot make any appeal against the decree in the suit.
16. Admittedly, plaintiff filed a Civil Revision Petition No.3245 of 2012 before this Court but this Court confirmed the order of the trialCourt in I.A.No.57 of 2012 as such defendant No.2 was impleaded as party but the trial Court without going through the record properly observed that plaintiff has not raised any objection against the orders of the trial Court in I.A.No.57 of 2012 and it is proper. Admittedly, defendant No.2 is a third party to the proceedings. Plaintiff filed suit against Municipal Commissioner, but defendant No.2 got impleaded with the sole object to get demolish the 1st and 2nd floors of the plaintiff.
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17. It was clearly stated by the plaintiff that she constructed 1st and 2nd floors as per the permission granted by the Municipality but the deviation is only regarding the balconies on the 1st and 2nd floors. The said deviations were made against the permission as such she filed an application for regularization of the same but the Municipal Commissioner stated that it is not filed within the permissible time and it was rejected.
18. The main allegation of defendant No.2 is that plaintiff tresspassed into the passage leading to the "Nalla Pochamma"
temple and thus causing inconvenience to the devoteees attending to the temple. But the ground floor, 1st and 2nd floors were constructed by the plaintiff according to the sanctioned plain and permission accorded by the Municipality.
19. D.Ws.1 and 2 were examined in chief but not cross examined for the reason that they were transferred as such D.W.3/Municipal Commissioner was examined on behalf of the defendants.
20. He further stated that in June, 2008 sanction plan was granted to 1st and 2nd floors, plaintiff deviated the sanction 15 plan and constructed balconies that which projected outside the building which is not included in the sanctioned plan. The Municipality received number of complaints from local residents with regard to deviations in the constructins in the month of February, 2009. As such, they issued notice under Ex.A.8. The plaintiff submitted a reply on 21.05.2009 i.e., under Ex.A.9 requesting to finalise the application under BRS submitted by her earlier for regularization of deviations, which was kept pending since writ petition was pending in the High Court. Later on BRS application was rejected on 17.06.2009. He further stated that plaintiff has no right to deviate from the sanctioned plan and make construction and liable to remove the balconies otherwise Municipality has got right to remove the same and collect the expenses. But in the cross examination he stated that he never visited the suit schedule property, he is aware of the documents and proceedings filed before Upa Lokayukta. He further stated that two permissions issued by their office in respect of the suit property. It is true that first permission was issued in the year 1993 for construction of shops in ground floor. Second permission was issued in the year 2008 for construction of 1st and 2nd floor over existing shops in the ground floor. "As per 16 Ex.A.5 plan the balcony's are also shown in the plan in the 1st and 2nd floor." As per the measurements and sketch plan, balcony's are not shown. The portions of the balcony's are not scratched by their office while according the permission.
21. It was further stated that a notice was issued under Ex.A.10 by their office and in that there are no particular deviations mentioned. After getting sanctioned permission construction was made, there is a mention that without obtaining permission plaintiff is making construction and against the permission. He further admitted that after construction of property, Municipality assessed and assigned Municipal numbers and she is paying Municipal taxes. He further admitted that in the reply given to the complaint before Upa-Lokayuktha they submitted that there are no deviations in the ground floor except projections in the 1st and 2nd floor. He also stated that "balcony's in the 1st and 2nd floor are no way effecting the ingress and egress to the temple." He stated that there are buildings constructed in Medak town without permission but still they have not given any notice or dismantled them. It was suggested that he issued notice to the buildings that were constructed without 17 permission due to political influence he denied it. He further stated that they gave notice one year after completion of the construction.
22. In the cross-examination he stated while giving permission they saw the extent of land as per Ex.B.5 existing in ground floor 50 meters for which the permission was also granted. There are deviations as per Exs.A.4 and A.5. Additional construction is made in 1st and 2nd floor apart from ground floor. If any deviation is made it deems to cancellation of permission and violation of terms and conditions. As per his knowledge and record there are deviations in 1st and 2nd floor and also stated that he is not aware about the encroachment in the ground floor. It was further stated that defendant No.2 lodged a complaint before Collector and Municipal Commissioner. He also stated that permission is not mandatory for assessment. He further admitted that there is no deemed cancellation under Exs.A.4 and A.5.
23. Admittedly, the deviation of the plaintiff is only regarding construction of balcony's in the 1st and 2nd floor. Commissioner in his evidence clearly stated that the said deviation is nowhere effecting the ingress and egress to the temple. He clearly confirmed that as per his knowledge on 18 record, deviation is only in 1st and 2nd floors and he is not aware about the encroachment in the ground floor. Plaintiff purchased the mulgies in the year 1997 and also purchased appurtenant land in the year 2004 and after obtaining permission for construction of 1st and 2nd floors on 12.06.2008, completed the construction and also stated that the officials of defendant No.1 visited the site during the construction but not raised any objection.
24. Plaintiff clearly stated that the balcony's were constructed as per vasthu and also filed application for regularization of the same but defendant No.2 contended that there was violation in the ground floor and there is an encroachment to an extent of 3 feet into the temple passage without any basis and he gave an applicatin to the Lok Ayukta and Upa-Lok Ayukta and got adjourned the matter for submitting the survey report and survey report was filed on 19.01.2010 but he objected the same and called for the fresh report. Though defendant No.2 stated that he is one of the president of "Nalla Pochamma" temple and he has not filed any record to substantiate his version and he further stated that plaintiff purchased upon land to an extent of 60 square yards from the father of defendant No.2 through GPA holder 19 L.Linga Reddy in the year 1993 itself and it clearly shows that family of defendant No.2 sold the appurtenant land to the plaintiff vide registered sale deed. Defendant No.2 should have raised objection at the time of sale of property but he kept quite and the suit filed was decreed by the trial Court in favour of plaintiff. Defendant No.1 has not preferred any appeal but defendant No.2 preferred appeal though he has no locus standi. The first Appellate Court wrongly observed that the impleadment of defendant No.2 was not objected by the plaintiff but it was clarified in the above paragraph. Admittedly, defendant No.2 is third party and he is noway concerned with the suit schedule property but he got impleaded into suit and made his submission. Defendant No.2 has no locus standi to file appeal as he is not a proper and necessary party to the suit. The trial Court even after considering the same granted decree in favour of plaintiff even then he preferred the appeal without any locus standi. But the first Appelate Court without appreciating the facts properly reversed the judgment of the trial Court. Therefore, this Court finds that the judgment of the first Appellate Court and is liable to be set aside by confirming the judgment of the trial Court.
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25. In the result, second appeal is allowed by setting aside the judgment of the first Appellate Court dated 21.06.2023 in A.S.No.5 of 2019 on the file of Principal District Judge at Medak and confirming the judgment of the trial Court dated 20.04.2018 in O.S.No.48 of 2009 on the file of Senior Civil Judge, at Medak. It is for the defendant No.1 to consider the regularization of the same in due course of time. There shall be no order as to costs.
Pending miscellaneous applications, if any, shall stand closed.
____________________ P.SREE SUDHA, J Date: 03.06.2024 Bw