S.Mounika, vs The Municipal Corporation, ...
2022 Latest Caselaw 6592 Tel

     HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

       SECOND APPEAL Nos.759 of 2013 and 340 of 2014

COMMON JUDGMENT :

        Second Appeal No.759 of 2013 is arising out of the

judgment and decree in A.S.No.38 of 2012, dated 17.12.2012 on

the file of Principal District Judge, Warangal, which is arising out

of O.S.No.456 of 2008 on the file of V Additional Junior Civil

Judge, Warangal.


2.      Second Appeal No.340 of 2014 is arising out of the

judgment and decree in A.S.No.46 of 2011, dated 17.12.2012 on

the file of Principal District Judge, Warangal, which is arising out

of O.S.No.456 of 2008 on the file of V Additional Junior Civil

Judge, Warangal.


3.      The plaintiffs are different in both the suits, but the

defendants are one and the same.       The suits are filed by the

plaintiffs against defendant Nos.1 and 2 for grant of mandatory

injunction directing the defendants to delete the two suit plots

admeasuring 300 square yards each in Sy.No.565/A of Waddepally
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                                                                    GAC, J
                                           S.A.Nos.759 of 2013 &340 of 2014



village of Hanamkonda Mandal, from D.P.No.8 of 1986 and also to

award costs of the suit.


4.    It is pertinent to note that the prayer in both the suits is also

one and the same, the extent of land is also one and the same,

gifted under the registered gift settlement deeds to the plaintiffs,

vide document Nos.4355 of 2000 and 4356 of 2000, dated

07.09.2000 respectively.


5.    The trial Court has decreed both the suits, in favour of

plaintiffs granting mandatory injunction against defendant Nos.1

and 2 to delete the suit schedule property from D.P.No.8 of 1986

within a period of two months from the date of judgment, failing

which, plaintiffs are entitled to have the same through the process

of the Court.


6.    Being aggrieved by the same, the Municipal Corporation of

Warangal i.e. the 2nd respondent herein, has preferred two appeals

i.e. A.S.Nos.46 of 2011 and 38 of 2012 and both the appeals have

been allowed by separate judgments dated 17.12.2012, setting

aside the judgments and decrees of the trial Court.

GAC, J S.A.Nos.759 of 2013 &340 of 2014

7. As stated supra, the plaintiffs being aggrieved, have filed the

present two Second Appeals seeking to set aside the orders of the

first appellate Court in both the appeals.

8. It is pertinent to mention that likewise, some other plaintiffs

have also filed O.S.No.455 of 2008 on the file of V Additional

Junior Civil Judge, Warangal, against respondent Nos.1 and 2

herein, for deletion of the suit schedule property in Sy.No.565/A to

an extent of 195 square yards at Waddepally village of

Hanamkonda Mandal, from D.P.No.8 of 1986 and the trial Court

has decreed the said suit in favour of plaintiffs. Being aggrieved

by the said judgment and decree, the respondents herein i.e.

Municipal Corporation of Warangal as well as Kakatiya Urban

Development Authority (KUDA) have preferred two appeals and

the learned District Judge passed two separate judgments vide

A.S.Nos.49 of 2011 and 34 of 2012 on 17.12.2012, setting aside

the judgment and decree of the trial Court, against which, the

plaintiffs in O.S.No.455 of 2008 on the file of V Additional Junior

Civil Judge, Warangal, have preferred two Second Appeals i.e.

S.A.Nos.697 and 797 of 2013, which were allowed by this Court

GAC, J S.A.Nos.759 of 2013 &340 of 2014

by way of common judgment dated 27.10.2014, setting aside the

judgments and decrees of the first appellate Court and restoring the

judgments and decrees of the trial Court.

9. It is submitted by the learned counsel for the appellants that

both the present Second Appeals are covered to be allowed in

terms of the judgment of this Court, dated 27.10.2014, in

S.A.Nos.697 and 797 of 2013, and therefore, prayed to allow these

two appeals.

10. On the other hand, the learned Counsel for the Municipal

Corporation, Warangal as well as the Kakatiya Urban Development

Authority, contended that the first appellate Court has rightly

appreciated the evidence on record and reversed the judgment of

the trial Court, and therefore, prayed to dismiss these second

appeals.

11. It is the specific contention of the learned counsel for the

respondents that the trial Court cannot grant mandatory injunction

without the parties seeking declaration of title, and further, no

substantial question of law is involved in these Second Appeals so

GAC, J S.A.Nos.759 of 2013 &340 of 2014

as to interfere with the impugned judgments and decrees of the first

appellate Court and prayed to dismiss the Second Appeals.

12. On perusing the grounds of appeal, this Court formulates the

following substantial questions of law in these two appeals:

"1. Whether the first appellate Court is right in giving a finding that without seeking declaration of title, the suit for mandatory injunction simplicitor is not maintainable ?

2. Whether the findings recorded by the first appellate Court as to the title of the plaintiff and the legality of the development plan are contrary to the evidence on record and perverse ?"

13. On perusal of the judgment of this Court in S.A.Nos.697 and

797 of 2013, dated 27.10.2014, it is evident that the first appellate

Court has allowed all the first appeals on the same day i.e.

17.12.2012 setting aside the judgments of the trial Court in the

original suits. The relief sought for in all the original suits is one

and the same i.e. deletion of properties therein from D.P.No.8 of

1986, and the substantial questions of law involved in all these

second appeals is also one and the same.

GAC, J S.A.Nos.759 of 2013 &340 of 2014

14. It is contended by the learned counsel for the appellants in

both the appeals that being aggrieved by the common judgment

and decree in S.A.Nos.697 and 797 of 2013, a Special Leave

Petition vide SLP (Civil) Diary No.11306 of 2020, has been filed

by the Kakatiya Urban Development Authority before the Hon'ble

Supreme Court and on 01.02.2021, the Hon'ble Supreme Court has

dismissed the said SLP on the ground of delay. As the SLP itself is

dismissed, the common judgment of this Court in S.A.Nos.697 and

797 of 2013, has become final.

15. Since the connected Second Appeals i.e. S.A.Nos.697 and

797 of 2013 are allowed by way of common judgment dated

27.10.2014 by setting aside the judgments of the first appellate

Court and restoring the judgments and decrees of the trial Court,

and as the said judgment has become final in view of dismissal of

SLP by the Hon'ble Supreme Court, for the reasons recorded in the

said common judgment, the present Second Appeals are also liable

to be allowed.

GAC, J S.A.Nos.759 of 2013 &340 of 2014

16. Accordingly, S.A.Nos.759 of 2013 and 340 of 2014 are

allowed, setting aside the judgments and decrees dated 17.12.2012

in A.S.Nos.46 of 2011 and 38 of 2012 respectively on the file of

Principal District Judge, Warangal, as the Second Appeals are

covered by the common judgment of this Court vide order

dt.27.10.2013 in S.A.Nos.697 and 797 of 2013. Consequently, the

judgments and decrees in O.S.Nos.456 and 482 of 2008, dated

17.06.2011 on the file of V Additional Junior Civil Judge,

Warangal, are restored. No order as to costs.

Pending miscellaneous applications, if any, shall stand

closed.

________________________________ G.ANUPAMA CHAKRAVARTHY, J Date: 08.12.2022

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