Mohd. Ahmed, Hyd vs Mohd. Usman, Hyd
2023 Latest Caselaw 1590 Tel

         THE HONOURABLE DR.JUSTICE G. RADHA RANI

                     SECOND APPEAL NO.779 OF 2017
JUDGMENT:

This Second Appeal is filed by the appellant who was the defendant

aggrieved by the judgment and decree passed by the X Additional Chief Judge

(FTC), City Civil Court, Hyderabad in A.S.No.224 of 2010 dated 13.06.2012

confirming the judgment and decree dated 29.09.2009 on the file of the IV

Additional Rent Controller cum XVI Junior Civil Judge, City Civil Court,

Hyderabad in O.S.No.321 of 2007.

2. The parties are herein after referred as arrayed before the trial court.

3. The plaintiff filed a suit against the defendant seeking mandatory injunction

directing the defendant to remove the construction made towards the western side

of the house bearing No.8-3-799/4 situated at Yellareddyguda, Khairtabad,

Hyderabad by leaving set-back and to remove the ventilators facing towards the

western side of the property and also perpetual injunction restraining the

defendant, his men and servants from opening entrance towards western side of the

property.

4. The plaintiff contended that he was the absolute owner and possessor of the

house bearing No.8-3-799/4 admeasuring 198 Sq. Yards situated at

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Yellareddyguda, Khairtabad, Hyderabad. In the year 1951, the father of the

plaintiff by name Mohd.Suleman purchased the suit schedule property and

transferred the same in the name of plaintiff's mother late Khawja Bee by virtue of

a sale deed document No.2404 of 1966 dated 30.09.1966. The mother of the

plaintiff obtained permission from Municipal Authorities vide permit No.48/10 in

file No.499/4/4/8/66 and constructed a house leaving 3" open land on the western

side of the suit house for her passage. There was a ventilator and a door existing

on the western side of the suit property. After the demise of plaintiff's mother, the

plaintiff was managing the suit property. The defendant's house was situated on

the western side of the suit property. In June, 2001, the defendant commenced

construction of a new house without leaving any set-back towards the western side

of the suit property. The plaintiff protested the same and lodged a complaint with

the Municipal Corporation of Hyderabad (for short "MCH") on 11.06.2001 but the

Municipal Authorities did not take any action. The defendant in furtherance of his

unauthorized act opened ventilators towards western side of the suit property

affecting the right of the privacy of the plaintiff. The defendant also constructed a

stair case and tried to open an entrance towards the western side of the suit

property, but due to the intervention of the local residents, the defendant stopped

the same. The defendant again on 04.01.2004 attempted to open an entrance

towards the western side of the property. Consequently, the plaintiff lodged a

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complaint with MCH on 05.01.2004 but the Municipal Authorities did not take any

action. Therefore, the plaintiff filed Writ Petition No.5099/2004 before the High

Court of Andhra Pradesh seeking direction to the Municipal Authorities to take

action against the defendant pursuant to the complaint dated 05.01.2004. The High

Court disposed the said writ petition on 09.04.2004 with an observation that the

plaintiff should approach the competent civil court seeking the relief. Hence, the

suit.

5. The defendant filed written statement stating that he was the owner and

possessor of property bearing No.8-3-799/2 situated at Yellareddyguda, Hyderabad

by virtue of registered sale deed document No.2901 of 1985 dated 07.11.1985.

There was a 3" width serigalli between the houses of the plaintiff and the

defendant. The plaintiff had encroached and grabbed the said serigalli and

constructed a wall and merged with his house property. The serigalli was a public

property. The defendant lodged a complaint on April, 2004 but the MCH did not

take any action. The locality people were facing severe problems due to the

closing of serigalli by the plaintiff and prayed to dismiss the suit.

6. Basing on the said pleadings, the trial court framed the following issues:

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i) Whether the plaintiff is entitled for the relief of declaration as prayed for?

ii) Whether the plaintiff is entitled for the relief of perpetual injunction as prayed for?

iii) To what relief?

7. The trial court on considering that the suit was not filed for declaration but

for mandatory injunction, re-framed the 1st issue as follows:

Whether the plaintiff is entitled for the relief of mandatory injunction as prayed for?

8. The plaintiff examined himself as PW.1 and got marked Exs.A1 to A7. The

defendant examined himself as DW.1 and got examined another witness as DW.2

and got marked Exs.B1 to B4.

9. On considering the oral and documentary evidence on record, the trial court

observing that the facts stated by PW.1 in his chief examination were not disputed

in his cross-examination by the defendant which would amount to admission of

those facts and DW1 admitted in his cross-examination that he had not obtained

permission from MCH Authorities at the time of the construction of house and that

he did not leave set-back at the time of construction and further admitted that in

Ex.B1, his sale deed, the neighbour's house was shown as eastern boundary to his

property, observed that the conduct of the defendant was blameful and that the

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plaintiff was entitled for the relief of mandatory injunction directing the defendant

to remove the construction made towards the western side of the suit property

without leaving the set-back. However, observing that as it was open to the

defendant to use his property in the manner permitted by law dismissed the relief

sought by the plaintiff to remove the ventilators facing towards the western side of

his property.

10. Aggrieved by the judgment and decree passed by the IV Additional Rent

Controller cum XVI Junior Civil Judge, City Civil Court, Hyderabad in partly

decreeing the suit granting mandatory injunction directing the defendant to remove

the construction made towards the western side of the suit property by leaving a

set-back, the defendant preferred an appeal.

11. The appeal was heard by the X Additional Chief Judge (FTC), City Civil

Court, Hyderabad. The same was numbered as A.S.No.224 of 2010 and vide its

judgment dated 13.06.2012, the learned X Additional Chief Judge dismissed the

appeal confirming the decree and judgment of the trial court.

12. Aggrieved further, the defendant preferred this appeal contending that the

following substantial questions of law would arise:

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a) Whether the judgment and decree passed by the courts below were perverse as the same was contrary to the registered sale deed of the respondent - plaintiff wherein a 3" seri was shown under Exs.A1 and A3?

b) Whether the courts below were justified in giving a decision without giving a finding as to who occupied the 3" seri between the appellant and the respondent?

c) Whether the judgment and decree of the courts below were not perverse in nature?

d) Whether the courts below having rejected the prayer for perpetual injunction would have decreed the suit for perpetual injunction?

e) Whether the judgment and decrees of the courts below were vague in nature?

13. Heard the learned counsel for the appellant on the above substantial

questions of law,

14. The second appeal would be entertained only if the High Court is satisfied

that the case involves substantial question of law. Sub-Section 3 of Section 100 of

the Code of Civil Procedure, makes it obligatory on the appellant to precisely state

in the memo of appeal, the substantial question of law involved in the appeal. Sub-

Section 4 provides that where the High Court is satisfied that any substantial

question of law is involved in the case, it shall formulate that question. In other

words, once the High Court is satisfied after hearing the appellant or his counsel,

as the case may be, that the appeal involves a substantial question of law, it has to

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formulate that question and then direct issuance of notice to the respondent on the

memo of appeal along with the question of law framed by the High Court.

15. The word substantial, qualifying "question of law" would mean of having

substance, essential, real, of sound worth, important or considerable. It is to be

understood as something in contra distinction with technical, of no substance or

consequence, or academic merely. The question of law having a material bearing

on the decision of the case, which was not covered by any specific provisions of

law or settled legal principle emerging from binding precedents, and involves a

debatable legal issue is considered as a substantial question of law. As per the

judgments of the Hon'ble Apex Court in several cases, where the legal position is

clear, either on account of express provisions of law or binding precedents, but the

court below had decided the matter, either ignoring or acting contrary to such legal

principle also, the substantial question of law would arise not because the law was

still debatable, but because the decision rendered on a material question, violates

the settled principles of law.

16. The present suit is filed by the respondent - plaintiff seeking mandatory

injunction to remove the constructions made by the defendant as well as to remove

the ventilators facing towards the western side of the property without leaving set-

back towards the western side of his house and also perpetual injunction

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restraining the defendant from opening entrance towards the western side of the

property. The suit was partly decreed granting mandatory injunction to remove the

construction made towards the western side of his property, but was dismissed for

the relief sought for perpetual injunction from opening ventilators towards the

western side of the property. The substantial question of law contended by the

appellant - defendant was that, the courts below failed to consider the documents

marked under Exs.A1 and A3 which would show that the plaintiff occupied 3" seri

existing between the plaintiff and the defendant. No counter claim was filed by the

defendant seeking any relief from the court. In the absence of any counter claim

filed by the defendant, the court is bound to answer only whether the plaintiff is

entitled to the reliefs as claimed by him, but not to the questions raised by the

defendant in his written statement without paying any court fee.

17. Thus, this Court does not find any illegality in the judgments of the courts

below for not answering the defence taken by the defendant on the aspect that the

plaintiff occupied the 3" seri between them.

18. The plaintiff in his plaint itself stated that his mother obtained permission

from the Municipal Authorities and constructed a house leaving 3" open land on

the western side of the suit house for her passage. No evidence was adduced by

the defendant disputing the same.

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19. The other contention raised by the appellant - defendant was that the trial

court had not discussed the evidence of the witnesses and documents and the lower

appellate court also failed to discuss the evidence of PW.1, except the evidence of

DWs.1 and 2 and ignored the vital aspects and they ought not to have granted the

relief of mandatory injunction, when the relief for perpetual injunction was

dismissed. But on perusal of the judgments of the courts below, the trial court as

well as the lower appellate court discussed the evidence of the witnesses and on

observing the admissions made by the witnesses in their cross-examination as well

as the facts which were stated in the chief-examination of PW.1 which were not

disputed in the cross-examination by the defendant, came to the conclusion about

the conduct of the defendant being blameful and directed him for leaving the set-

back granting the mandatory injunction to remove the construction made by him

towards the western side of the suit property.

20. The lower appellate court also discussed the evidence of the witnesses as

well as the documents and observed that the plaintiff obtained Ex.A3 plan for

constructing his house in the year 1966 whereas the defendant in violation of

building rules, proceeded with construction of the house and contended that as the

house was in a slum area, he thought it unnecessary to obtain plan, would not hold

water, and the same was un-sustainable under law. Both the courts below also

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discussed the documentary evidence marked under Ex.B1 plan filed by the

defendant which was disclosing that there was neighbour's property on all four

(04) sides but no seri as a boundary to it on one side as contended by the

defendant, partly decreed the suit in favour of the plaintiff. As the relief for

mandatory injunction is not dependant on the relief for perpetual injunction sought

for by the plaintiff, this Court does not find any illegality in rejecting the prayer for

perpetual injunction though decreeing the suit for mandatory injunction.

21. As per the reliefs claimed by the plaintiff, he sought mandatory injunction to

remove the construction made by the defendant towards the western side of his

house without leaving set-back and to remove the ventilators facing towards the

western side and sought perpetual injunction restraining the defendant from

opening the entrance towards western side of his property. As such, both the

reliefs claimed are independent and one is not connected to the other. The court

even though dismissed the relief for perpetual injunction, decreeing the suit for

mandatory injunction is maintainable. Hence, this Court does not find any

illegality in the judgments of the courts below and any substantial question of law

would arise as contended by the defendant in this appeal.

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22. As such, the Second Appeal is dismissed at the stage of admission as this

Court does not find any substantial questions of law arising from out of the

judgments of the courts below.

23. In the result, the Second Appeal is dismissed at the stage of admission.

No order as to costs.

As a sequel, miscellaneous applications pending in this appeal, if any, shall

stand closed.

_____________________ Dr. G. RADHA RANI, J 12th April, 2022 Nsk.