Telangana High Court
Smt. Kudikala Devi vs Smt. Ankathi Laxmi on 4 April, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.277 of 2023
JUDGMENT:
The present Second Appeal is filed questioning the judgment
and decree, dated 10.02.2023, passed by the I Additional District
Judge, Hanumakonda, in AS.No.212 of 2022, whereunder and
whereby the judgment and decree dated 10.09.2013 passed by the
II Additional Junior Civil Judge, Warangal, in O.S.No.512 of 2010,
partly allowing the suit directing the defendants to remove the
unauthorized construction within three months from the date of
decree and declining to grant the relief of permanent injunction,
was confirmed.
2. The appellants are the defendants and the respondents are the
plaintiffs in the suit. For convenience, hereinafter the parties are
referred to as they are arrayed in the suit.
3. The brief facts of the case, which led to filing of the present
Second Appeal, are that one Ankathi Veerabhadraiah is husband of
plaintiff No.1 and father of plaintiff Nos.2 to 4. He purchased Plot
No.6, admeasuring 246.66 square yards in Sy.No.48(old),
corresponding new Sy.No.462 of Waddepally Village.
Hanamkonda Mandal, Warangal District from its owner and
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possessor by name Kolpaka Rama Kishna Paramananda Rao under
registered sale deed vide Document No.69/2002, dated 29.12.2001
for a sale consideration of Rs.1,23,500/-. Since the date of
purchase, the said Veerabhadraiah and plaintiff Nos.1 to 4 are in
continuous possession and enjoyment of the said Plot.
Accordingly, the said Veerabhadraiah has filed an application
before the Municipal Corporation, Warangal, for construction of
three portions residential building and the Commissioner,
Municipal Corporation, Warangal, has granted permission on
10.3.2006 vide proceedings No.499. Pursuant thereto, he
constructed three portions of the house and the same is assessed
and allotted H.No.1-9-1214/4 and house taxes are being regularly
paid. After the death of the said Veerabhadraiah on 31.07.2007, the
plaintiffs succeeded to the said house along with other properties.
3.1. It was further averred that defendant No.2, the husband of
defendant No.1, purchased plot No.5 towards southern side of plot
No.6 in the name of defendant No.1. After completion of
construction of the building, in the month of August, 2007 in the
absence of the plaintiffs, the defendants extended portico and
constructed a compound wall by occupying a width of 6 inches
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with the length of 60 feet of the plaintiffs land towards Southern
side The plaintiffs demanded the defendants to remove the
compound wall and the pillars, but they failed to do so and
handover vacant possession to the plaintiffs.
3.2. It was further averred that the defendants started
construction of first and second floors without placing protective
measures such as keeping tarpaulin covers to avoid falling of the
construction material in the house premises of the plaintiffs and
the plaintiffs requested the defendants to take measures, but they
scolded the plaintiffs in filthy language and threatened with dire
consequences and further, defendant No.2 taking advantage of his
official position had illegally occupied part of plot No.6 towards
Southern side to an extent of 6 square yards and constructed
compound wall along with portico on the North-West corner of
compound wall. Hence, the suit praying the Court to direct the
defendants to remove the compound wall and portico raised by
them by covering the compound wall towards North-West comer
of the suit-schedule property and to hand over vacant possession of
suit schedule property and to grant injunction restraining the
defendants, their agents and workmen from making any structures
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by covering the compound wall of suit schedule property and also
to award costs of the suit
4. Defendant No.1 filed her written statement and the same has
been adopted by defendant No.2 inter alia denying the plaint
averments. It was stated that the allegations made in the plaint that
in the month of August, 2007, in the absence of the plaintiffs,
defendant No.1 extended the portico and constructed a compound
wall by occupying a width of 6 inches and length of 60 feet of plot
No.6 towards Southern side and when the plaintiffs demanded, the
defendants promised to remove the alleged encroachment, but
failed to remove the same, are all false.
4.1. It was further stated that they kept tarpaulin covers so as to
see that the construction material would not fall in the place of
plaintiffs. The plaintiffs got filed the present suit only to see that
the construction activity of the defendants is stopped. Hence,
prayed to dismiss the suit.
5. On the basis of the above said pleadings, the trial Court
framed the following issues for trial:-
"(1) Whether the plaintiff is entitled to have permanent
injunction as prayed for?
(2) To what relief?"
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6. Before the trial Court, on behalf of the plaintiffs, PWs.1 to 3
were examined and Exs.A1 to A24 were marked. On behalf of the
defendants, DW.1 was examined and Exs.B1 to B7 were marked.
7. The trial court after considering oral and documentary
adduced by both the parties and on hearing the contentions of
learned counsel for both the parties, partly allowed the suit vide its
judgment dated 10.09.2013, directing the defendants to remove the
unauthorized construction within three months from the date of
decree failing which the plaintiffs are at liberty to remove the same
under due process of law. The trial Court observed as under:-
"As per the averments of the plaint, an extent of 6 Sq.
yards was occupied by D.W.1 and she has constructed a
compound wall all along with the portico on the north-
west corner of that compound wall. Exs.B1 to B9 are the
photographs filed on behalf of D.W-1 and during the cross
examination of P.W.1, Ex.B1 was confronted to P.W.1.
Ex.B1 photograph shows about the existence of tarpaulin
cover on the building which is under construction. P.Ws.1
to 3 herein deposed that those tarpaulin covers were
erected by the defendant after filing of the suit. Ex.A24 do
not shows the existence of tarpaulin cover. Ex.A24 filed
along with CD do not contain the existence of tarpaulin
cover on the building of D.W.1, as on the date of filing of
the suit. Thus, from the evidence of D.W.1, it is seen that
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her construction of portico is beyond the compound wall.
If really D.W.1 had raised pillars within her purchased
plot, then she would have constructed the compound wall
including that area and the pillars raised by her towards
north-west corner of her house clearly shows that they are
raised beyond the compound wall, which is said to have
been constructed by her. Ex A24 photograph clearly
shows that portico was constructed by D.W.1 beyond the
compound wall, which clearly shows the encroachment
made by D.W.1, into the land of P.W.1. As the said pillars
were constructed beyond the compound wall the burden
lies upon D.W.1 to prove that she had constructed the
compound wall and as well as raised pillars within her
purchased plot but not in the land of P.W.1. There is no
sufficient oral and documentary evidence on behalf of
D.W.1 to prove that her alleged construction of portico on
north-west corner is according to her construction plan
vide Ex.B10."
8. By observing thus, the trial Court ultimately held that the
plaintiff herein is entitled for recovery of possession and
mandatory injunction in respect of the suit schedule.
9. On appeal, the first Appellate Court, being the final fact-
finding Court, on re-appreciation of the entire evidence and the
material available on record, confirmed the judgment of the trial
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court, vide its judgment dated 10.02.2023. The first appellate Court
observed as hereunder:-
"In order to prove the encroachment, PWs 1 to 3 were
examined and mainly depend upon the photograph i.e.
Ex-A24. PWs 1 to 3 deposed as per the pleadings i.e.
about encroachment of 6 inches width at a length of 60
feet. Ex-A24-photograph clearly shows that the pillar
was constructed into the compound wall and the portico
was constructed basing on the pillar along with two other
pillars and it also reveals that the pillar was raised
beyond the compound wall which is in existing between
the house of the plaintiff and defendant No.1."
10. The first Appellate Court further observed that the
compound wall was constructed five years prior to the construction
of the house of the plaintiffs. As seen from the photographs, it was
clear that the pillar portion to some extent length was plastering
and the recent construction of first floor can also be seen from the
photographs. DW1 admitted in her cross-examination that
Ex-B10-building permission along with plan does not reveal about
the construction of portico on the North-West corner of her house.
Therefore, it was clear that the portico was constructed without
permission and more particularly, intervening to the joint
compound wall. The first Appellate Court accordingly held that the
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trial Court has thoroughly examined the material placed before the
Court and directed the defendants to remove the unauthorized
construction within three months from the date of decree and
dismissed the Appeal.
11. A perusal of the record discloses that both the trial Court as
well as the first Appellate Court held that the defendants have
constructed the portico without permission and more particularly,
the same is intervening to the joint compound wall of the
defendants and the plaintiffs and accordingly, directed the
defendants to remove the unauthorized construction, but, however,
the relief of permanent injunction was not granted. Hence, the
present Second Appeal.
12. Heard Sri K.Buchi Babu, learned counsel for the appellants
and Sri J.Venkateswara Reddy, learned counsel for the
respondents. Perused the entire material available on record.
13. Learned counsel for appellant contended that the trial
Court partly allowed the suit without proper appreciation of the
evidence and the first appellate Court also committed an error in
confirming the judgment and decree passed by the trial Court.
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14. Learned counsel for the appellant vehemently argued with
regard to non-payment of Court fee by the plaintiffs insofar as the
relief of mandatory injunction is concerned.
15. A perusal of the record would show that the suit is filed by
the plaintiffs seeking two reliefs, firstly, perpetual injunction and
secondly, mandatory injunction to the defendants to remove the
unauthorized constructions. From a reading of the decree, it is clear
that the suit is valued for the relief of injunction and the court fee
of Rs.411/- was paid under Section 26(c) of AP.Court Fees and
Suits Valuation Act. However, no court fee was paid by the
plaintiffs insofar as the relief of mandatory injunction is concerned.
16. The fact remains that the trial Court decreed the suit insofar
as mandatory injunction is concerned and declined to grant the
relief of permanent injunction.
17. A perusal of the written statement filed by the defendants
discloses that except making a vague statement that the court fee
paid is incorrect, no specific contention is raised regarding non-
payment of court fee in respect of one of the reliefs sought for by
the plaintiffs in the suit either before the trial Court or before the
first Appellate Court. Further, no issue has been framed either by
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the trial Court or the first Appellate Court regarding deficit court
fee. Therefore, in the considered opinion of this Court, the
defendants cannot be permitted to raise the said plea for the first
time in this Second Appeal.
18. The Hon'ble Apex Court in Manorahan v. Sivarajan &
Ors 1 at Para 7 held as under:-
"Section 149 of the Civil Procedure Code prescribes
a discretionary power which empowers the court to
allow a party to make up the deficiency of court fee
payable on plaint, appeals, applications, review of
judgment, etc. This section also empowers the court
to retrospectively validate insufficiency of stamp
duties, etc. It is also a usual practice that the court
provides an opportunity to the party to pay court fee
within a stipulated time on failure of which the court
dismisses the appeal."
19. Following the aforesaid judgment of the Hon'ble Apex
Court, this Court in its discretion is inclined to give an opportunity
to the plaintiffs to make good of the deficit court fee payable in
respect of the relief sought for by them in the suit, i.e., for the relief
of mandatory injunction.
1 (2014) 4 SCC 163
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20. Learned counsel for appellant failed to raise any substantial
question of law to be decided by this Court in this Second Appeal
apart from the contention regarding deficit court fee. In fact, all the
grounds raised in this appeal are factual in nature and do not
qualify as the substantial questions of law in terms of Section 100
C.P.C.
21. It is well settled principle by a catena of decisions of the
Apex Court that in the Second Appeal filed under Section 100
C.P.C., this Court cannot interfere with the concurrent findings on
facts arrived at by the Courts below, which are based on proper
appreciation of the oral and documentary evidence on record.
22. Further, in Gurdev Kaur v. Kaki 2, the Apex Court held that
the High Court sitting in Second Appeal cannot examine the
evidence once again as a third trial Court and the power under
Section 100 C.P.C. is very limited and it can be exercised only
where a substantial question of law is raised and fell for
consideration.
(2007) 1 Supreme Court Cases 546
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23. Having considered the entire material available on record
and the findings recorded by the trial Court as well as the first
Appellate Court, this Court finds no ground or reason warranting
interference with the said concurrent findings, under Section 100
C.P.C. Moreover, the grounds raised by the appellant are factual in
nature and no question of law much less a substantial question of
law arises for consideration in this Second Appeal.
24. Hence, the Second Appeal is accordingly dismissed at the
stage of admission. However, as discussed above, the
respondents/plaintiffs have not paid court fee in respect of relief of
mandatory injunction. Therefore, the respondents/plaintiffs are
directed to pay the deficit court fee to the satisfaction of the trial
Court in O.S.No.512 of 2010, as per the directions and within the
time granted by the trial Court.
25. Pending miscellaneous applications, if any, shall stand
closed. There shall be no order as to costs.
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JUSTICE LAXMI NARAYANA ALISHETTY
Date:04.04.2024
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