Smt. C. Padma vs L. Ram Reddy
2024 Latest Caselaw 1949 Tel

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

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,

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,

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

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

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

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

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

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

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,

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?

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

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.

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

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

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

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

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

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.

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