Telangana High Court

Dr.Tgk Mahadev vs Amitesh Jeet Sing on 24 November, 2025

                                    1


     THE HON'BLE SRI JUSTICE NARSING RAO NANDIKONDA

                          C.C.C.A.No.23 of 2020
JUDGMENT:

This Appeal is filed by the appellant/defendant under Section 96

of CPC against the Judgement and Decree, dated 28.12.2018 passed

in OS No.170 of 2011 on the file of the XXVII Additional Chief Judge,

City Civil Court, Secunderabad. The plaintiff/appellant herein, earlier

filed a suit for perpetual and mandatory injunction and claiming

damages for an amount of Rs.10,00,000/- with future interest and

costs against the defendant.

2. For the sake of convenience, the parties will be hereinafter

referred to as they are arrayed before the learned trial Court.

3. Brief facts of the case are that the appellant/plaintiff herein had

earlier filed the suit, vide OS No.170 of 2011 against the defendant

No.1 seeking a mandatory injunction directing the defendant No.1 to

remove the room in front of the dwelling unit which was encroached

upon the open place and to remove the extension of roof on the sides

of the dwelling unit on the ground floor, which was constructed in

front of his house and further to direct the defendants more

particularly defendant No.3 to remove the illegal construction in case

the said illegal construction made by defendant No.1 failed to removed

from the dwelling unit.

NNR,J

4. The plaintiff/appellant contended that he is the absolute owner

and possessor of the dwelling unit bearing Flat No.184, First Floor,

Type IV, Sector-A of survey No.157/1 of Thokatta Village,

Secunderabad Cantonment and in Sy No.56/2 of Kakaguda Village,

Secunderabad Cantonment. Originally the dwelling unit was

constructed by Army welfare organization, New Delhi, which is the

parent body of the Defendant No.2- Society (Army Welfare Cooperative

Housing Society), for the welfare of the armed persons. The said unit

was originally purchased by the Wing Commander T.S.Madhadev, who

is the brother of the plaintiff under the housing scheme in the year

1996, thereafter, a regular Gift Settlement Deed was executed in

favour of the plaintiff, dated 05.05.2008.

5. Learned counsel for the appellant contended that the dwelling

units were constructed over common walls and roof leaving behind

open space for air, light and ventilation In the rules framed by the

Defendant No.2- Society, no member shall make any alternation to the

existing structure occupied over the ground floor without permission

and issuance of NOC from the Defendant No.2- Society and the first

floor occupants, if any new construction is carried out, the member

has to obtain permission from the Defendant No.3- (Secunderabad

Cantonment Board).

NNR,J

6. The plaintiff and his wife are doctors and working in U.K.,

presently plaintiff's brother who is GPA holder is staying in the

dwelling unit. The defendant No.1 taking advantage of the absence of

the plaintiff has encroached upon the open space in front of the

dwelling unit and constructed a room and also extended the roof area

of all the room all around Defendant No.1 dwelling unit. Further,

when the plaintiff's brother visited the dwelling unit in the May, 2011,

he came to know about the changes made in the dwelling unit. On

information given by the plaintiff brother, Defendant No.2- Society

inspected the unauthorized construction and inquired about the

same.

7. Due to the illegal construction made by defendant No.1, the

plaintiff made a complaint to Defendant No.2- Society about the

violation of the rights of the plaintiff, such as, right to privacy, air,

light and ventilation and also there is every thread of security, since

the illegal construction of room was made, it would be easy to climb

up and enter the dwelling units and the construction made by

Defendant No.1 are in utter violation of rules and regulations of the

Defendant No.2- Society without approval of Defendant No.3.

8. Learned counsel for the plaintiff/appellant further contended

that inspite of the complaint given by the plaintiff to Defendant No.2-

NNR,J

Society and Defendant No.3- Cantonment Board, they were not

responding to the illegal construction, as such, the plaintiff filed the

suit for mandatory injunction.

9. The defendant No.1 filed a written statement denying the

averments made in the plaint and contended that, the suit dwelling

unit is on the 1st floor above the dwelling unit of Defendant No.1. All

the occupants have modified the dwelling units and the Defendant

No.1 was forced to modify the requirement to overcome the 'vastu

dosham' and that the construction made by the Defendant No.1 are

negligible and does not deprive any easementary rights of the free flow

of air, light, visibility, etc., of the plaintiff, as such, neither Defendant

No.2 nor Defendant No.3 objected for the same and further contended

that 95% of the dwelling units have modified their unit.

10. Defendant No.1 further contended that he has already deposited

Rs.7,500/- towards a security deposit to carry out repairs including

additions and alterations and it amounts to permission. Defendant

No.1 took oral permission from the occupants of the dwelling Nos.1

and 4. i.e., First Floor and GPA holder of the plaintiff and it is also

informed to GPA holder of the plaintiff over the telephone. It is further

contended that the plaintiff has filed the suit with all false allegations.

NNR,J

11. Defendant No.1 further contended that the trial Court has no

jurisdiction to adjudicate the said matter because the plaintiff and

defendant No.1 are members of the Defendant No.2-Society, and as

per the bye laws of Defendant No.2-Society, in case of any dispute

among the members, the same has to be referred to the Registrar of

Societies.

12. The Defendant No.3 also filed written statements and contended

that due to the construction made, the serenity and design and

uniformity of the layout is effected thereby causing discomfort to the

neighbours. The plaintiff had earlier given representation, which was

marked to Defendant No.3. Before contemplating action on the

construction raised by the Defendant No.1 by referring the matter to

the Defendant No.3, the plaintiff approached the Court and filed the

present suit.

13. Basing on the pleadings of both the parties, the learned judge

has framed the following issues for consideration:

"Whether the constructions or extensions made by the 1st defendant encroached the area of the plaintiff?

2. Whether the construction made by the 1st defendant on the alleged reasons of vasthu is legal?

3. Whether the extensions made by the 1st defendant without any sanction plan or approval is sustainable in law.

4. Whether the plaintiff is entitled for mandatory injunction sought for?

NNR,J

5. To what relief?

The following additional issues are also settled:-

1. Whether this Court has no territorial jurisdiction to try the suit?

2. Whether the dispute between the plaintiff and defendant No.1 is hit by the provisions of Cooperative Societies Act relief?"

14. During the course of the enquiry, to prove the case of the

plaintiffs, the plaintiffs have got examined PWs.1 to 3, and marked

Ex.A1 to A10. On behalf of defendants DW.1 to DW.3 were examined.

and Exs.B1 to B9 were marked.

15. After considering the entire evidence and after going into the

merits of the case, the learned trial Court dismissed the suit on the

ground of lack of jurisdiction. Aggrieved by the same, the present

appeal is filed by the plaintiff.

16. Heard, Sri Rahul Kandharkar, learned counsel for the

appellant and Sri Zeeshan Adnan Mahmood, learned counsel for the

respondent/defendant No.1. Sri K.R.Koteswera Rao, learned

Standing Counsel for Cantonment appearing for defendant No.3. None

appear for respondent No.2. Perused the material on record.

17. The present appeal is preferred by the appellant/plaintiff on the

following grounds that the trial Court erred in observing that under

Section 126 of the Cooperative Societies Act, 1964, the civil Court has

NNR,J

had no jurisdiction, as the present suit is not touching the business

and affairs of the society as mandated under Cooperative Societies

laws, but in fact, the dispute is circumscribed by a larger law-of-the

land namely the Cantonment Act and Rules, which is a Central

Enactment.

18. Learned counsel for the appellant/plaintiff argued that the

learned trial Court did not observe that the very office bearer of

Society, who was examined as DW.3 admitted in his cross

examination has stated that Defendant No.1 has extended the

construction on the open area in between the garages on the ground

floor and the construction was made without any prior permission

from defendant No.3 and further contended that they are 'Statutory

Authority' i.e., The Cantonment Board intends to take action by

following due process of law, but strangely the suit is dismissed

simply saying that the Civil Court has no jurisdiction to pass

judgement and simply thrown away the matter in the lap of Co-

operative Registrar who in fact has no Authority to grant specific

reliefs, injunctions etc., which was the crux of the plaintiff.

19. Learned counsel for the appellant averred that the trial Court

ought to have allowed the plea of jurisdiction only at the threshold, or

prior to framing the suits but after adducing evidence which is

NNR,J

contrary to Section 21 of CPC and the trial Court ought to have seen

that the issue of jurisdiction should have resolved well before framing

the issues by staying the suit under provisions of Schedule 1 order

XIV (2)(2) of CPC.

20. The trial Court failed to observe that the dispute did not fall

within the meaning of the business, management and the constitution

of the Society which was mandatory for any arbitration under Section

61 of TS Co-operative Act, 1964, since the dispute fell within the ambit

of Cantonment Laws and Rules and prayed this Court to set aside the

judgment and decree passed by the trial Court and allow the present

appeal.

21. Learned counsel for the defendant No.1 submits that after

considering the entire evidence available on record, the learned trial

Court has rightly dismissed the suit, which needs no interference.

22. The points which arose for consideration before this Court in

this appeal are that:

"1) In view of the Section 61 and 62 of Telangana cooperative Societies Act, whether the Civil Court has got any jurisdiction to try the present the suit and whether it is hit by the provisions of the Cooperative Societies Act.

2) If so, whether the plaint is entitled for mandatory injunction as prayed for and for damages as prayed for.

3) Whether this appellant/plaintiff is entitled for any relief ?

NNR,J

4) If so, to what relief?"

Point No.1

23. Having heard the learned counsel for the appellant/plaintiff and

learned counsel for the defendant Nos.1 and 3, the main grievance of

the plaintiff before this Court is that the learned trial Court dismissed

the suit on the ground that as per Section 61 of the A.P.Cooperatives

Society Act, 1964, if there is any dispute, touching the management or

business of the society among the members, such dispute shall be

referred only to Registrar of the Cooperative society for decision and

the jurisdiction of the civil Court is ousted. It is averred by appellant

counsel that learned trial Court failed to perceive the documentary

evidence placed by the plaintiff, vide Ex.A1 to Ex.A10 and contended

that the said litigation is not touching the management or business of

the Army Welfare Co-operative Housing Society.

24. Further contentions of the appellant/plaintiff are that trial Court

failed to observe that very constructions made by the defendant No.1

are unauthorized construction and totally against bye-laws of the

Society and Cantonment Board Rules and to cover up the said illegal

constructions, the issue of "Vastu dosham" is being brought to the

forefront and the trial Court without considering the case of the

appellant/plaintiff has dismissed the suit on the ground of jurisdiction

NNR,J

and by observing that the civil Court has no jurisdiction to adjudicate

the present matter and also held that the Cooperative Registrar is only

the competent authority to deal with the present litigation and also he

relied on the judgments passed by erstwhile High Court of Andhra

Pradesh at Hyderabad in M.Venkatarama v. A.P.Co-operative

Tribunal, Hyderabad 1 and Yempalakula Vijaya Lakshmi v.

Cuddapah District NGO's Co-op. Building Society Limited,

Kadapa Distrct & others 2.

25. Per contra, learned counsel for the respondent No.1 has

contended that no judgment can override the statutory provision of Act

unless and until the said Act has been declared as void by the

constitution Court. As the present dispute involved among the

members of the Society and strictly reading the wordings of the Section

62(2) extended version of Section 61 of the A.P.Cooperatives Societies

Act, 1964 which reads as under:

"62. (1) The Registrar may, on receipt of the reference of a dispute under section 61- (a) elect to decide the dispute himself; or (b) transfer it for disposal to any person who has been invested by the Government with powers in that behalf; or (c) refer it for disposal to an arbitrator.

(2) Where the reference relates to any dispute involving immovable property, the Registrar or such person or arbitrator, may

2010 SCC Online AP 313

2010 (6) ALD 504

NNR,J

order that any person be joined as a party who has acquired any interest in such property subsequent to the acquisition of interest therein by a party to the reference and any decision that may be passed on the reference by the Registrar, or the person or the arbitrator aforesaid, shall be binding on the party so joined as if he were an original party to the reference."

26. Learned counsel for the respondent No.1 has relied on the

judgment of Sukuzi Parasrampuria Suiting Private Limited v.

Official Liquidator of Mahendra Petrochemicals Limited 3 and

argued that the plaintiff shall independently establish its own case and

cannot depend upon the weakness of the defendants' case .

27. Learned counsel for the respondent No.1 further contended that

as the plaintiff was never examined nor did he entered into the witness

box as he is not entitled for the said relief and further contended that

the judgment cited by the learned counsel for the appellant does not

support the case of the appellant.

28. Learned counsel for the responded No.3 - The Secunderabad

Cantonment Board, has contended that, on 31.05.2011 the plaintiff

addressed a complaint against defendant No.1 to the General

Secretary, Army Welfare Co-operative Housing Society, and the said

letter copy is marked to respondent No.3. Subsequently, the

respondent No.3 issued a preliminary notice for unauthorized

(2018) 10 SCC 707

NNR,J

construction made on Flat No.183, questioning the unauthorized

construction in the form of alteration of the existing structure to the

flat contended that they are against to by-law and in violation to

Section 235 of the Act, by specifying the details of the deviations and

alterations, which are mentioned below:

1. Drawing / Hall Extension : 13'6" X 13'-6

2. Kitchen Extension : 7'6" X 7'-10

3. Bed Rooms Extension : 6'9" X 34'-0

4. Toilet : 5'0" X 7'-6

5. Living / Dining Extension : 7'-0 x 10'-10

29. Pending notice issued by the respondent No.3, the complainant

i.e., plaintiff preferred the suit prematurely, without giving time to the

Cantonment Board to take action on the said issued notice, dated

04.06.2011 and the matter was taken to the Civil Court for

adjudication, hence the Cantonment Board was handicap to take

further action on the alleged illegal construction.

30. On perusal of the entire pleading and material placed before this

Court, the entire issue which revolves around, whether the issue

placed before the trial Court would come within the Society of

Business or not?.

31. Admittedly, the issue before the Court is in respect to

construction that has been made in front of the plaintiff's house.

Defendant No.1 claiming that the said land belongs to him and he has

NNR,J

paid the charges for the same. The grievance of the plaintiff is that the

defendant is not entitled to make any such construction as it effect his

fundamental rights i.e., air, ventilation, light and other easementary

rights. No doubt the entire record shows that defendant No.1 made

construction and altered his dwelling unit and the defendant No.1 has

also not denied the construction and alteration made to the dwelling

unit by citing "Vaasta Dosham" as a reason for alteration.

32. As per the plaintiff contention, the defendant No.1 has occupied

the open space left by Army Welfare Cooperative Housing Society for

common use of the dwelling unit owners, however defendant No.1

made illegal construction thereby the plaintiff's and other

neighbouring dwelling unit effected the fundamental rights i.e.,

privacy, air, light ventilation is being greatly jeopardy, moreover

defendant No.1 has no right or title or any legal authority to make

such construction as there are about 400 dwelling units which kept

the open space vacant and that all the units are free from flow of air

light and ventilation and the said extension were made contrary to the

approved plan issued by Army Welfare Cooperative Housing Society.

33. It is also admitted by the DW.1 that all the portions are newly

constructed portions and there is no mention in their bye-laws to

change or alter the dwelling units without prior permission from the

NNR,J

competent authority and further submitted that DW1 has gave an

affidavit to respondent No.2-Society that he will not make new

construction in open area, notwithstanding such affidavit, DW1 made

a room in an open area.

34. Coming to the evidence of DW.2 (General Secretary of Army

Welfare Cooperative Housing Society Limited) has specifically admitted

in the cross examination that defendant No.1 modified the structure to

suit their requirements without any sanction and permission from

Cantonment Board and further deposed that the ground floor unit was

allotted excess land in and around the building by collecting excess

cost and the same was mentioned in registered conveyance deed and

the first floor unit (plaintiff) shall not be entitled to have any right of

whatsoever nature in respect of excess land allotted to the ground floor

unit holders.

35. On perusal of the entire material on records and the evidences

placed by both the parties and taking into the consideration the

arguments raised by learned counsel, this Court is of the opinion that

the core dispute is in relation to removal of room in front of dwelling

unit at ground floor constructed by defendant No.1. and any

construction or alteration or demolition of the dwelling units in the

Society is the one which obviously would come within the definition

NNR,J

under by law of the Society and Section 61 and 126 of the Cooperative

Societies Act, 1964, as the said dispute which arose among the

members are in relation to the construction on the lands which are

allotted by the Army Welfare Co-operative Housing Society which was

maintained by the Secunderabad Cantonment Board, the said dispute

obviously has to be dealt by the Registrar of the Cooperative society as

per section 61 of the AP Cooperative Act, 1964.

36. Accordingly, this Court feels that the trial Court did not

committed any error in referring the dispute to the Registrar of

Societies for decision as per the Sections 61 and 126 of the

A.P.Cooperatives Societies Act, 1964. Hence Point No.1 is answered in

favour of respondents herein.

37. As far as issue No.3 is concerned, the evidence of PW.1 and DW.1

and DW.2 and DW.3 as discussed above, it clearly established that

there are construction made by the defendant No.1 in the suit

schedule property and admittedly no such permission for such

construction was taken by the defendant No.1 for making such

construction from the Cantonment Board i.e., Defendant No.3 and per

se, the said construction was said to be illegal and unauthorized,

though the said dispute is between the plaintiff and defendant No.1 as

NNR,J

inter se between members would be treated as a dispute between the

members of the society, but in respect of the illegal construction which

are made as the aggrieved party is not only the plaintiff but also the

Secunderabad Cantonment Board i..e, Defendant No.3 who is the

appropriate authority for granting sanction for constructions of any

nature and also who has to regulate and initiate appropriate action in

respect of the constructions which are made against to the bye-laws of

the Cantonment Board which per se being illegal and the defendant

No.3 is competent authority to take appropriate action against the said

construction.

38. As such, this Court, having considered the evidence placed by

both the parties and the construction being made without any

permission, the point Nos.2 & 3 are answered in favour of the

appellant/plaintiff and against the defendant No.1/respondent No.1

herein.

Point No.4

39. Admittedly, the contention of the defendant No.3 is that the

construction made are unauthorized and illegal and they are ready to

take action against the same and due to filing of the suit and

simultaneously the present appeal as they could not take any action

against the illegal construction. Therefore, the legality or illegality has

NNR,J

to be looked into by the Cantonment Board and it is the Cantonment

Board which is bound to take action. Hence, the contention raised by

the defendant No.1 in respect of dispute as to the entitlement of land

and that the defendant No.1 is entitled to make construction over the

same would be a dispute between the members of the society, but even

if there being no dispute, no person would is entitled to make

construction without permission of the competent sanctioning

authority i.e., Secunderabad Cantonment Board. In the present case,

as admitted by defendant Nos.1, 2 and 3 i.e., DW.1 to DW.3 deposed

before the trial Court, it is clear that defendant No.1 has not obtained

any permission from the competent authority to alter or modify the

dwelling unit.

40. In view of the above observation made by this Court, this Court

deem it appropriate to partly allow the present appeal, directing the

defendant No.1 to remove the illegal construction within one month

from the receipt of the copy of this order failing which the defendant

No.3 is at liberty to initiate appropriate action as provided under law.

41. Further, the plaintiff is at liberty to make an appropriate fresh

application before the Registrar of the Cooperative Societies as

provided under the provisions of the Cooperative Societies Act against

the inter se dispute between the plaintiff and the defendant No.1 and

NNR,J

on such application being made, the concerned authorities enquire

into the matter as per the provisions of the Cooperatives of Societies

Act, 1964 and shall pass appropriate orders by giving notice to both

the parties including defendant No.2 and shall pass appropriate order

within three months from the date of the receipt of the application as

per law.

Miscellaneous petitions, if any are pending, shall stand closed.

_________________________________ NARSING RAO NANDIKONDA, J 24.11.2025 SHA

Issue CC in two days.