Dismissed

P. Rama Rao v. P. Adinarayana

Telangana HC6 Dec 2012SA/1147/2011

Case brief

AI extract

What is this about?

The appellant challenged the dismissal of a suit for mandatory injunction and possession. The appellate court held that title was a necessary issue for disposal. It upheld the dismissal as the Municipal Corporation justified the refusal due to deviations from the sanctioned construction plan by the 1st defendant.

What did the court decide?

Civil suit dismissed; second appeal dismissed with costs.

P. Rama Rao Vs P. Adinarayana — Partition | Telangana HC (2012)

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HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU

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S.A.No.1147 of 2011

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JUDGMENT:

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The plaintiff, who lost the litigation in both the Courts below in two rounds, filed the second appeal. He filed the suit for mandatory injunction directing the defendants/respondents to demolish unauthorized and illegal constructions made in the 1^st defendant’s house and to restore common passage to its original position; and for delivery of vacant possession of red marked portion of the plaint plan from the 1^st defendant.

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According to the plaintiff, the 1^st defendant had no manner of right to encroach into the plaintiff’s site to the extent of 7 feet X 35 feet ie. 27 square yards on the north of the plaintiff’s house. The said encroachments were stated to have been made by the 1^st defendant by way of stair case and verandah and without leaving set backs and occupying common passage. The 1^st defendant contested the suit on the ground that he purchased plot No.6/C of 211 square yards under registered sale deed dated 17.02.1979 in which it was stated that 14 feet common passage was left by

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original owner while selling the plot and that the plaintiff could not have purchased the said 14 square yards of site from Chinta Rao (PW.4). It is further alleged by the 1^st defendant that the plaintiff made constructions without leaving set backs to his house. The 2^nd defendant/Municipal Corporation contended that it was not concerned with civil disputes between the parties as no encroachment was made by the parties and that the 1^st defendant made constructions by deviating from the sanctioned plan and therefore the 2^nd defendant issued notices under Sections 452 and 636 of the Hyderabad Municipal Corporation Act to the 1^st defendant. After trial, the trial Court dismissed the suit. On appeal, the lower appellate Court remanded the matter to the trial Court for fresh disposal. Subsequently two Commissioners were appointed and after they filed their reports, the trial Court again dismissed the suit after remand. On appeal, the lower appellate Court also confirmed the said dismissal of suit.

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2. At the outset, it may be noted that though originally the plaintiff/appellant prayed for demolition of constructions made by the 1^st defendant and for delivery of possession of

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27 square yards of the alleged encroached site, by the time the matter reached the lower appellate Court for the second time, the bone of contention between the parties was only in respect of Ac.0.14 cents of land. The original owner Muniamma divided her plot into plot Nos.6/A to 6/D leaving common space of 10 feet between plots 6/B and 6/D and the lay out was sanctioned. Under Ex.A.1 registered sale deed dated 17.02.1979, the plaintiff purchased 211 square yards of site in plot No.6/C out of 225 square yards after leaving 15 feet common passage instead of 10 feet common passage previously registered by the Special Officer, Municipal Corporation of Hyderabad vide permit No.38/70 of 1978 dated 04.08.1987. Subsequently the plaintiff purchased another extent of 14 square yards under Ex.B.8 sale deed from PW.4 on 26.05.1979, in plot NO.6/C only. The contention of the plaintiff that the 1^st defendant encroached into 5 feet X 35 feet site falls to the ground because the plaintiff’s vendor left 5 feet more width of passage throughout the length of 35 feet, making width of the passage as 15 feet instead of width of the passage of 10 feet as per the sanctioned permit or lay out. Having purchased land of 14 square yards under Ex.B.8, which

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land is not available on land after width of the passage is increased from 10 feet wide to 15 feet wide. Therefore, the lower appellate Court held that Ex.B.8 did not confer any rights on the plaintiff for 14 square yards, as the plaintiff’s vendor had no land of 14 square yards for sale by then in plot No.6/C. The said finding is in accordance with evidence on record.

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3. The appellant’s counsel sought to contend as a substantial question of law that in a suit for mandatory injunction, the lower appellate Court should not have gone into the question of title and should not have decided that the plaintiff has no title to 14 square yards of site covered by Ex.B.8. The plaintiff framed the suit not only for demolition of structures of the plaintiff said to have been constructed by encroaching into common passage and also for possession of 27 square yards of site. Without deciding the question of title or entitlement of the plaintiff for the site in respect of which possession is sought for, the suit could not have been disposed of. Not only in a suit for mandatory injunction but also in a suit for possession based on title, enquiry into title of the plaintiff in respect of the properties is not only relevant but also necessary.

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4. When the 2^nd defendant-Municipal Corporation found certain deviations by the 1^st defendant from the sanctioned plan, the 2^nd defendant took steps by giving notice under Sections 452 and 636 of the Hyderabad Municipal Corporation Act to the 1^st defendant. Meanwhile, this civil litigation cropped up between the parties. In the written statement, the 2^nd defendant expressed its desire to pursue in the matter for deviations in constructions made by the 1^st defendant. Therefore, the Courts below rightly dismissed the suit filed by the plaintiff. No substantial question of law arises for determination in this second appeal.

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5. In the result, the second appeal is dismissed with costs.

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____________________________ SAMUDRALA GOVINDARAJULU,J

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Dt.6^th December, 2012

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PNV

P. Rama Rao v. P. Adinarayana

Case brief

What is this about?

What did the court decide?

P. Rama Rao v. P. Adinarayana

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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