Allowed

Dr Chandra Mouli v. K Suguna

Telangana HC20 Mar 2023CMA/336/2022

Case brief

AI extract

What is this about?

This court allowed the civil miscellaneous appeal, setting aside the judgment that remanded the suit to the trial court for a commission warrant. The High Court held remand improper as the warrant had already been returned unexecuted, the plaintiff failed to prove encroachment, and the suit faced limitation bar.

What did the court decide?

The judgment of the lower appellate court is set aside; the suit is dismissed with costs in the main appeal.

Dr Chandra Mouli Vs K Suguna — Property and Title | Telangana HC (2023)

[³²⁵⁸ ]

I I I I

I I ! i

IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAO

¶5

MONDAY, THE TWENTIETH DAY OF MARCH TWO THOUSAND AND TWENTY THREE

¶6

PRESENT

¶7

THE HONOURABLE SRI JUSTICE SAMBASIVARAO NAIDU

¶8

CIVIL MISCELLANEOUS APPE AL NO: 336OF 2022

¶9

Appeal Under order XLlll rule 1 (u) Section j04 CpC against the Judgment and Decree Dated 20th June 2022 in AS No lS ot 2021 on the file of Xl Additional District and Sessions Judge Ranga Reddy District at L B Nagar, preferred the Judgement dated 05/03/2020 in o.s.No.153 of 2o12 on the file of Junior Civil Judge, Hayathnagar

¶10

Between:

¶11

Dr. Chandra Mouli, S/o Viswapathi Age. 68 years Occ. Medical practitio.qer R/o. Rajeshwari Nursing Home, RNH Buildings Hayathnagar Village 8nd Mandal Ranga Reddy District

¶12

...APPELLANT/DEFENDANT

¶13

AND

¶14

K. Suguna, Wo Vasudeva Reddy Age. 61 years, Occ. Housewife R/o. B-2_ 269l19l358llndira Nagar Road No. 2Banjara Hills Hyderabad

¶15

...RESPONDENT/RESPONDENT/PLIANTIFF

¶16

lA NO: 3 OF 2022

¶17

Petition under Section 15i cpc praying that in the circumstances stated in the affidavit filed in support of the petition, the High court may be pleased to vacate the interim suspension order dated. 2o-oz-2022 passed in l.A.No. 2 of 2O22 of the above appeal in the interests of justice

¶18

lA NO: 2 OF 2022

¶19

Petition under Section 151 cPc praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to

¶20

I I

¶21

suspend the operation of Judgment and Decree dated 20-6-2022 in AS 75 of 2021 of the Hon'ble Xl Additional District and Session Judge, Ranga Reddy District at L B Nagar pending disposal of above Civil {,4 iscella neo us Appeal

¶22

Counsel for the Appellant: SRl. KIRAN PALAKURTHI

¶23

Counsel for the Respondent: SRl. S. NAGESH REDDY

¶24

The Court made the following: ORDER

¶25

i-1

¶26

-Jt

¶27

HONOURABLE SRI JUSTICE SAMBASIVA RAO NAIDU

¶28

C.M.A.NO.336 of 2022

¶29

JUDGMENT:

¶30

This Civil Miscellaneous Appeal has been filed by the appellant, who is defendant in OS.No.l53 of 2012 on the file of Junior Civil ludge, Hayathnagar and respondent in AS.No.75 of 2021 on the file of XI Additional District ludge, Ranga Reddy. Being aggrieved by the ludgment of the learned XI Additional District Judge in AS.No.75 of 2021 dated 20-06-2022, where under the learned Additional District Judge allowed the appeal and remanded the matter to trial Court with a direction to get the Commission Warrant in IA.No.410 of 2015 executed, the appellant/defendant filed the present appeal.

¶31

As could be seen from the Judgment in AS.No.75 of 2021 and also in O.S.No.153 of 20t2, it seems the respondent/plaintiff has filed the said suit before the trial Court for a Mandatory Injunction for removal of certain constructions raised by the appellant herein and also for mesne profits. The trial Court dismissed the suit, however the appeal filed by the respondent/plaintiff was allowed by the Additional District ludge. As per the ludgment impugned in the present appeal, the learned

¶32

¶33

55RN,] i i"l A No 136 of 2022

¶34

Additionar District ludge set aside the -ludgment of the triar court and remanded the matter with a direction to the trial Court to restore the suit, get the commission warrant in I.A.No.41O of 2015 executed by the Advocate Commissioner.

¶35

The appellant/defendant has filed the present appeal on the following grounds.

¶36

The lower appellate Court failed to see that the suit filed by the respondent was barred by limitation and did not consider the provisions of Arricle 113 0f Limitation Act. The court below failed to consider the evidence of DW.1 that he was residing in the property for more than 20 years and running a Hospital. The lower appellate Court failed to appreciate Ex. 84 -Sa nctioned plan, and documents filed by the appellant herein, which clearly show that he has obtained the permission from Municipal Corporation Authorities and obtained a sanctioned pran for construction way back in 2001. But the respondent/plaintiff filed the suit for Mandatory Injunction after a period of 10 years which is not maintainable. The appellant further pleaded that the lower appellate court arrowed the appear and remanded the matter to the trial Court for obtaining measurements of the respective extents of parties to the suit which is against the provisions of law. The appellant clairned that Commissioner Cannot be appointed FOr

¶37

SSRN,] C.M.A.No 336 of 2022

¶38

collection of the evidence but the lower appellate Court failed to consider this aspect and exercised improper discretion. He has also claimed that the Court below failed to see that the respondent instead of filing the suit aFter obtaining/ascertaining the correct measurements of her property, filed a suit and then tried to gather evidence. He has also pleaded that the lower appellate Court failed to consider the evidence of DW.1 and gave much weight to the evidence of PW's.1 and 2. He has also pleaded that the sanctioned plan vide Ex.84 shows the actual construction oF the appellant herein was on his plot, thereby, the Court ought not to have remanded the suit for considering the Warrant of Commission.

¶39

Before going to the merits of the appeal, it would be necessary for having a look at the pleadings of the parties before the trial and about the Judgment and as to how the learned Addl. District ludge set aside the order and remanded the matter.

¶40

For convenience sake, the parties will be referred to as they are shown in the plaint filed before the trial Court. The plaintiff has filed the suit stating that she and one prameela joinfly purchased an open plot admeasuring 1145 Sq.yrds in Sy.No.3 of Khasla, Hayathnagar Village under a Registered sale deed dated 28-08-1993, subsequently, the plaintiff and co-owner prameela

I I I i I I I I I

-Er

a r,r A No i-la or .,0ll

¶45

have^partitioned the^plot equally under a Document^registeredas Document No.7141 of L994 dated 24-06-1994.

¶46

The plaintiff has claimed before the trial Court^{that she} has been enjoying open^plot admeasuring^{572.5 Sq.yrds pursuant} to the above referred^{partition and the said propertyis on the} Eastern side of the entire extent.^{It appears from the record that} subsequently the above^{referred Prameela disposedthe property in} favour of the vendor of the^{appellant/defendant, from whomthe} defendant herein^{purchasedthe property under a registered sale} deed. It also appears^{from the recordthat the defendanthas} constructed a Hospital^{and has been enjoyingthe property'}

¶47

The plaintiff has filed^{the suit alleging that the} defendant, who is owner^{of the adjacent plot. constructeda} residential house and^{runninga Nurslng home in the nameand} style of "Rajeshwari^{Nursing Home". The plaintiff has claimed that} there is a well at the^{Western side of the plot, thereby, the} defendant has left setback^{on the Western side to an extent of 58} Sq.yrds and encroached the^{same extent on the Eastern side ie,} from the^plot of the^{plaintiff and constructed a shed for parking} purpose. Therefore, the plaintiff has claimed^{that the defendant} has encroached an extent of 58 Sq.yrds from her property, constructed a parking shed, thereby, sought for a Mandatory

¶48

¶49

ss8N.l t.Nl A No ll5 ol2022

¶50

¶51

-t

¶52

Injunction for removal of the shed and also sought for a Decree to recover mesne profits.

¶53

B. The defendant herein opposed the claim, filed a written statement stating that the suit filed by the plaintiff is not maintainable since it is barred by law and the reliefs prayed are not within the parameters of law and the defendant has claimed that the husband of the plaintiff is a habitual litigant, somehow she wanted to grab the property of defendant in view of hike of prices of the property within the vicinity, thereby, sought for dismissal of the su it.

¶54

The trial Court framed three issues with regard to right of plaintiff for obtaining Mandatory Injunction and mesne profits. The plaintiff was examined as pW.1 and her husband was examined as PW.2. They have marked Exs.A. 1 to A.4. The defendant is examined as DW.1 and he has marked Exs.81 to 84. The trial Court having considered the oral and documentary evidence, dismissed the suit. As per the Judgment oF the trial court, it appears that during the course of triar, the praintiff fired a petition for appointment of an Advocate Commissioner, it was allowed by the court berow and the High court confirmed the said order. However, the Advocate/Com missioner returned the unexecuted warrant before the trial Court stating that he could not

¶55

5! RN,] c Nl A No l16.)r lr.l.l

¶56

execute the warrant in view of the existing structures in the suit sched u le^p roperty.

¶57

The trial Court having appreciated the oral and documentary evidence of both^parties, concluded that the^plaintiFf was not able to prove the suit claim and dismissed the suit.

¶58

The plaintiff filed appeal vide AS.No.75 of 2021.^The learned Additional District Judge having agreed/accepted^the findings of the Court below with regard to the^{issues, was of the} opinion that the Court could have^{consideredthe requestof} plaintiff for appointment of Commissioner for measuring^the property. The learned Additional District Judge felt that it is^{a fit} case for remanding the^matterFor a^{specificpurpose of getting the} suit schedule land i.e.,^land of the^{plaintiff to an extent of 577.5} Sq.yrds measured and it^{is just and necessary to recordthe} physical features and localize the respective extents,^withoutwhich the suit cannot be disposed^{comprehensively.With the above} observation, the Iearned District^{Judge set aside the Judgmentof} the trial Court and remanded the matter for^{fresh disposal after} getting the commission warrant executed. However, from^{the said} ludgment, it is quite clear that none of the^parties to the appeal sought for remanding the suit for fresh disposal. The Interlocutory Appticarion fited for appointment oF Commissioner was decided by

55RN,]

C M A No 3}i ol 2022

the trial Court and accordingly an Advocate Commissioner was appointed to note the physical features of the suit property, but the warrant was returned by the Commissioner stating that he could not have executed the warrant as structures have been raised in the suit property. The lower appellate Court did not frame any point about the necessity to remand the suit to the trial Court.

¶64

Now the following point arose for consideration in the appeal:

¶65

Whether the finding of the lower appellate Court that the suit is fit for remand can be considered and whether the order is sustainable?

¶66

POINT :

¶67

As per the admitted case of both parties and as per the documents placed before the trial Court,. it is very clear that the plaintiff and one Prameela have purchased 1145 Sq.yrds under a registered sale deed. Admittedly, they have partitioned the property into two equal plots. The plaintiff got Eastern portion and the said Prameela got the Western portion. The plaintiff who filed suit for mandatory injunction for removar of certain structures specifically pleaded that the defendant herein having purchased the plot that fell to the share of^prameela from the subsequent

¶68

u !!l1t{ l i M A No l16 ol 1027

¶69

i I

¶70

purchaser, encroached into her property and raised a parking shed.

¶71

ThereFore, it is the case of plaintiff that an extent of 58 Sq.yrds has been encroached by the defendant for construction of a parking shed. In order to prove her claim, the plaintiff herself is examined as PW.1 and her husband has been examined as PW.2. The learned counsel for the defendant has cross-examined these two witnesses and certain important aspects have been elicited during the said cross-exa mination. According to PW.1, she does not know whether Prameela sold 572 Sq.yrds to Paladugu Venkateswarlu, Krishna and another, and whether the defendant purchased the sald property under a registered sale deed. PW.1 has admitted that the defendant is in^possession of the land purchased by him. PW. 1 specifically admitted that the defendant is in possession of 572.5 Sq.yrds and running a Hospital since 20 years. The plaintiff has admitted the boundaries shown in the plaint schedule. PW.1 does not know whether the defendant is having a way to the road from his house. PW.1 has specifically deposed before the trial Court that she filed the suit because she got extent less than 572 Sq.yrds but denied the suggestion that the defendant did not encroach any land and constructed the house on his own property.

¶72

--E7

¶73

558N,1 C.M.A.No ll6 oi 2022

¶74

1 I ..

¶75

The husband of the plaintiff has been examined as PW.2. PW.2 filed his evidence affidavit reiterating the plaint averments. In the cross-exa m ination, PW.2 has admitted the total extent of the plot is 1145 Sq.yrds. During the course of his crossexamination, PW.2 voluntarily stated before the trial Court that an extent of 184 Sq.yrds towards Northern side of the plot was taken for road widening and he was not ready to loose his land to an extent of 58 Sq.yrds towards Western side. He did not give any complaint to Municipal Authorities to conduct survey of the land. PW.1 has claimed that she is in possession oF the property which she got in the partition with^prameela. pW.2 states that an extent of 148 Sq.yrds from this plot was taken for road widening. As per his own admission, the Hospital constructed by the detendant is in existence since more than 10 years.

¶76

The trial Court as well as the. lower appellate Court did not consider the aspect of limitation. It may be true that an Advocate Commissioner was sought to be appointed for measuring the properties. It is on record that the Commissioner returned the warrant saying that the same could not have been executed due to the existence of structures. In such a case, no purpose would be served even if the matter is remanded to trial Court with a direction to get the property measured. In fact, the plaintiff who

¶77

a 5SFN,] C Nr^,1No l16^of2022

¶78

filed the suit for mandatory injunction is supposed to prove that an extent of 58 Sq.yrds from her^property was encroached by the defendant. Except the oral evidence of^plaintiff and her husband, there is no other record to believe the alleged encroachment. It is on record that the defendant did not construct any^{such parking} shed on the Western side of the suit schedule^{property' Therefore,} there is no evidence to conclude the^{allegedencroachmentof} 58 Sq.yrds.

¶79

The Court below without^{formulating any point about} the requirement of remanding the suit,^{and without there being} any request by the appellant,^{remanded the matter to the trial} Court for measuring the suit^{land, inspite of the fact that the} Commissioner appointed by the trial^{Court returned the warrant.} As per Order 41 Rule 23 C.P.C., the^{appellate Court needs to} assign its reasons for such^remand.

¶80

In a Judgment between^{"SyedaRahimunnisavs. Malan} BI (Dead) by Legat Representatives and^{Another't, made an} observation that^{"whileremanding the matter, the appellate Court} needs to assign its reasons for such remand.^{In absence of any} pleadings regarding remand or where party fails to state as to why remand is justified under Rule 23 Order 23_A or 25 of Order 4I I (2016) 10 scc a1s

¶81

¶82

5SRN,] c.M.A.No.)a6 0t 2022

¶83

¶84

I I

¶85

C.P.C., matter cannot be remanded. When the claim oF plaintiFf is barred by lrmitation and when there is evidence to believe that the defendant having obtained Sanctioned plan, constructed a Hospital cum residence in his own plot, the lower appellate Court could not have remanded the matter to the trial Court. The respondent/plaintiff filed certain citations to claim that an Advocate Commissioner can be appointed for measuring the properties in controversy. However, in the light of the present circumstances, ihough a Commissioner was appointed, warrant could not have been executed, no additional purpose would be served by remanding the matter. The Court below misconstrued itself and. came to a wrong conclusion to remand the matter. Therefore, the appeal deserves to be allowed dismissing the request of respondent.

¶86

The respondent/plaintiff filed. the original suit before the trial Court in September, 2012. The trlal Court disposed the suit on 05-03-2020. The lstappellate Court decided the appeal on 20-06-2022 i.e., nearly 10 years after the institution of the suit. As could be seen from the .ludgment of the trial Court, it is very clear that the Commissioner warrant could not have been executed.

¶87

55RN,] a r./ \ rJo ll6 0f 2022

¶88

¶89

In the Judgment referred supra, the Hon,ble Apex Court in Para No.36 oF the ludgment observed as follows :

¶90

"We, however, find no error in the judgment of the first appellate court, which in our view rightly upheld the judgment and decree of the trial court,,.

¶91

Therefore, since no purpose would be served in remanding the case and as the plaintiff is not able to substantiate her claim about the alleged encroachment of the land by the defendant, the appeal deserves to be allowed.

¶92

In the result, the appeal is allowed with costs. The Judgment of the lower appellate Court is set aside. The suit is d ism issed .

¶93

Consequently, Mrscellaneous applications if any, are

¶94

closed.

¶95

MEMORANDU M OF COSTS C.M.A.No. 336 ot 2O22

¶96

Rs. Ps 5-00 10-00 Court 5-00 enclosures 30-00 00-00 25-00 00-00 Total 75-00

¶97

Stamps for Vakalatnama Stamps used for the Memo Stamps for Judgment of the Lower Court Value of Copy Stamp paper used for enclosures Advocate's fee (FC Not filed) Batta and Postage Translation and Printing charge

¶98

(The appettant is entitlcrt to costs of Rs. 75 l_tobepaid by the Respondcnt)

¶99

Sd/. K. SRINIYASA RAO ttrRUE copytt JoINT REclsr(AR ro, sEcTloN dFrtcen , I[J, Addilionar Distri, and Sessions Judse Rar rga Reddy District at L B

¶100

1 2.	TheJuniorCivilJudge, Hayathnagar
3.	One CCtoSRI.KTRANPALAKURTHI,Advocare tOpUCj
4 5	One CC to SRt.S. NAGESHREDDY,Advocate tOpUCl Two CD Copies
XJ, t	V--

q (

, ! i , I

, I : t 1 ,

;i it I!I I

HIGH COURT

SSRN, J

DATED: 2010312023

JUDGMENT

GMA.No.336 of 2022

-r' - -,1 i
,<br>:j.
'i.'.
.*st :. ii
, l- <br>! .) s<br>'
t,:.
..','r
't.j
tl

¶112

ALLOWING THE APPEAL

¶113

WITH COSTS

¶114

'i
.(^<br>+

Dr Chandra Mouli v. K Suguna

Case brief

What is this about?

What did the court decide?

Dr Chandra Mouli v. K Suguna

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Smt. Damera , Katla Vidyasri Vs Damera Gopal

Smt.Ballem , Gangalla Naveena Vs Gangalla Yakob

Ria Kabra Vs Anant Kabra

Smt. a. Taramma and 2 others Vs Smt. a. Manjulaand 3 others

Sri. Cherukupally Prabhakar Vs Smt. Cherukupally Santhoshini

Thota Srinivas Vs Thota Aruna