The High Court allowed a second appeal under Section 100 CPC. It set aside lower court decrees granting a perpetual injunction for a non-existent common court yard, dismissing the underlying suit as the plaintiff failed to establish the property's existence.
The second appeal was allowed and the suit was dismissed. No order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
[32s8 ]
I i I1 I
IN THE HIGH COURT FOR I AT HYDJPXBHE
OF TELANGANA
ry::D3y, rHE EtcHrH DAY oF AUGUST TWo rHousAND AND rwerury runEe.
PRESENT
THE HONOURABLE SRI JUSTICE SAMBASIVARAO NAIDU
E D P N :811 F 2017
Appeal under section 1OO. of CpC., against the Judgment and Decree lii{i3..!,!"i:liflr?':i.[:i,t":{if s:,,trff ":5jr,g,.itt*ffi Judsment and decree aateits..t.io.to ;;; il oli_"Nt..zes of 2009 on th! fire or the courr of the X Junior Civit ,rrigl,'city cr;,I ;"";l Hyderabad.
Between:
...APPELLANTS/APPELLANTS/DEFEDANTS
AND
3,3'fl i,t,,-tj:r3e^iX[,|,ffi,,?ir?#r"j.:*ut6Tyears,occ:pvt.servanr,
...RESPONDENT/RESPONDENT/PLAINTIFF
SAMP . NO: 6't5 oF 20 17
Petition under section- 151. cPC praying that in the circumstances stated in the affidavit filed in suoport of ttre petit,ion] tt J.ff ign Court may be pleased Il',:':ji!.,?tixffi,?L;:l;;:r:,m,:,lllH,%1Jl,t#"",,1*:I**1# the appear and confirming. ttre juo"g;;i'r"na" i"t"" dated 1s.07.2010 ii 3r1H3lj""0e passed-bv th6 X rrri","tirii'rros., city civir court,
Counsel for the Appellant: SRl. N NAVEEN KUMAR
Counsel for the Respondent: SRI KAPARTHI SHIVA SHANKER
The Court made the fo owing: JUDGMENT
/a\
HONOURABLE SRI JUSTICE SAMBASIVA RAO NAIDU
S.A.NO.811of
JUDGMENT:
This Second Civil Appeal has been filed under Section 100 of C.P.C. by the defendants in OS.No.3lt33 of 2009 on the file of lunior Civil Judge, City Civil Court, Hyderabad and appellants in AS.No.315 of 2010 on the file of XXIV,\ddl. Chief Judge, City Civil Court, Hyderabad.
2 SSRN,J S.A.No.811of2017
SSRN,J s.A.No.811of 2017
defendants also demolished their old house and started construction of a new house and raisec certain structures on the suit scheduled property. Thereby, plaintiff said to have presented a complaint to the Municipal Authorities and Municipal Authorities said to have demolished those structures. The plaintiff Further claimed that again the defendants cormenced construction of structure over the suit schedule property, thereby filed the suit sought for a perpetual injunction to res:rain the defendants from raising any structures over the suit comrllon yard.
SSRN,J s.a No-8110f2017
further contentedthat the said Neelam Mallamma executeda settlementdeed in favourof first defendantin respect of land admeasuring43.54 Sq'yrds and he has constructed a house withoutdisturbingthe land of plaintiff, thereby, according to the defendants,there is no such commoncourt yard and they have constructedthe house in and over their property' therebysought for dismissalof the suit' The trial Court framedthe following
issues:
C\
5
SSRN,J s.A.No.811 0f 2017
the plaintiff. They have already completed their construction of the house. The Courts below failed to appreciate the oral and documentary evidence and they have also claimed that the plaintiFf and his brother have constructed first and ground floors without leaving any inch and without obtaining any permission from the Municipal Authorities. The defendants subsequently demolished the old house and constructed a new house within their boundaries without disturbing the Iand of plaintiff. The plaintiff failed to produce any link document to prove their claim over the suit property. The partition deed which was executed among the plaintiff, his mother and brothers was executed after purchasing the suit schedule property. The documents filed by the plaintiff are nothing to do with the suit land but the Courts below without proper appreciation of the evidence, ltassed a decree, thereby, sought for setting aside the judgment ard for dismissal of the suit. B. This second appeal has been admitted on the following
substantial questions of law :
1 Whether ln a suit for injunction, lhe burden is on the defendants to prove the document filed by the plaintiff? 2 Whether the Courts can make oJt a case, which has not been pleaded by the plaintiff and thereby grant relief to the plaintiFf? Whether an injunctron can be granted even though the plaintiff did not prove trtle or the case put forth by him?
55RN'J S.A No 811of 2017
6
g. Heard thelearned counsel for the appellants' None
appearedfor the respondent'
Discussion on Substanial Questions
v
SSRN,I s.a.No.81l of 2017
is such a common courtyard left for theusage ofthe houses owned by plaintiff and defendants.Apartfrom the same, they have to establish that the suit schedulerproperty is available.The defendants have categoricallypleaded that they having demolished the old house, completed the construction and there isno such common court yard. Asper theplaint .lverments, theplaintiff has claimed that when the defendants raist:d some structures onthe suit land said to havepresented a report to MunicipalAuthorities and they said to have demolished the sl:ructures forwhich thereis no evidence.
8 SSRN,I s.A.No.81l.of2017
cross-examination,PW.1 has admittedthat he did not file any plan with thepartition deed, whichwas affected/executedbetween plaintiff, his motherand brother'PW'1 has admitted that Ex'A2 is a certified copyof plan obtainedfrom the City Civil Court' Secunderabadand it is not a registered document' It was elicited from PW.1 thatEx.A2-rough sketch was executedprior to the partition. Thepartitionwasaffectedin 1978'PW'1 has admitted that he didnot mentionas to how his mother acquired the suit scheduleproperty.It is elicited from PW'1 that his compound wall is covered theentire 94 Sq.yrds, whichhe got as per the partition deed. Hedid not obtain permissionfor the constructionof the house. PW.1has admitted that his house has occupiedthe entire 94 Sq.yrdsand he did not leave any set backs for the house' PW.1 categoricallyadmitted that he and defendants have got separate compoundwall. It is elicited from PW' 1 that the defendantsstartedthe constructionin June, 2009 and denied the suggestion thatthey completed the construction in July 2009' The important admissionfrom PW'1 is with regard to the usage of way in front of theirhouse. PW.1 categoricallyadmittedthat he and his brother havegot a separateway from the front side of the
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9
SSRN,J 5.A.No.811 of 2017
I I
I )
house which is on the southern side a rd the alleged court yard is on the rear side of the house i.e., on the northern side.
55RN,J S.A.No.811of 2017
10
15.Inviewoftheseadmissions,itisveryclearthatthe defendantsalso demolished the old house and raised structuresof the houseconsistingof three floors' Therefore'before the plaintiff filed the suit,the defendants are in a position to raise their house' Thereby, thequestion of leaving some common court yard and it is available foringress and aggressof the parties' more particularly' when theproperty is on the rear side of the house of plaintiffdoes not arise.But the trial courtand first appellate courtwithout consideringthe oral and documentary evidencesimply carried away withthe plaintaverments granted an iniunction'as if' a commoncourt yard is availablefor parties to the suit' Therefore,the findings of the trial Court and first appellate Court areperverse and liable to be set aside'The plaintiff is not able to establish theexistenceof commoncourt yard and his right over theproperty. Therefore, the suit is liable to be dismissed' Therefore,the appealis liable to be allowed'
Consequently,Miscellaneousapplicationsif any' are closed'
No!qqqs_.
Sd/- B.S.CHIRANJEEVI JOINT REGISTRAR //TRUE COPY// qD SECTIONOFFICER
To't. Tn" xxnr Additionarchief Judge, city civil court, Hyderabad. (withRecords if anv) 2 t#''{ .lunio, CivilJudse,CitvCivil Court,Hvderabl9'. ^. 3 cj;;ecl;-bRi.r.r-r.rAVeeu'xuMAR, Advocate IoPUcl 4 ffi dd i;SRi.KnijARiHisnrVA Si{ANKER, Advocate [oPUC] 5. Two CDCoPies pr
HIGH COURT
SSRN, J
DATED: 0810812023
JUDGMENT
,d,.; g Tjt;E,
(
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SA.No.811 of 2017
ALLOWING THE
SECOND APPEAL
l o ))
IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD
TUESDAY, THE EIGHTH DAY OF AUGUST TWO THOUSAND AND TWENW THREE
PRESENT
THE HONOURABLE SRI JUSTICE SAMBASIVARAO NAIDU
SECOND APPEAL NO: 811 OF 2017
Between:
...APPELLANTS/APPELLANTS/DEFEDANTS
AND
G Suryam, S/o. Late Gatti Narayana, Aged about 67 years, Occ: Pvt. Servant, Rl/o. H.No.1-3-714, Kavadiguda, Hyderabad.
...RESPONDENT/RESPONOENT/PLAINTlFF
Appeal under section 100 of CPC., against the Judgment and Decree dated 30.06.20'14 passed in A.S.No.315 of 2010 on the file of the Court of the XXIV Additional Chief Judge, City Civil Court, Hyderabad, and confirming the iudgmentand decreedated 15.7.2010 passed in O.S.No.3733 of 2009 on the file of the Court of the X Junior Civil Judge, City Civil Court, Hyderabad.
ORDER: This appeal coming on for hearing and upon perusing thegrounds of appeal, the Judgment and Decree of the Lower Court and the materialpapers in the case and upon hearing the arguments of SRl. N NAVEEN KUMAR, Advocate for the Appellant and of SRI KAPARTHI SHIVA SHANKER, Advocate for the Respondent.
This Court doth Order and Decree as follows:
Sd/- B.S.CHIRANJEEVI JOINT REGISTRAR
//TRUE COP'|7/
C4
SECTION OFFICER
To,
pr
HIGH COURT
DATED: 0810812023
DECREE
SA.No.811 of 2017
ALLOWING THE
SECOND APPEAL
L0 le
2 issues framed by the court
Whether an injunction can be granted when the plaintiff failed to prove the existence of a common court yard?
Whether the courts can grant relief on cases that have not been properly pleaded or proved by the plaintiff?
1 provisions across 1 enactments
Neelam Laxman
Neelam Srinivas
G Suryam
Sambasivarao Naidu
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
