The High Court · 2025

Counsel for the Respondent Nos. 1 to 2: The Court delivered the following Judgment : -tn HON'BLE SRI JUSTICE LA>(MI NARAYANA A.LISHETTY SECOND APPEAL No.77 of 2O25 JUDGMENT: This Sccond Appeal is liled challenging the common judgment and decree dated 24.O9.2024 passed in respec.t of A.S.No.44 of 201'7 on the file r.)f the I Additional Chief Judge, City Civil Court at Secunderabad, whereby and whereunder the judgment and decree dared 27.07.2017 in o.s.No.730 0f 2009 0n the file of the xlx Additional Ser-rior Civil Judge, City Civil Court at Secunderabad, was confirmed.

2. Heard Sri K.Venumadhav, learned counsel for the appellant.

3. The appellant herein is plaintiff and respondents herein are defendants. F or convenience, the parties are hereinafter referred to as they were arrayed before the trial court.

4. Brief facts leading to liling of the present second appcal are that appellant-plaintiff filed suit in O.S.No.730 of 2O09 on the file of XIX Additional Senior Civil Judge, City Civil Court, Secunderabad for perpetual injunction against the respondents-defendants. tt is contended that plaintiff approached the defendant No.1 corporation to accord permission for construction, and after scrutiny of title and by colleting necessary charges, the defendant No.1-corporation granted permission for construction vide permit No.157/86 of 2OO9 f]- 'i ,. :Pjg" il, - .;r*+ -gl.:s: r...r. - '?::*Y;L-I' - LNA, J S.A.No.77 of 2025 in file No.3 L62 ITPS I C-18 INZIGHMC/B4 l2OO8, dated 12.A8.2OO9. Immediately after obtaining said permission, the ptaintiff commenced construction duly intimating to defendant No.1 corporation, and as on the date of filing of the suit, construction was completed; that the defendant No.1 corporation tried to demolish the suit property on

10.11 .2OOg without issuing any notice, without considering the intimation letter dated 17.O8.20O9; and without following due procedure, as contemplated under the HMC Act, 1955, and without assigning any valid reasons. H-ence, the suit.

5. In the written statement filed by the defendant No.l, it is contended that the plaintiff obtained permission from defendant No.l-Corporatin for proposed construction of ground, first and second floors for residential purposes within tfre p.e..rises No.6-1- 491/4, situated at Krishna Nagar Colony, Secunderabad vide permit No.157186 dated 12.O8.2OO9 in L8/NZ|GHMC|B4|2OO8. However, it is denied that the plaintiff file No.3162/TPS/C- commenced construction in accordance with sanctioned plan; that the plaintiff has not given any notice as required under Section 440 of HMC Act, which is mandatory under the provisions of HMC Act; that while constructing the building, deviations were noticed which are in contravention to sanctioned plan; that the said deviations are not only against sanctioned plan, but also in violation of G.O.Ms.No.86 MA, dated 03.O3.20O6; that the defendant No.1- LNA, J S.A.No.77 of 2025 for deviations carried out by plaintiff, against the sanctioned plan; J that the plaintiff is bound to serve statutory notice under Section 685 of HMC Act which is mandatory and therefore, the suit is not maintainabk:.

6. Defenclant No.2 filed a written statement and counter claim and averred that he is the absolute owner of all that property bearing No.6-4-491/4 which is adjacent to the suit property and further submitted that having seen the proposed construction of the plaintiff requested him to show the sanctioned plan and also requested at least make construction by giving proper set backs so that defendant No.2 could enjoys free flow of air and light; that plaintiff carried out construction without leaving proper set backs and therefore, he lodged complaint with the police against the piaintiff; that the defendant hled counter claim praying'the Court to grant mandatory injunction directing the defendant No.l to demolish the illegal construction made in violation of the permission accorded for construction by defendant No.1 vide permit No.157/86 of 2OO9 in file No.3 162ITPS/C- 18 I NZI GHMC/84 I 2oo9 dated 17 .o8.2oo9. 7. Plaintiff filed rejoinder to the written statement cum counter claim of the defendant No.2 denying the allegations made in the written statement cum counter claim and submitted that he made construction after obtaining the sanction plan from the defendant No. i and further contended that no valid grounds and reasons are -z l iiiI! LNA, J S.A.No.77 of 2025 made out by the defendant for setting up counter claim; that he has O 4 not violated the sanction plan approved by the defendant No.1 in making the construction and the entire construction has been completed and they are residing in the building.

8. The trial Court basing on the pleadings of both the parties framed following issues: "i. Whether the plainttff made construction in the suit schedule properly in accordance with sanction plan? it. Whether first defendant interfered with the suit schedule propertg attempted to demoltsh the same witlnut any rights and justification as alleged by the plaintifJ? iii. Whether plaintiff made constntction in uiolation of the sanction plan as alleged'by defendantNos..I and2? iu. Wlrcther the plaintiff is entitled to perpetual injunction as praged for? u. Whether the second defendant is entitled to mandatory injunction against the defendant No.2 as prayedfor in the counter claim? ui- To what relieJ? 9 Before the trial Court, on behalf of the plaintiff, P.W.l was examined and Exs.Al to A4 were marked. On behalf of the defendant No.2, DWl was examined and Exs.B.l to 8.23 were marked. The defendant No.2 also examined D.W.2 who is a Assistant City Planner of GHMC, Secunderabad through him Exs.X.1 to X.5 were marked. .n 5 LNA, J S.A.No.77 of 2025

10. Ttre trial Court on due consideration of oral and documentary evidence dismissed the suit of plaintiff and allowed the counter claim of defendant No.2 on 27.o7.2o17 by making following observations: "(tt) D.W.I tn hts euidence deposed that the ptaintiff comrnenceti constntctton of his house dupng December, 2008. Whereq.s Ex.A.2 sanction plan issued on 1tl.0B.2OO9 the date of application for perntlssion of construction made on 30.10.2008 as per Ex.A.2. Euen tn the cross-examination of D.W.2 stated that the plaintiff obtained the pennission from GIIMC uide permisston No. 157/ 86 dated 12.08.2008. Whereas stated bg D.W.I the constntction was cotnm.enced in December, 2008. The euidence of D.W.1 shows that the constntctiort u)as commenced much prior to the permission granted to the plaintiff. That shouts that the plainttffs has commenced the construction utork without obtaining permi.ssion from defendant No. 1. Th.ough the plctinttff filed rejotnder to the counter claim fited bg the defendant No.2 the plaintiff has not spectfically dented the auerments of the defendant No.2 made in his written statement stating that the ptaintiff has cotrltnenced tlrc constructton in December, 2OOB. (iil Though the ptaintiff filed rejoinder in the suit and aLso ftted his chief afftdautt and got marked E_xs.A.l to 4.4. He auoided to enter into the witness box and stcfes hi.s own case on oath and does not offer hilnto be cross-examined by the defendants. Therefore, presumption can be draw under Section 114 of Indian Euidence Act against the ptaintiff. In fact the plaintiff ho.-s cross-examined the D.Ws.l and. 2 but nothing b elicited to dbproue the counter claim plea<iings of defendant No.2. TLnt apart the euid"ence qf D.W.2 o J, 6 LNA,J S-A-N0.77 of 2025 clearly reueals that *Le plaintiff hns not made constntction in the suit schedule property in accordance with sanction Plan. iii. Though the plainttff in the rejoinder fited to the uritten statement atm counter clqim pleaded that the plaintiff uas not uiolated plan approued bg..defendant No.lwhitemakingtheconstructionbut.ttrcplaintiff failed to adduce any matenal euidence either oral or documentary euid.ence to dispute ttrc notice issued by the defendant No.1 und.er Section 452 of HMC Act' 1955 dated. 16.12.2006. Euen in the cross examination of D.W.2 there fs no suggestion made to the witness d.enying about the contains of Ex'X'S notice and the euidence of D.W-2 regarding the deuiations in the constnlctionmadebytheplaintiffinthesuitschedule property. On seeing the eutdence on remrd plaintiff hns approached the Court with unclean hands to restrain the defendant No.l in interfeing in proceeding his unauthorized. construction against the sanction plan' iu. Admittedly in tlrc instant case though tte defendant No.I issue d" notice dated 16.12.2009 at tle initial stage the ptaintiff neither submitted hfs explanation nor submitted his statement to the defendant No'7' Euen afier filing of ttrc same bg the ftrst defendant and also pleaded in the written statement of deferdant Nos'l and 2 the plaintiff did rnt adduced any euidence to disprouing the contention of the plaintiff regarding the deuiqtionsintheconstructionoftlesuitschedule properlg, the failure of ttrc ptaintiff in adducing euidence to proue hb ca.se it raise a aduerse inference against the ptaintiff that he did not haue ang ense to dbproue ttrc contention of the defendants. On th'e otlrcr hnnd the d.efendant No.2 proued his case that due to ttle d.euiations in tle construction of suit scledule propertg ,ff 7 LNA, J S.A.No.77 of 2025 bg the plaintiff the easementary rights of deJbndant No.2 are effected. u. The plaintiff had proceeded utith the constru<:tion of suit schedule butlding tnspite of the notice issuerd bg the defendant No.I under Ex.X.S specificallg nu:ntioning that the ptatnttff had carried out the construction work in cortrary in the sanction plan dated. 12.08.2009 and" also noted the deuiations in the constructed building and called upon the plaintiff to show cantse in. writing either him.self or hi"s duly authorized agent within 10 dags after the seruice of said notice on the .olaintiff. Euen the plainttff did not respond to the oltjections raLsed by the defendant No.2 bg ad"d,ressing letters to the defendant No.1 under Dxs.B.1 to 8.5, Exs.fJ.12 and 8.13 raising the objection tlut the plaintiJf has proceed"ing with the constntction tuork agatnst *Le sanctioned plan. ui. On aforesaid discussion and scrutinizi.ng the euidence on record to protect the easementary rights of light and air of defendant No.2 Mandatory Injunction shalL be grantted directing the defendant Nct.l to demolbh tLrc illegal construction made bg the ploilttiff in uiolation of the permission accorded for construclion of the suit schedule propertg uide permit No.157/ 86 of 2009 dated 1 7.O8.20O9.' 1 1. Aggrieved by the judgment of the trial Court dated 27.O7.2017, plaintiff filed appeals in A.S.No.44 of 2Ol7 and A.S.No.4S of 2017 before the Court of the I Additional Chief Judge, Cit-v Civil Court, at Secunderabad LNA, J 5.,A.No.77 of 2025 L2. The first appellate Court vide its judgment and decree dated o 8

24.Og.2O24 dismissed both the appeals by making following observations: "i. On pentsal of the written statement-anm-counter claim, the d"efendant No.2 sought mandatary injunction directing the defendant No.l to demolish the illegal construction made and or going to be made in uiolation of the permission accorded for construction bg defendant No.1 uide permit No.157/75 of 2OO9 in Ftle No.3 1 62/TPS/ C-l8/ NZ/ 84/ 20OB dated 17.08.2009 and the aboue permit is pertaining to the plaintiff and when the plaintiff rights effected and whether defendant No.l not taken ang action against tlrc plaintffi defendant No'2 filed counter claim and the defendant No-2 not proued that ptaintiff uiolated the construction permission accorded by defendant No.7, tlrcrefore, . in the circumstances, though ttle relief claimed against the defendant No.7, it is indirectlg in respect of propertg of plaintffi therefore, this Court is of the opinion that the counter claim i"s mainta"inable. ii. On pentsal of euidence of D.Ws.l and 2 and the doqtments Exs.B. 1 to 8.23 and Exs.X.l to X.5, it shortts that tfle plaintiff made constructions uiolating ttle sanction plan, therefore, the plaintiff is not entitled for ang equitable reltef of permanent injunction against the d"efend.ant No.l. Tlerefore, the plaintiff failed to proue his case. Hence, there is no necessitg to interfere uith the findings giuen agairust the plaintiff while dismi'ssing th.e suit."

13. Aggrieved by the judgment and decree dated 24.09.2024, the -\ present second appeal is filed by the plaintiff. 7; ,i i i, t : :. zI ! LNA, J S.A.No.77 of 2025 14. Learned counsel for the appellant contended l-hat the trials R 9 I i r Court as rvell as first appellate Court have erroneously dismissed the suit. and zrllowed counter claim filed by the defendanl. No.2 without proper appreciation of oral and documentary evidence placed on *, record. He would contended-that the trial Court as well as appellate Court committed error in permitting the defendant No.2 to be impleaded as a party to the suit and also decreed the counter claim contrary to the evidence and material. He also conr.ended that the trial Court ignored documents liled by the plaintitf and had given much reliance to the documents filed on behalf of ,lt:fenclants and had come to erroneous and perverse findings and t hus, prayed to allow the appcal.

15. A perusal of the record discloses that the piaintiff obtained permission vide sanction plan dated L2.O8.2OO9 but commenced construction in December, 2008 which is much prior to the sanctioned plan and defendant No.1 corporation has stated that construction was made in violation of the sanctioned plan without following set-backs and also in violation of G.O.Ms.No.86 dated

02.O3.2006. It is also evident that defendant No.2 placed material on record to show that construction was made contrary to the sanctioned plan and that right of defendant No.2 to access to free flow of air and light are infringed. It is also relevant to note that r"v though, plaintiff was examined P.W. i and Exs. A.1 to A.5 were 4 t; l: LNA, J S.A.No.77 of 2025 marked, he did not enter the witness box for cross-examination and o l0 failed substantiate his contentions. Therefore, the trial Court and appellate Court have rightly dismissed the suit of plaintiff and allow the counter claim of defendant No.2 and therefore, this Court does not find any reason or ground to interfere with the impugned judgment.

16. The learned counsel for the appellant failed to raise any substantial question of law to be decided by this Court in this second appeal. In fact, all the grounds raised in this appeal are factual in nature and do not qualify as the substantial questions of law in terms of Section 100 C.P.C.

17. It is well settled principle by a catena of decisions of the Apex Court that in the Second Appeal filed under Section 10O C.P.C., this Court cannot interfere with the concurrent lindings arrived at by the first appellate Court, which are based on proper appreciation of the oral and documentary evidence on record.

18. Further, in Gurdea Kaur a. Kakll, the Apex Court held that the High Court sitting in Second Appeal cannot examine the evidence once again as a third trial Court and the power under Section 1O0 C.P.C. is very limited and it can be exercised only where a substantial question of law is raised and fell for consideration.- -1 t lzoOzl 1 Supreme Court Cases 546 LNA, J S.A.No.77 of 2025 19. Having considered the entire material available on record and the findings recorded by the trial Court as well as the Appellate Court, this Court linds no ground or reason warranting interference u,ith the said concurrent findings of first appellate Court, under Section 10O C.P.C. Moreover, the grounds raised by the respondent are factual in trature and no question of law, lnuch less, a substantial question of law arises for consideration in this Second Appeal.

20. Hence, the Second Appeal fails and the same is accordingly dismissed at the stage of admission. No costs. Pending miscellaneous applications, if any, shall stand closed. Sd/. P.CH, NAGABHUSHAMBA DEPUTY REGISTRAR //TRUE COPYII SECTION OFFICER To,

1. The I Additional chief Judge, city civil court at secunderabad 2' The XIX Additional Senior Civil Judge, City Civil Court at Secunderabad. 3. One CC to SRt. K. VENUMADHAV, Advocate tOpUCI 4. Two CD Copies kul/PSL I HIGH COURT DATED i25102t2025 \ / I JUDGMENT SECOND APPEAL No.77 ot 2025 i)(. .\ -.r; 4-'--' t';'r; - i (-- J J 22 ltl0tt rut a * .sp.c TC urrO * DISMTSSING THE SECOND APPEAL AT THE STAGE OF ADMISSION v