The High Court · 2025

HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY SECOND APPEAL No.73 of 2O2Ii JUDGMENT: This Second Appeal is hled challenging the r,rrnmon judglment and decree dzLled 24.O9.2O24 passed in respect ol- .1 .S.No.45 of 2Ol7 on the filt: of the I Additional Chief Judge, CL1-; Civil Court at Secunderai:ad, whereby ald whereunder the juclernent and decree dated 27 .A7 .2017 in O.S.No.730 of 2OO9 on tl.rr.r file of the XIX Additional llenior Civil Judge, City Civil Court at Scr:r.rnderabad was confirmed.

2. Heard Sri K.Venumadhav, learned counsel fo;- ,)-re appellant.

3. The a,ppellant herein is plaintiff and resporrrr cnts herein are defendalts. For convenience, the parties are hereirr;fter referrt d to as they werr: arrayed before the trial court.

4. Brief facts leading to filing of the present sr:. ond appeal are that appellant- plaintiff filed suit in O.S.No.730 of 2COg on the file of XIX Additior:al Senior Civil Judge, City Civil Court, S: <:unclerabacl for perpetual injunction agajnst the respondents-detr:,-l dants. Ir, is contended that plaintifl approached the defendant l,r 1 corporarion to accord pe:rnission for construction, and after scrrijny of title and by collecting necessary charges, the defendant .\,>.1-corporation granted pernrission foi construction vide permit No. :,7 / /g of 2(,)O9 in file No.3152 /TPS/ C-18 /NZ/3HMC/B4 /2OOB, dat, rl 12.08.20119. __ _. .l 2 LNtl, J S.A.No.73 of 2023 Immediately after obtaining said permission, the plaintiff commenced construction duly intimating to defendant No.1 corporation, and as on the date of filing of the suit, construction was completed; and as on the date of filing of the suit, constmction was completed; that the deiendant No. 1 corporation tried to demolish the suit property on

10. 1 1.2009 without issuing any notice, without considering the intimation letter dated 17 .O8.2OO9 , and wlthout following due procedure, as contemplated under the HMC Act, 1955, and without assigning any valid reasons. Hence, the suit.

5. In the written statement filed by the defendant No. 1, it is contended that the plaintiff obtained permission from defendant No. 1-Corporation for proposed constmction of ground, first and second floors for residential purposes within the premises No.6- 1- 491/4, situated at Krishna Nagar Colony, Secunderabad vide permit file NJ.alOZTreSTc- No.157l86 dated 12.o8.2OOg in I8/NZ/GHMC /84 /2OO8. However, it is denied that the plaintiff commenced construction in accordance with sanctioned plan; that the plaintiff has not given any notice as required under Section 44O of HMC Act, which is maldatory under the provisions of HMC Act; that while constmcting the building, deviations were noticed which are in contravention to sanctioned plan; that the said devialions are not only against sanctioned plan, but also in violation of G.O.Ms.No.86 MA, dated 03.03.2006; that the defendant No.l- 3 s.A.N,.?t:l/;r! corporation served show cause notice under Secti(,.t 452 of HIVIC Act for deviations carried out by plaintiff, against tl.rc sanctioned plan; that the F,laintiff is bound to serve statutory nor;ce under Section 685 ol HNIC Act which is mandatory and therelir-r. the suit is not maintainal:le.

6. Defendant No.2 filed a written statement :.urd counter claim and averred that he is the absolute owner of all th;tt property bearing No.6-4 49 I /4 rvhich is adjacent to the suit prop€.rfy and ftrrther submitted that having seen the proposed constru.r i )n of the pl:rintiff requested him to show the sanctioned plan and : Iso requested at least make constmction by giving proper set back_. I o that defendant No.2 could enjoys free flow of air and light; that pl: intiff carrie,l out construction rvithout leaving proper set backs .r.rrl thereforr:, he lodged conrplaint with the police against the 1:laintiff; that the defendant liled counter claim praying the Court tc, 1.lnt mandatory injunction directing the defendant No. l. to derr:,rlish the illegal constructio:t made in violation of the permissi(_ 11 accorded for constmction by dcfendant No. I vide permit No. tsr rtia., of 20o9 in frle No. 3 1 62 /Tt'S I C- 1 8 / NZ / GHMC / 84 / 2OO8 dated 1 7. 0 ! . 2O09. 7. Plaintiff hled rejoinder to the written staterr.crLt cum counter claim of the clefendant No.2 denying the allegatrorrs made in the written statement cum counter claim and submi r'i that he nrade constructio. alter obtaining the sanction plan fr.r: the defen<lant 4 LNA, J S.A.No.7 3 of 2025 No.l and further contended that no valid grounds and reasons are made out made by the defendant for setting up counter claim; that he has not violated the sanction plan approved by the defendant No.l 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. Wlrcther the plaintiff made consttltction in the suit schedule propeftA in accordonce uith sonction plan? ii. Whether first defendant interfered tuith the suit schedule propertlJ attempted to demo\ish the same uithout ang ights and justifi.cation as alleged by the plaintiff iii. Whether plaintiff made constntclion in uiolation of the sanction plan as alleged bg defendant Nos- I and 2? iu. Whether the plaintiff is entitled to perpetudl injunction as praged for? u. Whether the second dekndatlt is entitled to mandatory injunction against the defendant No.2 as prayed for in the counter claim? ui. To uhat relieJ?

9. Before the trial Court, on behalf of the plaintiff, P.W. 1 was examined and Exs.Al to .A4 were marked. On behaif of the defendant No.2, DWl was examined and Exs.B.1 lo 8.23 were marked. The defendalt 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 ) LN,I. J S.A.No.73 oJ 2025

10. The lrial Court on due consideration of oral : tld documentary evidence dismisscd the suit of plaintiff and allowecl ttre counter claim of defendant No.2 on 27.O7.2O17 by making followir ] observations: "(t) D.W. 1 in his euidence deposed ttnt tilt' olaintiff commenced constnlction of his house duing Lt:cember, 2r)OE. Whereos Ex.A.2 sanction plan is:.:ued on 12.08.2009 the clate of application for penr, s sion of cc'nsrruction made on 30. 1O.20OB as per Ex.,\ z. Euen in tle cross-examination of D.W.2 stated ltat the plaintilf obtainecl thc pennission from GM4C uide per,?1r-s.sron No. 157/ 86 dated 12.08.2008. iA1tereas staterT by D.W.I the constnlction LUCI; comtu nced in Decernber, 2008. The euidence of D.W.1 shou':: that the conslnlction rras commenced much pictr to the pennission granted to the plctintiff. That shou: that the plaintrffs hos commenced the constntctton tuor]- .uithout oL'taitlng pennission from defendont No. 1 . T,.t leh the plaintiff filed rejoinder to the counter claim flr-:<L by the defendant No.2 the plaintiff ho,s not specificail'., denied th'? (r uerments of the dekndant No.2 macl,, iln,his u.ttitten statement stating that the plainr. jf commcnced lhc constrltction in December, 2o0tl (ii) Though the plaintiff f.led rejoinder in the: : rrit and al:;o lilcd his chief alfidauit and got marked I',-Ls.A.l to 4..+. IIe auoided to enter into the uitness t ox and sfrrfe-s his own case on oath and does not offer lr;m to be cross examined by the defendants. presumption can be drau under Section 174 r,,' lnd.ian Euidence Ad against the plainttff. In fact the ,rlainhff hr:s cross-examined the D.Ws.1 and 2 but nr.lhinq is elicited to disproue the counter claim plead. trys of de,renclant No.2. That apart the euidence )t D.W.2 ','',e,refore, t : 6 LNA, J S.A.No-73 of 2025 clearlA reueals that the ptaintiff hos not made constnrction in the suit schedule propertg in accordance uith sctnction plan. iii. Though the plainttff in the rejoinder filed to the uitten statement cum counter claim pleaded thot the plaintiff uras not uiolated plan opproued by defendont No.l rrhile making the construction but the plaintiff foiled to adduce ang moteiol euidence either orol or doatmentary euidence to dispute the notice issued bg the dekndant No.1 under Section 452 of HMC Act, 1955 dated 16.12.2006- Euen in the cross exomination of D.W.2 there is no suggestion made to the uitness denging about the contains of Ex.X.S notice and the euidence of D.W.2 regarding the deuiations in the constntction made bg the plaintiff in the suit schedule propertA. On seeing the euidence on record plaintiff has approached the Court uith unclean honds to restrain the defendant No.l in interfeing in proceeding his unauthorized construction against the sanction plan. iu. Admittedlg in the instant case though the defendant .l{o. I issued notice dated 16.12.2009 at the initiql stage the plaintiff neither submitted his explanatioi nor submitted his statement to the defendant No.1. Euen ofter ftling of the same bg the first defendant and also pleaded in the utitten statement of defendant Nos-l and 2 the plainti,ff did not adduced ang euidence to disprouing the contention of the plaintiff regarding the deuiations in ' the construction of the suit schedule propertA, the failure of the plaintiff in adducing euidence to proue his case it raise a aduerse inference against the plaintiJf that he did not haue ang case to disproue the contention of the defendants. On the other hand the defendant No.2 proued his case that due to the 7 LNA, J S-A.No.73 of 2025 cleu{ations in the constntction of suit schedul: propeftA Ltg the ptainttff the easementary ights of rt.efendant IIo.2 are effected. t'. The plaintiff had proceeded uith the con.st.',Lction of suit schedule building inspite of the notice LsstLed bg the c!.ekndant No.I under Ex.X.S specificallg r,'e,ntioning ttnt the plaintiff had caried out the constru.<:rictn tuork in" contrary in the sanction plan dated 12.Oti.:l)09 and a.lso noted the deuiations in tlae constructe'd building a.nd called upon the plaintiff to shotu cause tr,. taiting either himself or his dulg authori.zed agent r dtltin 1O d.ags a.fter the seruice of said notice on th.t, .obinttff. E)uer the plaintiff did not respond to the <'bjections raised bg the defendant No.2 by addressinq l"tters to tne defendant No.l under Exs.B.1 to 8.5, Exs,lt.12 and El.13 raising the objection that the plcnttiff hos proceeding uith the consttt:ction utork ctqt.,.tnst the sanctioncd plan ui. On aforesaid discussion and scn tn;-:ting the euidence on record to protect the easementaty ,ights of light ond air of defendant No.2 Mandatory lnjdnction shatt be granted directing the d-eknd.ant wo.i to demolish the illegal construction made bg the plaintiff in uiolation of the pennission accorded for con::tru,ction of the suit schedule propertA uide pennit No 1,;7/86 of 2OO9 dated I 7. O 8.2009. "

11. Aggr eved by the judgment of the trial Court clated 27.O7.2017, plajntiff hled appeals in A.S.No.45 of 2077 before 1.he Court of the I Additional Chief Judge, City Civil Court, at Secunderabad .J 8 LNA, J S.A.No.73 of 2025

72. The hrst appellate Court vide its judgment and decree dated

24.09.2024 dismissed both the appeals by making following observations: "i. On pentsal of the uitten statement-cum-counter claim, the dekndant No.2 sought mandatory injunction directing the dekndant No.l to demolish the illegal construction made ond or going to be made in uiolation of the perm[ssion accorded for construction bg defendont No. 1 uide permit No.157/ 75 of 2OO9 in File No.3 162/TPS/ C-18/ NZ/ 84/ 2OO8 dated 17.O8.20O9 ond the aboue pennit is pertctining to the plaintiff and when the plainttff nghts effected and tuhether defendant No.1 not taken any action ogainst the plaintiff, defendant No.2 filed counter claim and the defendant No.2 not proued that platntiff uiolated the construction peruniss[on accorded bg defendant No.1, therefore, in the circum.stonces, tlaugh the relief claimed against the deJendant No-l, it is indirectlg in respect of propertg of plaintiff, therefore, this Court is of the opinion that the counter claim is maintainable - ii. On pentsal of euidence of D.Ws.l and 2 and the documents Exs.B.1 to 8.23 and Exi.X.1 to X.5, it shou)s that the plainttff made constntctions uiolating the sanction plan, therefore, the plaintiff is not entitled for ong equitable relief of pennanent injunction agdinst the defendant No.l. Therefore, the plaintiff failed to proue his case. Hence, there is no necessitA to interfere u.rith the findings giuen against the plaintiff u-thile dismissing the suit. " 13 Aggrieved by the judgment and decree dated 24.O9.2024, 1.be present second appeal is filed by the plaintiff. 9 LNA, J S-A-No.73 of 2025

14. Learned counsel for the appellant contended rhat both the trial Court as v,'e11 as first appellate Court have erroneor.tsly dismissed the suit and allorved cor-rnter claim filed by the defenclant No.2 without proper appreciation of oral and documentary evi-ence placed on recbrd. He would contend that the trial Court a-" rvell as appellate Court committed error in permitting the defen: lrnt No.2 to be impleaded as a party to the suit and also decreed ttre counter claim contrary to the evidence and material. He also co.t.ended that that the trial Court ignored documents hled on behalf ol defendants and had come to erroneous and perverse hndings antl thus, prayed to allow the appeal.

15. A perusal of the record discloses that the 1r taintiff obtained permission vide sanction plal dated 12 .O8.2OOtr but commenced construction in December, 2008 which is mtr:.h prior to the salctioned plan ald defendant No.l corporation hals, stated that construction was made in violation of the sanctior-t:d plan without following set-backs arid also in violation of G.O l,{s.No.86 clated

02.O3.2006. It is also observed that defendant No.t,, placed material on record to show that construction was made c:ontrary to the sanctioned plan and that right of defendant No.2 ro access to free flow of air and light are infringed. It is also rel:r..rnt to note that though, plaintiff was examined P.W. 1 and Exs. r.. 1 to A.5 were marked, he did not enter into the witness box for ct.rlss-examination :j l0 LNA, J S.A.N1.73 of 2025 and tailed to substantiate hts contention. 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 hnd 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.

77. It is well settled principle by a catena of decisions of the Apex Court that in the Second Appeal hled under Section 1OO C.P.C., this Court cannot interfere with the concurrent findings arrived at by the first appellate Court, which are based on proper appreciation of the oral and documentary evidence on record. t ,

18. Further, in Gurdea Kqur u. Kakil,.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 100 C.P.C. is very limited ald it can be exercised only where a substantial question of law is raised ald fell for consideration.

19. Having considered the entire material available on record and the findings recorded by the trial Court as well as the Appellate ' (2007) I Supreme Court Cases 546 LNA, J s-A.No.7J of 2025 Court, this Court finds no ground or reason warr:, trting interference with the said concurrent findings of hrst appe.late Court, under Section 1()0 C.P.C. Moreover, the grounds raisecl :y the respondent are factual in nature and no question of l,arv. much L:ss, a substa,tizrl question of Iaw arises for considerar i, r in this Second Appeal.

20. Hence, the Second Appeal fails and the sa,rie is accordingly dismissed at the stage of admission. No costs. Pending miscellaleous applications, if any, r;tLr,rll stand closed. //TRUE COPY// Ir SD/- MOHD. ISMAIL DEPUTY REGISTRAR ISECTIoN OFFICER ( I To, t The Court of the I Additional Chief Judge Civil (jourt at Secunderabad.

2. TheCourt of the XIX Additional Senior Civil Jucl;el Qity Civil Court at Secunderabad.

3. Greater Hyderabad Municipal Corporation,-Represente rrj by its Additional Commissidner, Secunderabad Division, at Secunderabrd.

4. One CC to SRl. K VENUMADHAV, Advocate [OPUC] 5. Two CD Copies 1,g- pcsd/gh HIGH COURT DATED:21 10212025 ) I.,''. \ JUDGMENT SA.No.73 ot 2025 ---- ^'-::--_\-- -, I i:: :, rJ. , l. . _ :'\ \\ '.. .,,.1 lll4 SEP 20ffi ': DISMISSING THE SECOND APPEAL AT THE STAGE OF ADMISSION \x "\