The High Court · 2025

Counsel for the Respondents : NONE The Court made the following : JUDGMENT HON'I}I,E SRI .]TISTICE LAXN{I NARAYANA AI,ISHE'TTY SECOND APPEAI- No.39l of 2024 .ITJIX]ME,N'I': This Second Appeal is filed challenging the judgment and dccrec. dated 0-1.06.2024, passcd by the Principal District Judge, Kanrareddy, in A.S.No.78 of 2022 whereunder and rvhereby thc judgrnent and decree, dated 16.08.2022, passed by th,.- Scnior Civil Judge , Karnarcddy, in O.S.No.66 of 20 I 5 r,vas confirmcd

2. The appellant hercin is plaintiff and respondents herein are defendants, belbrc the trial Court. Iror convenience, ltercinalter the parlies arc refcrred to as they are arrayed in the suit

3. The briel facts of the case as narrated in the plaint are that plaintiff filed the suit in O.S.No.66 of 2015, seeking perpetual injunction restraining the defendants liom interlcring with the peaceful possession and cnjoyment ol'the ptaintilf in respect of her two open plots bearing \os.22 and 23 lies in LP.No.331/8 I in Sy.No.23lAA admeasuring 7ll.l Stl.yards equivalent to 6l 1.5 Sq.mts situated at Ramareddy Road, Kamaredrly I'own (hereinafter referred to as 'schedule property'). Plaintiff is absolutc owner and possessor ! 1N,1, J SA.No.39l oJ2024 ol the schedule property by virtue of registered gift settlernent deed bearing Doc.No.56l5/2007 dated 1.2-10-2017, which was gifted by her husband Shaik Mahaboob Ali, since then plaintif'f has been enjoying the sull schedule properfy as absolute owner and with an intention to constnlct a residential building, she applied for permission to the defendant No.l and pcrmission was granted to construct first floor vide Proceedings No.Gl/136/MCK/103/2007-08 dated 0l -02-2008 and approved thc sanctioned plan. Acoordingly, the ptaintiff has stafted construction ol foundation as per thc approved plan and the said house was partly cornpletcd within 3 years. Later, defendant No.l has issucd notice to the plaintifl alleging that the plaintiff has constructed the house in deviation of the sanctioned plan by encroaching 40 t-eet width road. The defendant No.2 who is the Town Planning Oflicer fiequently visited the schedule properfy and demanded illegal gratification. Since, the plaintiff has not fult-rtled their demand, defendants threatened that they will dismantle the structures raised by the ptaintilL Flcncc, the present suit.

4. Defendant Nos.l & 2 jointly filed their written statement denying the allegations of the plaintiffl, the defendant submitted that the plaintiff is claiming ownership ol the suit schedule property by a------------- ::-aZ I // 1N,1, J SA.No.391 oI2024 virtue of registered gift settlemerrt decd bearing l)ocurnent No.56l5/2007 dated l2-10-2007 executed by her hLrsband Shaik Mahaboob Ali, and the said Shaik Mahaboob Ali executcd anothcr gift settlement deed in lavour Shaik Mubecn in respect of northern portion open plot No.23 in Sy.No.23lAA in LP.No.313/81 vide Doc.No.56l712007 and rectified vide deed bearing No.4E55/2015. On the same clay, thc husband of the plaintiff cxecuted a legistered gilt settlement deed bcaring Doc.No.56l 9/2007 in lavour ol' l)arvecn, who is daughter ol'Shaik Mahaboob Ali and the said docurrcnts rectit'ied vide rectification deed bearing Doc.No.4854/2015, in respect of the southern portion of thc open plot No.23 lies in Sy.Nrr.23lAA vidc LP.No.331/1981. 'fhc plaintill has made construction cncroaching 40 f'ect width lavout road. Alter cxecution of the registcreil gift decd in favour olthe children of the plaintiff, the plaintiff is not having any land in open plot No.23. Latcr, Smt. Shaik Mubeen and Sn.rt. Parveen, apgrlied for permission to the defendant No.l for rnaking construction in plot No.23 and the delendant No.l has grantecl construction permission vlde Proceeding No.Gl/106/BA1227l20l5 dated 26-06- 2015 and proceeding No.G1/103/11,4/22412015 datcd 26-06-2015 I I .l LNA, J SA.No.39l of2024 respcctively and they have constructed their respective houses in open plot No.23. It is further aven'ed that the permission lor construction is valid only lor 3 years frorn the date olthe orders i.e., 01.02.2008. The plaintiff commenced construction in the year 20 l5 after lapses of 3 years, therefore, the said construction is deemed to be unauthorized as the vatidity ol the pcrmission has lapsed by 3 I .01 .20 1 I . Therefore, the delendant No.l issued notices dated 06-10-2015 and 09-10-2015. 'lhe first notice was servccl upon thc plaintilf on 09-10-2015 and final notice was also issued to thc plaintilland since they rcfused to receive the same, the said notice was affixed at the construction premises of the plaintifL Hence, prayed to dismiss the suit

5. On the basis ol'the above pleadings of both the parties, the trial Court framcd the following issucs for trial:- " 1) Whether the plaintiff is in peaceful possession of the suit schedule land as on the date offiling oJ this suit? 2) Whether the plaintiff possession is intcrJered by the defendants? 3) Wether the plaintiff is enritled for perpetual injunction as prayed for? 4) To what relief ? " 5 LL'.4. J SA.No.39l of 2t)24 Additional Issue No.l : "Ilhelher lhis Court is hating pecuniary Jurisdiction lo entanein the Suit ? "

6. During the coul'se of thc Trait, plaintilf was exanrincd as PW.1 and Exs.A I to 4,6 were rnarked. Town Planning ()flficcr was examincd as DW.l and Ex.B I to Ex.BS were ffiarkr'd. Advocate Commissiotret u'as examined as CW.l and Ex.C I ti, E,x.C.I were marked.

7. After full-fledged trial and upon considering thc oral and documcntary cvidence and the contentions of both the pafties, thc trial Court, vide .judgrnent and decree dated 16.08.2022, disnrisscd the suit.

8. 'l'he trial Court while disrnissing the suit categori(ally observcd as hereurr<lcr: - " 17. The plaiilif while deposing as PWI she denied durittg the cross exa,ninatiott thal her husband has gifted the property to ht,r doughtar-s in lhe parl of the suit schedule property i.e., plot No.22 ,l 13. later, the plaintilf hos admitted that her husband has gifted the yoperty to her daughter in part of plot No.23. The above said admitsion oJ the plaintiff during the cross examination itsel,f is made crystol clear that the husband qf the plaintiff has alienated plot No.23 in.{urour of his nvo children through Ex.B5 and 87 gift deeds and lhe plaintiff is nor in posses.sion ofthe entire suit schedule property i.e., plot ,\o.22 & 23. 6 LNA, J SA.No.391 of2024

19. As seen the evidence of PW2 it is clear that he hus deposed what he wont to depose, without having knou,ledge about the facts of this case. PII/2 has mentioned the plot nunber, sttrvey number and layout plan number and Ioct notices issued by the ltlunicipal Council, Kamareddy and details of the permissiott in his chie.f .examination, but coming to lhe cross exominalion, he has expressed complele ignorance about the above said facts. The plaintif has examined PW2 to prove that the defendanl has. inter-fering v,ith the possession of the plaintiff. but PW2 in his cross examinotion ht has completely expressed igrnrance about the facts qf this ca-se. 20. A perusal of the documentary evitlence of the plaintiff and defendant and oral evidence of rhe plainri.ff it is cleur thot the plointiff has lost her possession in respect of the open plol no.23 wuv back in the year 2007, afler execution of the Ex.85 & Ex.87 register gi/i deed by her husband, therefore, it can be hold that the plaintifl is in not possession of lhe entire suit schedule properv as on the date offling of the suit, therefore, there is no que.ttion of interference by the defendants. "

9. Aggrieved by the dismissal ol the suit, plaintifls prelerred appeal vide A.S.No.78 of 2022, and the lirst Appellate Cor,rrt, being the final fact-finding Court, re-apprecialed the entire evidence and material available on record and dismissed the Appeal, vide judgment dated 03.06.2024,thereby, confirming the judgment of the trial Court.

10. The first Appellate Court in its judgment observed as hereunder:- 7 LNA, J S.1.No.j9l of 2021 "25. DWI is the Town Planning Supervisor working in lvhtnicipaliy' of Kanareddy. ln cro.ss-examination DWI asserted that a.lier issuing notice.\ to plaintiff encroachment of road portion conlruvning thc master Jtlan v,a.s demolished. He also depo.sed that the slul' portion, x,ltich x'as constntcted by encroaching the road, yua.s dantoli.rhed DWI <ctukl nol state the date of demolition as he was nol wrking in Municipalitt'ttt that lime. DIlt I also deposed that lhal there ..las 100%, deviation .fron the sanclioned plan on all sides. DWI alxt deposed lhdl the neasurements of deviation were nentioned in noti(( issued to plainti[f. Dl['l denied the suggestion thdt there was nnly 20'% devialion but not 100?6. DWI no doubt deposed in cross-L'\aminatiett that the Municipalily would regularize the deviation if ary application is nole but in the very next sentence DIll deposed thul in this case plaintiff nrude construction by encroaching into road bounda4, againsl master plan which cannot be regularized. 'fhough DIll deposed thol nruster plon wos not fled later it was filed und marked os bt.C2 through CW) (ln the Appendix of Evidence ol Judgment mtder appeal Ex.C2 is menlioned as lfarranl of Commissioner hy over.tighl). DWI also deposed that there is drainage ancl no road wus found. Even according lo PWI and plainl schedule on vuthern side lhere i.s proposed roacl with drainage. Evidence of DWI , v'ho is ttn indepe r16lsn1 employee in Municipol Council, Kamareddl,. L,stablishes that with 100%t deviations by encroaching into road/drainage portion of s<tuthcrn side Plll made construction and the said portion of encroachment of road vas demolished- It is also evident -froms the cvidttnce o-f DWI that the other portions of illegal (onstruction remaincd as it is. 26. There is the evidence of ClI4 also who is the Advocule Commissioner. Ex.Cl is the report of CWl, Ex.C2 is the .llaslcr Plan, Ex.C3 consists ()f notices issued to both parties and Ex.C4 is the 8 LNA, J SA.No.39l of 2A21 layout plan and photographs y,ith CD. CWI deposed that he has made local inspection of suit house and mentioncd in detuil his observations in Ex.C l. Exislence of Ramaredcly Road with 50.lbet und proposed 10 feel on southern side were menlioned in Ex.Cl. Cl4'l deposed that plaintif/ constructed 6 mulgies, 4 mulgies were r.;iisting as on the date of his visit and 2 mulgies were demolished by Municipal Authorilies. CII/I was cross-examined dl length by plaintifl Prlll did not even dispute the oppoinlment of CWI as Adt ocate Commi.ssioner. Though there is no exislence of 40 feet road on southcrn side lhere is drainage, v,hich is deposed by CWl. Et'en according to the plaint schedule, lhe southern boundary is proposed 40 fcet rcod arul covered into drainage. Though CWI has not recorclecl the meosurements of 2 mulgics il is nol fatal lo the case of defendants. Cllll deposed obout measuremenls of each mulgie in his cross-examiru ion. Debris of demolished construclion were also notetl by CW t in Ex.C t . Merely because CWI had nol laken the assistance of skilled persorl to take measuremenls of drainage his evirlence cannol be discarded because he is an Advocate Commissioner. The map and photographs, Jbrming part of Ex.C4, also re.flected the encroachment made by plaintifl over proposed road/drainage on southern side of suit housc. Evidence of CWI is amply corroborated to the evidence of D[4/l and the stand of defendants taken in their written statement.

27. ll'hen there is illegal conslruction or encroachmanl of public road or drainage it is the duty of defendants to take appropriole aclion, otherwise illegal construclions and encroachment o.f drainage/road would continue. I{hen drainage portion is encroached there v'ill be lot of difficulty during rainy season for free Jlor, ,rf vater etc. in drainage resulting in lot of inconvenience to the public of Kanareddy Town at large. Therefore, defendants cannot be found fault for demolition of illegal encroachment and illegal constuction nade by g LN,4,,I S.l.No 391 of 2D! plaintiff l4'hen there is illegal construction by encroathment of drainagehttad plaintif cannot seek perpetual injunction by .filing .suit. Flven v,hen series o.[ notices were issued by defendants b ptlointif as in Er..{||llxs.Bl to Er.84 she did not volunlarily renove the encroachments/illagal constructions dnd the Munic-ipal Authorities had to de moli.sh thent. "

10.i. l'he First;\ppellate Court has further observed as hereundcr:- " ...long prior to the dale offiling qf suit 355.4 Square yords covere<l bv Plot No.2-l u,tts already gifted by husband of plaintilf in.favour of his childrcn and the question of plai,ztif being in posse.s.sor of said exlenl of plot, ./brming part of suil house, does not urise. 81, suppressing molerial .facls about lhe gift settlement deeds t,xe cuted b.t, her husband in ;fawur oJ her children plainliff filed applitutirm before Municipa/ (.-ouncil, Kamareddy and obtained construc!ion permission u.nder Ex.A2. Plointiff did not commence construclion tvithin lhe slipuloted rine nentioned in Ex.A2 and afer expiry o.[ stipulated period slrc has commenced conslruction. Evidence on record also establisht:s that deviating from Ex.A3 approved plan plainli.// made illegul construction and went to the exlent of encnuching the drainoge ,/prcposed road on the southern side of the suit house. [n these cir(ufttsldttces, court is of the considered opinion thul plaintiff is not entilk,d lor perpetual injunction as prayedfor..." I l. tleard Sri V. Vcnkata Mayur, learned counsel lirr the appcllant. Perused the ,:ntirc material available on record. I l. Leanrcd counsel for the appellant contended thal the trial Court as well as first appellate Court failed to appreciate oral and IO I-NA, J SA.No.39l of2024 docun,entary evidence placed on record in propcr perspective, and erroncously dismissed the suit on perverse findings. Learned counsel Ibr the appellant further contended that both the Courts havr: come to an erroneous conclusion that ptaintifl was not in possession of the schcdule property, despite placing sufficient oral and documentary eviclence on record. Learned counsel lurther contended that both thc Courts have not propcrly considered the reporl of the Advocatc Commissioncr, who inspected the schedLrle property and that Court canle to a conclusion that no prcjudicc u,ill be caused to thc plaintifl, il'the suit is dccided by the Senior Civil Judge, Kamareddy, though hc did not have pecuniary jurisdiction to decide thc suit. 'l'hercforc. appeal deserves to be allowed and impugned judgment is liable to bc set aside.

13. A perusal of record would disclose that the trial Courl as well as lirst Appellate Court concurently held that appellant has obtained permission in the year 2008 and commenced construction in the year 2015, therefore,, construction is unauthorized and the same was done aftel expiry of the permission period i.e., 3 years. Both the Courts concurrently held that husband of plaintiff already alienated entire E-----------aaa- 1,N,1, J 5.4.No.391 of2021 extent of Plot No.23 to the children of plaintiff, way back in the ycar 2007 and thus, plaintilf r.r,as not in possession of the schedule property as on thc diLte ol filing ol the suit. Furlher, F-irst Appellatc Couft categorically hcld that plaintilf made construction encroaching 40 feet wicle road, thercfore, respondent No.1 was justified in taking action a,uainst plaintiff' for rnaking construction in 100?1, deviation of sanctioncd plan on all sidcs.

14. In consiclercd view of this Cour1, the learled counsel fbr appellant lailcd to raise any substantial question ol'larv to be dccided by this (iourt in this Second Appeal. In fact, all the grounds raised in this appcal arc lactual in nature and do not qualiry as the substantial clucstions ol' las in terms ol Scction 100 C.P.C.

15. [t is rvell settled principle by a catena of decisions of the \ Flon'blc Apex Court that in the Second Appeal hled under Section 100 C.P.C . this Clourt cannot interfere with the lindings on facts arrived at by the first Appellate Court, which are based on proper appreciation of thc oral and documentary evidence on record. t2 I,NA, J SA.No.39l of2024 I I I

16. Further, rn Gurdev Kaur v. Kakit, the Apex Court hekl that the tligh 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 and it can be exercised only where a substantial question of law is raised and falls for consideration.

17. I{aving considered the entire material available on record and the findings recorded by the first Appellate Court, this Court finds no ground or reason warranting interference with the said findings, undcr Section 100 C.P.C. Moreover, the grounds raised by the appcllant are lactual in nature and no question of law, much less a substantial cluestion of law arises, for consideration in this Second Appcal.

18. Hence, the Second Appeal fails and the same is accordingly dismisscd at the stage of admission. No costs. Pcnding miscellaneous applications, il any, shall stand closed. //TRUE COPY// SD/- A.V.S. PRASAD EPUTY REGISTRA CTION OFFICER To, 1- The Court of 2 ThelQeullqf ' (2007) Eupreme Court Cases 546 the Principal District Judge,Kamared the Serrior Civil Judge, Kamareddy v I ? ,

3. The Municipal Comrlissioner, Kamareddy, O/o. The Municipal Council, Kamareddy Town and District (Erstwhile Nizamabad District).

4. Town Planning Officer, O/o, The Municipal Council, Kamareddy Town and District (Erstrr.rhile Nizamabad District). /

5. One CC to SRI V VENKATA MAYUR ,Advocate [OPUC] 6. Two CD Copies I']csd/gh P HIGH COUR]I DATED:3010412025 I JUDGMENT SA.No.391 of 2024 ,a:' ,''t ..o'' :- ;41 ,:. 04 t{[v \,'& * PAT DISMISSING TI.IE SECOND APPEAL AT THE STAGE OF ADMISSION q .h