The High Court · 2025

HoN'BLE sRI.ruSTICE LAxMI NARAYANA ALISHETTY SECOND APPEAL No.106 of2024 JUDGMENT: This Second Appeal is filed challenging the judgment and decree, dated 14.06.2023, passed by the XXVII Additional Chief Judge, City Civil Court, at Secunderabad, in A.S.No.22 of 2020 whereunder and whereby the judgment and decree, dated 3l .12.2019, passed by the XI Junior Civil .Iudge, City Civil Cour1, at Secunderabad, in O.S.No.l05 of 2013 was confirmed.

2. The appellants herein are plaintiffs and respondents herein are defendants, before the trial Court. For conveniencc, hereinafter the parties are referred to as they are arraycd in the suit.

3. The brief facts of the case as narrated in the plaint are that plaintiffs filed the suit in O.S.No. 105 of 2013, seeking perpetual injunction. In the plaint is averred that the plaintiffs are owners of F'tat No.002, stilt ground floor, with undivided share of the land admeasuring 20 Sq.yds of 16.72 Sq.mts out of 532 Sq.yds along with built up area of950 sft, house bearing No.3-1-69, known as Sree Baba i l 2 LNA, J SA.No.106 of 2024 Aashirwada Sadan, situated at Mandabad B rsti, Lothkunta, Secunderabad Cantonment (hereinafter, referrcd tc as 'schedulc A propefty') and Ftat No.001, stilt ground floor, with trndivided share ol the land admeasuring 22 Sq.yds of 18.39 Sq.mts oLrt of 532 Sq.yds atong with built up area of 1260 sft, house bearing No.3-19-69, known as Sree Baba Aashirwada Sadan, situated at Mandabad Basti, Lothkunta, Secunderabad Cantonment (hereinaftcr. t'efered to as 'schedule B propcrty') having purchased the sanrt' irt open auction conducted by the Bank of India, Vasavi Nagar Branc h, Secunderabad, vide sale certificatc, dated 10.10.2012 under the Securitization and Reconstruction of Financial assets and Enforcentent of Scctrrity Interest .Act 2002; that the builder constructed cornplex by duly obtaining pernrission from Secunderabad ca ltonment datcd

30.07.1999, q,hich included 20 flats in upper floor and two flals in ground lloor; that on 24.10.2012, plaintiffs starlctl cleaning and repairing lhe walls for whitewash defendant l'1o.4 along with del-endant Nos. I to 3 trespassed into plaintiffs prol)erty without any aulhority, stopped the work and threatened them th rt the property is meant for parking and the same will be demolished: that the plaintiff ,,/ ,,,., 3 LNA, J SA No.l06 o12024 a reported the matter to Trimulghery Polioe Station and the policc did not take any action and again on 13.02.2013, defendants once again trespassed into the schedule prope(y and forcefully locked and sealed the said property; that the ptaintift's approached Trimulghery Police Station once again and the police directed defendants to remove locks and seal; that the defendants are threatening the ptaintiffs and interfering with the possession and enjoyment of the schedule A & B properties. I{ence, the suit.

4. Defendant No.l fited written statement, (which was adopted by defendant Nos.2 and 3), denying the allegation made in the plaint, that the ptaintiffs approached the Court by suppressing thc material facts and further averred that lather of ptaintiff No.l acted as President of association and having knowledge about the illegal structures in the cellar portion and dcfendants also tnade eflorts to remove the said structures during his tenure as a president of the association; that the plaintiffs have filed present suit with false allegation and at no point of tirne physical possession was delivered to the plaintiffs either by the bank or by the builder' Therefore, suit filed l 4 -i LNA, J SA No.l06 of 202 4 by the plaintifls is devoid of merits and liable to bc dismissed. It is furlher averred that defendant No. l /Association wi s lbrrned for the welfare olthe occupants of the complex and the sanre was registered. Defendant No.l and other owners made representa:ion to defendant No.4 that illegal construction is existing in the cellar portion which are against sanctioncd plan and therefore, requested for rction; that father of the plrintill No.1 was removed as President of association for his illcgal activities ,vrde meeting datcd 12.10.2012, thrrt latcr defendant No.1, filed writ petition No.4952 of 2013, seeking direction to declare the inaction ol the defendant No.4 in pursuance to thc representation submittecl by the association as illegal and arbitrary and the said writ petition was disposed of on 19.12.2013; that pursuarrt to thc direction of the Court. defendant No.4, issued notice unde Section 249 of t Cantonment Act, 2006, and served the same to the p aintill'Nos.1 and 2 and by suppressing the above facts, plaintiffs filet thc ;;resent suit Hence, playcd to dismiss the suit.

5. Delendant No.4 filed written statement, deny,ng the allegation made in thc plaint and contended that the suit is not maintainablc and that there is spccific bar undcr Section 250 of Canto rnrent Act, 2006, ,,.,, ,,/ " 5 LNA J SA.No.l06 of2024 and that there is remedy to hle appeal under Section 340 of Cantonment Act against the notice, therefore, suit is liable to be rejected; that the respondent No.4 issued notice on 17. 12.2013 under Section 213 of Cantonment Act, to stop unauthorized constructions of shops in stilt floor which is meant for parking only, failing which, further action witl be initiated; that the ptaintiff submittcd an explanation on 28.12.2012, however, they failed to file appeal; that defendant No.4 received some lnore complaints dated I I .0 I .2013 and

13.02.2013 from defendant No.l, requesting demolition of unauthorized construction and accordingly, notice dated 06.02.2013 was issued under Scction 239 of Cantorunent Act, 2006, to seal tl-re premises within a period of three days lrom the date ol issue of notice and the said notice was received by the plaintiffs on 25.02.2013;that the defendant No.4, issued another notice ou 18.02.2013, under Section 248 ( I ) of the Cantonment Act, but, the plaintills lailcd to comply the said notice and the Association - defendant No. I filed a writ petition.

6. On the basis of the above pleadings of both the parties, the trial Court framed the following issues for trial:- t_-t t 6 LNA, J SA.No.106 of2024 " ( 1) Wltclher the plaintffi are in possession and e tioyment of the strit properties? (2) ltlhcrher defendants interfered v,ith plaintiffs l.ossesston? (3) Il/lerlrcr the plaintilfs are entitled for perpetuol in jt.,nt tion'? (4) 'lit vhat relief? "

6. l)uring the course of the trial, on behalf of th: plaintiffls, pW.I and P\\/.2, u,ere examined and Exs.Al to A10 \vcre llarked. On behalf of thc defendants, DW. I was examined and llx.Bl ro Bl l were rnarked.

7. Afi.er lull-fledged trial and upon consideri re the oral and documenrarv cvidence and the contentions of both th: I)artics, the trial Corrrt dismisscd the suit, vde judgment and decree di tcd 31. l2.2olg.

8. 'lhe trial Court categorically observed as hereu tder:- " 23. ()ottverse to the aboye admission of Pll/2, DLI'I vho is co-on ncr admitted in his cross examination u,hi .h reo,ls as follov.s "lt is true that before purchasing the s tit schedule properq, I veri,fied all the revenue records inchtd,ng sanction platt. I did not file sanction permtssion issued b.. Defendant No.l in resg:;ect of the suit schedule property. Frotn the above contrudiclorl, stotements made by PWI & PIf2 it ,s clear rhat their t'vidt:nce is marred wilh inherit contradictiorr. l{owever, :'n# (-' 7 LNA, J SA.No.l06 of202,l according to contract of sale, it is bounden duly on the part of lhe purchaser to verify the tille and all the credentials of the property which is under sale. It is a settled position of law that a person who is diligent and conscious aboul his rights will be protected by law and the petson who is indolent and sleeping upon his own rights cannot be rescued by law. In the present case in hand the plaintffi ought to have verified the sanclion permission for construction o/ the structures in the suit scherlule property prior lo their purchase in lhe auction sale' As such, I am unable to agree with the contention of the ptaintilfs that the propriety the existence of struclures over the suit schedule property cannot be queslioned by anyone' much less Defendant No. I to 3 and plaintilfs have approached this court without bonafides. The statutory action initiated by Defendant No.4 agaittst the alleged unauthorized construction in the stilt floot', (which is meant for parking of the whicles) b), issuing norices including the notices of demolition cannot be termed as unwartated and highhanded. So much as, admitredly, no appeal is prefeted by the plaintiffs against the stotutory aclion initiated by Defendant No 4' '[lrcrefore, Defendant No.4 is undoubtedly is entitled to proceedfurther in accordance with the law. Therefore, I am inclined to hold that the plaintiffs have approached this court with unclean handv' As such they are not entitled for the relief o/ injunclion front the court of equitY " ) 8 I,NA, ,I S.4.No 106 of2021

9. Aggrieved by the judgment dated 31.12.2"119, the ptaintiff prelerred appeal vide A.S.No.22 of 2020 and tlre first Appellate Court, being the final facf finding Courl, re-appr rciated the entire evidcnce and material available on record and disrr issed the Appeal, vide its judgnrcnt dated 14.06.2023, thereby, confirning the judgment of the trial Clorrrt.

10. l'trc llrst Appellate Coun in its judgm.'n( observed as hereundc:r:- " ... it i.s ctl,slal clear that the plaintffi have suppre tt'tl the very issu,znce of notices by the Cantonment Board u'rder Ex.82, Ex.Il3 and Ex.B5 in the plaint pleadings and also in their chief etarninalictn, \uhich amounts lo suppression of m erial facts and cleut ll, probablizes that lha plaintffi had apl rttoched the Courl with unclean hands which itself disentitles hc plaintffi for ilr tquitable relief of injunction and on this ;;round also, the pluintilf s claim fails... ... On perusal qf Et.Bl/Sanction plan, it i.s clear 'hot tlrc stilt Jloor i.s rteant for parking of vehicles only. The v( O existence of the.fiats No. I and 2 i.e. plaint 'A' and 'B' sclrcdttc Jlats in the said .st t .floor clectrly goes to establish that thet ttre illegal stntchr(s raised in the parking area which are tr ttrely meant ,^foy parkitry ofvehicles, and is controry to the san( tioned plan. In lhosa circumstances, defendants No.l to .i, who are 9 I,NA, J SA.No t06 of 2024 o representing the Apartment Complex as President, Secretary and Vice President has brought to the notice of the Defendant No.4/Cantonment Board for removal of the said illegal structures so os to safeguard the parking area and the satne is evident from series of complaints made by the Def|ndants No l to 3 i.e. Ex.86, Ex.88 and Ex.89 respectively. "

10.1. The First Appcllate Court has further observed as hereunder:- "Thus the ploint schedule flat being constructed in the stilt lonr i.e. cellar portion, which is meont for parking areo are illegaL constructions and the Cantonment Board has already iniliate(l statutory action as per law, which cannot be averted by the relief of injunction when once the said notices issued by the Cantonment Board are not challenged and not declared as illegal by any competent Court of law. " I 1. Heard Sri C.A.R. Sheshagiri Rao, learned counsel lor the appellants and Sri Thumu Chandra Shekar, leamed counsel for the respondcnts. Perused the entire matcrial available on rccord'

12. Leamed counsel for the appettant contended that the trial Court as well as first appellate Court committed grave error in dismissing the suit without appreciating the oral and documentary evidence placed in record, particularly the fact that the petitioners purchased suit flats is an auction conducted by the bank. Leamed counsel further .l I i 'l I I i I 4 l0 LNA, J SA.No 106 of2021 contended that petitioncrs arc bonafide purchasers rf'suit flats in an (1,r auction condur:ted by thc bank which implies that bank has sanctioned loan after due scrutiny of documents and approvet plan. Therefore, action oli respondent No.4, in locking and sealinl. the premises is illegal and unsustainable. Leamed counsel furthcr contended that petitioners filecl W.P.No.173'79 of 2018 against the action of respondent No.4 and the same is pending before tltrs Ootrrt and thus, prayed to allow the appeal

13. A perusal of record would disclose that plairrtilf filed the suit for perpetual iniunction restraining the respondent: liom interfering the with the possession ol the plaintiff in respect of :;uit schedule A & B properties, which arc lockcd and sealed by thc Icspondent No.4. Aggrieved by the samc, appellant filed writ petition and the said writ petition is pcnding for adjudication. Trial Court as rvcll as appellate Court concurrently held that respondent No.4 has nitiated statutory action against the allegcd r.rn-authorized construction by following due process and petitioners have not produced sanctiorr plan belore the Court. Iloth the Courts categorically held that plaintiffs have approached the Court with unclean hands. The firs appellate Court, LN), J SA.No.l06 of2024 while dismissing the suit, specihcally held that "he who seeks equity must rule equity".It is relevant to note that Respondent No.4, issued notice to the ptaintilfs for demolition of the suit flats, which means that petitioners are not in possession of the same and therefore, suit for perpetual injunction is not maintainable, as such, no relief can be granted to the petitioners.

14. In considered view of this Court, the leamed counsel for 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

15. It is well senled principle by a catena of decisions of the Hon'ble Apex Court that in the Second Appeal filed under Section 100 C.P.C., this Courl cannot interfere with the findings on facts t arrived at by the first Appellate Court, which are based on proper appreciation of the ora[ and documentary evidence on record , t -T ! ':. : l l { I { ! I I t I t2 LNA, J SA No.l06 of202,l

16. Frrrlher, in Gurdev Kaur v, Kakit, the Apex tlourt held that the ts) High Courl sitting in Second Appeal cannot exanine the evidence once again as a third trial Courl and the power r nder Section 100 C.P.C. is very limited and it can be exercised only r here a substantial question of law is raised and falls for "orria".utio,r.

17. Having considered the entire material availalrlc on record and the findings recorded by the first Appeltate Courl, tiris Court finds no ground or reason warranting interlerence with the said findings, under Section 100 C.l'}.C. Moreover, the grounds raised bv the appeltant are factual in nature and no question of law, much css a substantial question of lau, arises, lor consideration in this Secor d Appeal.

18. Hence, the Second Appeal fails and the sanre is accordingly dismissed at the stage oladmission. No costs. Pending rniscellaneous applications, if any, shi ll stand closed. 'Grol) L Euprer" C-ourL (oses 51e i \ To, //TRUE COPY// sd/- P. H, NAGABHUSHAMBA TIEPUTY REGISTRAR S N OFFICER 1 The Court of the XXVII Additional Chief Judge, Secunderabad. it,t Civil Court at

2. Xl Junior Civil Judge, City Civil Court at Secunderabad' 3. One CC to SRI AJAY KUIMAR MADISETTY, Advocate [OPUC] 4. One CC to SRI THUMU CHANDRASEKHAR, Advocate [OPUC] ' 5. Two CD CoPies Pcsd/PSL t I I I HIGH COURT DATED:3010412025 JUDGMENT SA.No.106 of 2024 R( t. .a_ \i i:, ,,S:i; 1 r.. 1z \_* ^ \, 5 riEP 2025 DISMISSING THE SECOND APPEAL AT THE STAGE F ADMISSION 61t8 I I t i i f i ] i i I I I I