THE HON’BLE MR JUSTICE R. KANTHA RAO S.A.No.399 of 2004 DATE: 28.01.2011 BETWEEN: P.Srisailam Reddy and others .. Appellants And P.Mallesh and another .. Respondents THE HON’BLE MR JUSTICE R. KANTHA RAO S.A.No.399 of 2004 JUDGMENT: This second appeal is filed against the judgment and decree dated 14.11.2003 passed in A.S.No.324 of 2002 by the Chief Judge, City Civil Court, Hyderabad reversing the judgment and decree dated 28.03.2002 passed in O.S.No.1019 of 1999 by the II Junior Civil Judge, City Civil Court, Hyderabad. I have heard the learned counsel appearing for the appellant/defendant No.1 and the learned counsel appearing for the first respondent/plaintiff. The first defendant is the appellant. The first respondent filed O.S.No.1019 of 1999 for perpetual injunction restraining the appellant/1st defendant from putting up hanging balcony over 3 feet wide open to sky place between the house of the plaintiff bearing H.No.1-3-650 and that of the appellant/defendant No.1 bearing H.No.1-3-652 situated at Kawadiguda, Hyderabad. He also sought the relief of mandatory injunction in the said suit directing the defendant No.1 to remove the hanging balcony of the first defendant and subsequent floors which defendant No.1 may put up and incidental relief of directing the second respondent/Municipal Corporation of Hyderabad to take effective steps for implementation of the decree. The trial Court upon considering the evidence on record and with reference to the pleadings of both parties held that the first respondent/plaintiff is not entitled for any of the reliefs prayed for and dismissed the suit mainly on the ground that the plaintiff could not be able to establish his title to the property situated by the side of the appellant/defendant No.1. However, in the appeal, the learned first appellate Court reversed the findings of the trial Court and decreed the suit as prayed for by the first respondent/plaintiff granting both the reliefs. The learned first appellate Court took into consideration of the report of the advocate commissioner which discloses that there is 3 feet open space existing between both the houses since long time and the construction made by the first defendant i.e, the hanging balcony of 2’ width and 12’ length over the said 37 inches open space towards the house of the plaintiff. The learned first appellate court also took into consideration the admission of the appellant/defendant No.1 in the written statement to the effect that he was proceeding with the construction of balcony by maintaining 3’.3” set back from the plaintiff’s house and projected 2 ½ feet wide balcony over the said 3’3” wide open space. The first appellate Court laid stress on the point that the appellant’s claimed that he constructed the balcony according to the plan approved by the Municipal Corporation, but did not produce any such plan. Challenging the said judgment, the second appeal was filed before this Court and it was allowed by the learned single Judge. Aggrieved thereby, the plaintiff filed Civil Appeal No.2075 of 2007 before the Apex Court and the Apex Court having found that no substantial question of law has been framed by the learned single Judge, set aside the judgment and remitted the matter to this Court to formulate a substantial question of law, if any, involved and to proceed to decide the second appeal. The finding as to the fact by the first appellate court is final. Even though it is the result of reversing the judgment of the trial Court, this Court can interfere with the finding of the first appellate Court if it is perverse or contrary to the evidence on record or based on no evidence. In the instant case, the appellant/defendant No.1 admitted in the written statement that the first respondent/plaintiff is not the co-sharer of the property and he is one of the legal heirs left by the original owner of the property. But his contention was that without concurrence of the remaining sharers, the plaintiff cannot maintain the suit for perpetual or mandatory injunctions. However, since the right of the first respondent/plaintiff in the schedule property had never been in dispute seriously, the learned trial court did not frame any issue whether the plaintiff had any right in the house situated by the side of the appellant/defendant, yet proceeded to decide basing on the vague allegations mentioned in the written statement about the right of the plaintiff in the said house and the finding is without any material and it is not in fact necessary for determining the rights of the parties and to arrive at a just decision on the point in controversy. The learned trial court leaving the crucial issues viz. whether the appellant/defendant No.1 is entitled to make the disputed construction, the plaintiff has no adverse interest with the other co-sharers and maintain the suit against the defendants because it is for common benefit of the sharers of the building which is situate by the side of the defendant’s house. The learned first appellate Court had rightly arrived at a conclusion that the report of the advocate commissioner which discloses that there is 37 inches open space between house Nos.1-3-650 and 1-3-652, defendant No.1 constructed 2 feet wide balcony up to a length of 12 feet hanging over the said 37 inches open space i.e. towards the house of the plaintiff and there is 18 inches gap between the property of the plaintiff and the said balcony but refused the relief on erroneous view of the matter as stated above. The learned first appellate Court, therefore, basing on the report of the advocate commissioner and other evidence on record clearly held that the appellant/defendant No.1 had constructed balcony in the open space and the open space is meant for usage of both parties. The learned first appellate Court accepted the contention urged by the plaintiff that in view of the construction made by the appellant, the free air and ventilation has been affected. The above findings recorded by the learned first appellate Court are based on evidence and reasoning and it is not possible for this Court to hold that there is any perversity in those findings and the findings are of fact and in accordance with the evidence on record and based on reasoning. This Court while entertaining the second appeal under Section 100 of the Code of Civil Procedure, is not supposed to take a different view to disturb the said finding. Further, there is no substantial question of law arising for consideration in the second appeal. Challenge by the appellant/defendant No.1 to the judgment of the first appellate Court is only against the finding of fact and in the absence of substantial question of law, this Court will not entertain the second appeal. For the foregoing reasons, the second appeal fails and the same is dismissed. There shall be no order as to costs. ________________ Date: 28.01.2011 R. KANTHA RAO, J Kvrm THE HON’BLE MR JUSTICE R. KANTHA RAO S.A.No.399 of 2004 DATE: 28.01.2011