THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR SECOND APPEAL No.734 of 2008 Dated:- 19th April, 2011 Between:- Patleti Shravan Kumar …Appellant AND The Commissioner, Municipal Corporation Of Hyderabad, Hyderabad and others …Respondents THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR SECOND APPEAL No.734 of 2008 JUDGMENT:- This appeal is directed against the judgment and decree 22.01.2007 passed in A.S.No.600 of 2005 by the III Additional Chief Judge, City Civil Court, Hyderabad (‘lower appellate Court’, for brevity). 2. The petitioner herein is the plaintiff and the respondents herein are the defendants in the Original Suit being O.S.No.1909 of 1999 on the file of the IV Junior Civil Judge, City Civil Court, Hyderabad (‘trial Court’, for brevity). For the sake of convenience, the parties will be referred to as they were arrayed in the Original Suit. 3. The plaintiff – Palteti Shravan Kumar, filed O.S.No.1909 of 1999 before the trial Court seeking a mandatory injunction directing defendant No.1 – K.Laxmaiah to remove the construction made by him in the open land on the Southern side of his house bearing municipal number 7-2-1271/1/28, Shivajinagar, Sanathnagar, Hyderabad, and also for perpetual injunction restraining the defendants from making any construction on the southern side of his house and the said suit was decreed as prayed for. Aggrieved by the same, defendant No.1 preferred appeal before the lower appellate Court in A.S.No.600 of 2005 and the said appeal was allowed by setting aside the judgment and the decree of the trial Court, which is impugned by the plaintiff in this Second Appeal. Thus, 30 square yards of land on which the defendant constructed an asbestos roof shed will be hereinafter referred to as the disputed area, for the sake of convenience. 4. The plaintiff’s case, in brief, is as follows:- The Municipal Corporation of Hyderabad (‘MCH’, for brevity), who is the owner of the land, prepared a layout in Shivajinagar, Sanathnagar, Hyderabad, and sold away the plots to several people. At the time of preparing the layout, MCH has left open some land for each plot of the said colony. Similarly, MCH has left open some land on the southern side of the house of the plaintiff and it is disputed area in this case. From MCH, one K.Narsaiah purchased Plot No.20 through a registered sale deed vide document No.1751 of 1979, who constructed the house bearing municipal number 7-2-1271/1/28 in an area about 64 square yards therein. From K.Narsaiah, the said house was purchased by one B.Basappa, who in turn sold the same to the vendor of the plaintiff – G.Anjamma under a registered sale deed bearing No.1800/94 dated 01.07.1994 and the plaintiff purchased the said house from G.Anjamma under a registered sale deed bearing No.264 of 1999, dated 23.02.1999. 5. The case of the plaintiff is that the first defendant recently constructed a shed with asbestos sheets in 30 square yards of area left open by MCH on the southern side of his house i.e., in the disputed area. The further case of the plaintiff is that the shed constructed by the first defendant is obstructing free flow of the fresh air and light to his house and causing inconvenience to him and that the said construction closed the windows of his house. It is also his case that he got issued a legal notice to the first defendant on 16.03.1999 and in spite of service of notice, there was no reply from the first defendant and that in the said Legal Notice, due to typographical error, the address of the first defendant was mentioned as adjacent to house number 7-2-1271/1/28/A in stead of house number 7-2-1271/1/28 and that he again got issued another notice by correcting the house number, but defendant No.1 refused to receive the same and that the disputed area on the southern side of his house is contiguous part of his house and that it is left open for their use by his vendors. Alleging that defendants 2 to 4 i.e., the MCH, in spite of his complaint, has not taken any action, the plaintiff filed the Original Suit before the trial Court seeking mandatory and perpetual injunction as mentioned supra. 6. The first defendant filed a written statement and denied the material averments made by the plaintiff. It is specifically denied that MCH has left disputed area as open land on the southern side of the house of the plaintiff and that he had recently encroached the same and constructed a shed with asbestos sheets. It is also denied that the construction made by him is affecting the free flow of air and light to the house of the plaintiff. It is also denied that the disputed area is contiguous part of the plaintiff’s house and that it was left open for the use of the owner of the house purchased by the plaintiff. 7. The specific case of the first defendant is that he has been residing in the disputed area admeasuring 32 square yards by constructing a house bearing municipal number 7-2-1271/1/28/A since the year 1984. It is also his case that in those days, Shivajinagar area was notified as Slum area and that he was issued Slum Certificate on 27.02.1990. It is also his case that he got electricity connection, water connection and has been paying municipal taxes regularly. 8. On behalf of the plaintiff, the plaintiff himself was examined as P.W.1 and Exs.A.1 to A.18 were marked. On behalf of the defendants, the first defendant himself was examined as D.W.1 and D.Ws.2 to 6 were examined and Exs.B.1 to B.3 were marked. 9. The trial Court, holding that the first defendant did not obtain any permission from the MCH for his construction and that the said construction is an illegal construction and that the first defendant has not filed any document to show that the disputed area was declared as Slum area, decreed the suit of the plaintiff, as prayed for. 10. On appeal by defendant No.1, the lower appellate Court allowed the appeal by reversing the judgment of the trial Court, mainly on the ground that the plaintiff has taken inconsistent pleas as to who has left open the disputed area on the southern side of his house and that the plaintiff ought to have claimed the relief of recovery of possession. It was also held that the contention of the plaintiff that the first defendant recently constructed a shed in the disputed area is not supported by any documentary evidence and that the corrections in Ex.A.7 are not explained. The lower appellate Court also held that the first defendant seems to be in possession of the disputed area even before the plaintiff purchased his house. 11. Sri V.Ravi Kiran Rao, learned counsel for the appellant/plaintiff submitted that the first defendant had encroached the open land on the southern side of the house of the plaintiff and that the first defendant has admitted in his cross-examination that he has not purchased the disputed area from MCH or from any third party and thus, it is clear that the first defendant is an encroacher. It is also his submission that the first defendant originally claimed that the open area belonged to a temple and that the elders of the temple permitted him to reside therein, but admittedly, he has not filed any document to substantiate his contention. It is also his submission that the documents filed by the plaintiff would to go show that the area is not a Slum area and, therefore, the first defendant’s contention that he was issued Slum Certificate has no legs to stand and that when the window of the plaintiff is closed, it is clear that his right to air and light are effected. His main submission is that the first defendant himself had admitted that his construction closed the window of the plaintiff’s house and that the trial court, having considered the entire oral and documentary evidence on record, rightly decreed the suit, but the lower appellate Court has wrongly reversed the findings of the trial Court. 12. Per contra, Sri T.Narayana, learned counsel for the respondents, has taken me through the entire record and submitted that the trial Court, for valid reasons, did not rely on Exs.A.17 and A.18 and, therefore, the contention of the plaintiff that there is record to show that the disputed area is not the Slum area is incorrect. He has also referred to the documents filed by the first defendant and submitted that the first defendant had adduced evidence to show that he has been residing in his house since 1990 having taken electricity connection and water connection from the concerned authorities and, therefore, even on the date of purchase of the house by the plaintiff, the first defendant’s house was there. It is also his submission that the first defendant has filed S.A.M.P.No.3143 of 2010 in this second appeal to file additional documents, which would go to show that he was allotted house site and issued the Patta of house plot on 09.06.2010 and thus, the said document clinchingly establish the title of the first defendant over his house and that the lower appellate Court has rightly set aside the judgment and decree of the trial Court and that there are no grounds to interfere with the same in this appeal. 13. In view of the rival submissions, the only point that arises for consideration in this appeal is the lower appellate Court is justified in reversing the judgment of the trial Court and whether the first defendant has made any construction affecting the easementary rights of the plaintiff, as formulated in Question No.11 of the memo of appeal. 14. It has to be seen that the plaintiff, in para 5 of his plaint, had averred that at the time of sanctioning the layout, the MCH has left open some open land on southern side of his house. Though the plaintiff has referred his house as suit schedule property, but in fact, the disputed area is southern side of his house in which the defendant has constructed a shed with asbestos sheets bearing municipal No.7-2-1271/1/28/A. In para No.7 of his plaint, the plaintiff had mentioned that the open land on the southern side of his house is contiguous part of his house which he refers as suit schedule property and it is left open for the use of the house owner of his house bearing municipal No. 7-2-1271/1/28 by his predecessors in title prior to the purchase of the said house by the plaintiff. Thus, his case is that his predecessors in title were enjoying the same and that the first defendant has encroached the said open land and constructed a shed with asbestos sheets recently. In the cause of action column of his plaint, the plaintiff has mentioned that the first defendant had illegally laid the shed with asbestos sheets in the open land in the southern side of his house in the first week of March, 1999. The first defendant’s case is that he has been residing there by constructing house bearing municipal number 7-2-1271/1/28/A in an area admeasuring 32 square yards since the year 1990 and that he was issued Slum Certificate on 27.02.1990. It is also his case that he got electricity connection, water connection and paying municipal taxes regularly. 15. Though the plaintiff claimed that MCH has left open some area on the southern side of the suit schedule property, admittedly, he has not filed any layout in support of his contention. He has also admitted that there are other slum areas adjacent to the house of the first defendant. When the plaintiff was asked whether the first defendant was having electricity connection, he deposed that he does not know whether the first defendant has got electricity connection or not. Admittedly, the house number of the plaintiff is 7-2-1271/1/28/A. Of course, in Ex.A.1 – C.C. of sale deed bearing No.264 of 1999 dated 23.02.1999, the southern side of the suit schedule property is shown as open land. 16. The plaintiff’s allegation is that the first defendant has encroached the southern side of the suit schedule property in the first week of March, 1999. It has to be seen that the plaintiff got issued legal notice on 16.03.1999 and in the said notice, he has shown the house number of the first defendant as house number 7-2- 1271/1/28/A. This itself proves that the case of the plaintiff is not correct. When the plaintiff alleges that the first defendant has recently constructed a shed with asbestos sheets in the open land by encroaching it in the first week of March, 1999, in all probabilities, municipal authorities would not have issued the house number, that too when it was constructed without any permission by 16.03.1999, i.e., within a period of one week. The documents field by the defendants show that MCH has addressed a letter to the Project officer, UCD, MCH, stating that the first defendant has been residing in house number 7-2- 1271/1/28/A and that he may be issued Slum Certificate to enable him to get electricity connection. Ex.B.1 is the Slum Certificate issued by MCH to the first defendant, which reveals that the first defendant has been residing in house bearing municipal number 7-2-1271/1/28/A. 17. The lower appellate Court has rightly held that though the southern boundary of Ex.A.15 and A.16 is shown as open land, but however, it is not stated whether this land is part of the land sold by MCH. Admittedly, the plaintiff, in his legal notice dated 16.03.1999, alleged that the first defendant has illegally encroached into the open land on the southern side of his house and also in Ex.A.6, he had mentioned that the first defendant encroached the open land left over by the plaintiff for common use of the colony people. Thus, the plaintiff initially claimed that the open land is left by MCH but subsequently, he claimed it as his own land. When the plaintiff alleges that the first defendant encroached into his land and constructed a shed with asbestos sheets, as rightly observed by the lower appellate Court, he ought to have filed a suit for recovery of possession. As discussed above, the claim of the plaintiff that the first defendant has recently constructed a house on the southern side of the suit schedule property falls to ground, particularly in view of the Slum Certificate issued to the first defendant in the year 1990 in Ex.B.1 and in view of the fact that the plaintiff himself has shown the house number of the first defendant in the legal notice dated 16.03.1999 issued by him. 18. The lower appellate Court has referred to Exs.A.17 – letter addressed to the first defendant by MCH dated 12.12.2002 and Ex.A.18 – letter addressed to the plaintiff by MCH dated 23.12.2002, which were filed by the plaintiff. Ex.A.17 reveals that there is no house bearing house number 7-2-1271/1/29/A in the assessment records of MCH and Ex.A.18 reveals that Ward No.7, Block No.2 of Shivajinagar is not identified as Slum area, as per the records of UCD, MCH. The lower appellate Court observed that once the area is declared as Slum, it may not continue as Slum forever. The lower appellate Court has also observed that Ex.A.17 and A.18 did not bear the office seal of the Government office. It was also observed that there are corrections in Ex.A.17, which are not explained. Thus, the lower appellate Court, for valid reasons, did not accept Ex.A.17 and A.18 as genuine documents. The lower appellate Court has also taken into consideration the admissions made by the P.W.1 that there are other slum houses adjacent to the house of the first defendant. The lower appellate Court, on re-appreciation of evidence on record, came to the conclusion that the house of the first defendant had been in existence, even by the year 1990. 19. On careful examination of entire evidence on record, the only conclusion that can be drawn is that the house of the first defendant had been in existence in the disputed area even much prior to purchase of the house by the plaintiff from his vendor and, therefore, the version of the plaintiff that the first defendant had constructed a shed with asbestos sheet by encroaching the open land left over by MCH recently appears to be not correct. Of course, it is also true that the first defendant’s case is also inconsistent. Though the first defendant had taken a plea that the premises originally belong to a temple and that the elders of the temple have permitted him to reside therein, but admittedly he has not filed any document in support of his contention. He has also admitted that he had not obtained any permission for the construction of his house from MCH. Of course, he had also admitted that his construction is causing obstruction to the window of the plaintiffs house, but it is settled law that the plaintiff’s suit cannot be decreed basing on the weakness in the case of the defendants. 20. It is made clear that before making construction, space has to be left between the houses as per the rules and it is for the MCH authorities to measure the area and to see that the constructions are made or modified as per the existing rules so that required space is left between the two houses of the plaintiff and the first defendant. This judgment does not come in the way of the municipal authorities in taking proper action or in the way of the plaintiff seeking his easementary rights by initiating appropriate proceedings. 21. In view of the above discussion and for the foregoing reasons, I do not see any valid and legal grounds to interfere with the reasoned judgment of the lower appellate Court and I hold that no substantial question of law arises for adjudication in this appeal, on the facts and circumstances of the case. The Second Appeal is devoid of merits and is liable to be dismissed. 22. In the result, the Second Appeal is dismissed. However, in the circumstances, no costs. 23. In the light of the dismissal of the main appeal itself, no separate orders need be passed in S.A.M.P.No.3143 of 2010, which is hereby dismissed. _______________________________ JUSTICE B.CHANDRA KUMAR 19th April, 2011 Bvv