THE HON’BLE SRI JUSTICE A. GOPAL REDDY SECOND APPEAL No. 1053 OF 2009 Date: 05-12-2009 Between Devanasetti Veera Venkata Vijayalakshmi and another …..Appellants Bezawada Srinivasa Rao (died) and five others …..Respondents THE HON’BLE SRI JUSTICE A. GOPAL REDDY SECOND APPEAL No. 1053 OF 2009 JUDGMENT: The unsuccessful plaintiffs in the Courts below filed this second appeal against the judgment of the learned VI Additional District and Sessions Judge (Fast Track Court), East Godavari at Rajahmundry dated 30-08-2007 in A.S No. 24 of 2005 dismissing the appeal confirming the dismissal of the suit through judgment dated 17-11-2004 in O.S No. 1384 of 2001 by the learned I Additional Junior Civil Judge, Rajahmundry. Initially, the suit was filed by the appellants - plaintiffs against defendant Nos. 1 to 3 seeking permanent injunction restraining them from making any constructions in the suit schedule or adjoining property against the bye-laws and building rules of defendant No.4 - Corporation and against the approved plan, if any. Subsequently, defendant No.4 was added vide orders dated 09-06-2003 in I.A No. 478 of 2002. Pending the suit, defendant No.1 died and as defendant No.2 was already on record, the other legal representatives were brought on record as defendant Nos.5 and 6. After defendant No.4 was added as a party, a relief was added seeking mandatory injunction directing all the defendants to remove the illegal and unauthorised constructions in the plaint schedule land and also in door No. 9-20-61. Plaintiff No.1 is the wife of plaintiff No.2 and having a vested reminder right in the plaint schedule property, that the plaintiffs are the citizens of Rajahmundry and are interested in making constructions in conformity with the rules and bye-laws of the Corporation in the neighbourhood. It is pleaded by them that defendant No.3 who is the adopted mother of plaintiff No.1 has got only life interest in the suit schedule without any right of alienation. The suit schedule property was under lease with defendant No.1 for 25 years from 02-12-1987 and he owns property adjoining the suit schedule property with door No.9-20-61, whereas the suit schedule property is in door No. 9-20-62. It is alleged that all the defendants in collusion are trying to demolish the existing shop and proposing to make construction of a multy-storied building in the site of door No.9-20-61 and thereby damaged the value of the plaint schedule property and that the proposed constructions are against the bye-laws and building rules. For seeking mandatory injunction, the plaintiffs pleaded that after dismissal of the temporary injunction petition, the unofficial defendants started construction of the building and filed O.S No.394 of 2002 against the defendant – Municipal Corporation and obtained ex parte interim injunction. Defendant No.2 filed a written statement, which was adopted by defendant No.1, stating that by the date of lease deed dated 02-12-1987, there was an old shop in the suit schedule, that the purpose of the lease is to make construction to do business in the said shop and accordingly, defendant No.3 gave a letter to defendant No.1 to make construction. On that basis, defendant No.1 had every right to make construction for enhancing the value of the property which will not cause any prejudice or loss to the appellants – plaintiffs. Defendant No.3 filed written statement on the same lines, whereas defendant No.4 filed separate written statement stating that defendant No.4 initiated action against defendant Nos.1 and 2 and issued notice to defendant No.1 who filed a suit and obtained orders of status quo which is being contested by it. As such, mandatory injunction need not be granted. After amendment seeking mandatory injunction, defendant Nos.1 and 2 filed additional written statement. Basing on the pleadings, the following three issues were settled for trial: 1. Whether the plaintiffs are entitled to the relief of permanent injunction as prayed for? 2. To what relief? 3. Whether the plaintiff is entitled to the relief of mandatory injunction as prayed for? In order to prove the case of the plaintiffs, plaintiff No.2 was examined as PW 1 and his friend was examined as PW 2 and Exs.A-1 to A-12 were marked. On behalf of the defendants, defendant No.2 was examined as DW 1; a relative of defendant Nos.1 and 2 was examined as DW 2; uncle of DW 1 was examined as DW 3; defendant No. 3 was examined as DW 4 and Town Planning Building Overseer was examined as DW 5 and Exs.B-1 to B-8 were marked. The trial Court after considering the evidence adduced by the parties concluded that defendant Nos.1 and 2 obtained approval for construction of building in D.No.9-20-61, but there was no approval for construction in door No.9-20-62 and the construction in door No.9-20- 61 was also in violation of the approved plan and from outside both the constructions in both door numbers appear to be single unit. The plaintiffs have no present right over the suit schedule and the construction made by the unofficial defendants does not damage the value of the suit schedule in any way. The construction in the suit schedule was made without approval and also against the building rules. Similarly, the construction in door No.9-20-61 was also made against the approved plan and defendant No.4 in response to the objections of the plaintiffs issued a notice to defendant No.1 for taking steps for violation of the building rules and the suit is pending in the said connection. The claim of the plaintiffs that they are filing the suit as public interested persons also sounds hallow. Following the judgment of this Court in 3 ACES, a Partnership Firm rep., by its Partner Sri Bishanlal Ahuja Vs. Municipal Corporation of Hyderabad[1], the trial Court held that though the construction is in violation of the approved plan by defendant Nos.1 and 2,when there are no personal injuries, even a neighbour cannot question the construction made against the building rules. Further, when defendant No.4 is taking steps for violation of the rules, the plaintiffs have no right to seek demolition. The trial Court holding thus dismissed the suit. On appeal, the lower appellate Court after considering the entire evidence once again, dismissed the appeal holding that the appellants – plaintiffs failed to establish the extent of unauthorised construction and it’s impact on them as they are inhabitants of the locality and apart from that, plaintiff No.1 issued a notice to respondent – Corporation on 26-11-2001 and filed the suit on 14-12-2001 within 30 days from the date of issuance of notice and thereby violated Section 685 (1) of the Hyderabad Municipal Corporation Act, 1955, as held by this Court in Religious Endowments Department represented by its Executive Officer of Turners Coultry, Visakhapatnam Vs. Visakhapatnam Municipal Corporation[2]. The concurrent findings arrived at by both the Courts below are unassailable as they are based upon the evidence adduced by the parties. The plaintiffs failed to establish the injury caused to them if the construction is allowed to continue. Further, the Corporation has already initiated proceedings for removal of the construction made contrary to the approved plan. Therefore, the plaintiffs are not entitled to the relief claimed by them. No question of law arises for consideration in this second appeal. It is accordingly dismissed. A. GOPAL REDDY, J 05-12-2009 ks [1] 1994 93) ALT 73 (FB) [2] 2003 (4) ALT 701