HON’BLE SRI JUSTICE R.KANTHA RAO SECOND APPEAL No.177 of 2010 Date:08-06-2011 Between: Cantonment Executive Officer, Cantonment Board, SecunderabaD …Appellant And R & D (Defence) Co-operative Housing Society, Rep. by its Secretary, Secunderabad. …Respondent HON’BLE SRI JUSTICE R.KANTHA RAO SECOND APPEAL No.177 of 2010 JUDGMENT: This second appeal is filed against the decree and judgment dated 24.11.2009 passed by the I Additional Chief Judge, City Civil Court, Secunderabad in A.S.No.165 of 2008 whereby and whereunder the learned Additional Chief Judge reversed the judgment and decree dated 23.09.2008 passed by the XI Junior Civil Judge, City Civil Court, Secunderabad in O.S.No.885 of 2006. I have heard the learned counsel appearing on either side. The appellant is the Cantonment Board and the respondent is the Co-operative Housing Society. The brief facts relevant for considering the second appeal may be stated as follows: The respondent is the Co-operative Housing Society registered under the Co-operative Societies Act. It is the owner of the schedule mentioned plot (Plot No.8 (part) in Sy.Nos.80 and 81 admeasuring 780 sq. yards. The schedule mentioned property is situate in Chinnathokatta village, Bowenpally, Secunderabad. According to the respondent, the property was purchased by it for the benefit of the members under sale deeds dated 05.01.2000, 06.01.2000 and 11.01.2000 from the rightful owner. The respondent submitted a plan dated 28.05.2004 to the appellant/Cantonment Board for sanction of permission to construct a building in the schedule mentioned plot. The application was returned by the appellant on the ground that there is no layout plan in the name of the respondent approved by the appellant in plot No.8. On 19.12.2005 the respondent issued a notice to the appellant enclosing all the relevant documents seeking sanction of plan mentioned therein clearly that a permission is required to be accorded for construction of stilt plus three floors as per the plan enclosed within 30 days of receipt of notice, otherwise the respondent will be constrained to proceed with the construction of the building. There was no response received from the appellant to the said notice. Again on 24.02.2006 the respondent sent a reminder asking the appellant to process the application immediately, or else the respondent shall proceed with the construction work. This time also there was no reply from the appellant. Thereupon, it is said that the respondent proceeded with the construction work and completed the same to some extent by raising plinth beams and columns. Thereafter, according to the respondent, the officials of the appellant tried to demolish the structures raised by the respondent on the ground that they are illegal and encroaching into 40% open land relating to Amarjyothi Co-operative Housing Society in Sy.Nos.79, 80, 81, 82, 84 and 85, Chinnathokatta village, Bowenpally, Secunderabad. Under these circumstances, it is said that the respondent filed the suit seeking a declaration that the letter No. EB/PNo.8/Sy.No.80 and 81/B Pally/165/2308, dated 29.06.2006 issued by the appellant as null and void for grant of mandatory injunction issuing a direction to the appellant to grant sanction and accord permission for construction of the house as per the plan submitted and also to grant permanent injunction restraining the appellant and its officials from interfering with the possession and enjoyment of the schedule mentioned property. The learned trial Court accepting the version of the appellant that the construction made by the respondent is illegal dismissed the suit filed by the respondent. Feeling aggrieved, the respondent preferred an appeal A.S.No.165 of 2008 which was heard and disposed of by the I Additional Chief Judge and the first appellate court reversed the finding of the trial court and passed a decree in favour of the respondent granting all the three reliefs aforementioned prayed for by it. Against the said judgment of the first appellate Court, the present second appeal is filed by the appellant/defendant. It has been contended by the learned counsel appearing for the appellant that since admittedly there was no approval by the appellant for construction of the building and that the construction is said to be illegal and also the respondent is not entitled for a decree for the reliefs aforesaid prayed for, since the evidence adduced by the appellant showed before the trial Court that the respondent encroached 40% of open area relating to Amarjyothi Co-operative Society, the judgment of the trial Court being in accordance with the evidence on record ought not to have been interfered with by the first appellate Court. On the other hand, it has been contended by the learned counsel appearing for the respondent that the first appellate Court while reversing the judgment of the trial Court, thoroughly examined the evidence on record, the legal position and furnished adequate reasons for its decision and thus, the decree and judgment passed by the first appellate Court, more particularly when substantial question of law is not involved for consideration is not liable to be set aside in this second appeal. I have gone through the judgment rendered by both the courts below, in the light of the submissions made by the learned counsel on either side. Admittedly, the respondent addressed two letters and also issued a reminder indicating specifically that in the event of not responding to the said correspondence, it will proceed with the construction as per the plan submitted. The main contention of the appellant was that the respondent society made an encroachment of 40% of open area belonging to Amarjyothi Co-operative Society in whose favour the appellant-cantonment board approved the layout, the burden is on the appellant to prove that there is such an encroachment of 40% of open area relating to Amarjyothi society. In the lower court, the advocate commissioner was appointed on the request of the respondent. He surveyed the land with the surveyor of the cantonment board and submitted his report with a plan. The report of the commissioner along with the plan was marked as Ex.C-1. The learned advocate-commissioner mentioned in his report as follows: “As per the commissioner report, the road abutting plot No.13 on the west as per the layout plan merged with plot No.13 and the portion shown as park on the west of the road there is a B.T.road and plot No.13 was constructed in the site meant for park. It is also mentioned that plot Nos.11, 12, 14, 15 and 16 were constructed on the site earmarked for the road in the layout plan, the park on the east and south of plot Nos.23 & 24 is converted into residential houses and the owner of plot No.9 encroached the open space earmarked in the layout plan, and one Sri Sai Chandra Kala Complex was constructed by encroaching the park area shown in the layout plan and the apartments covered by plot No.19/A & 20 are also constructed in the area earmarked for park, and there is no road and park exists in between plot No.19 & 19/A. Similarly, there is no road in existence in between plot No.19/A, 20, 21 and 22, but it is a house in existence which is mentioned as plot No.72. The compound wall or plot Nos.21 and 22 was extended beyond the area earmarked for park. As per the layout plan, 4035-03 sq. yards meant for parks was encroached. According to the advocate commissioner, the respondent-defendant granted approval to several houses constructed which are described as plot Nos.12 to 22 and 72 etc. which were constructed by encroaching the road portions and park areas earmarked in the layout plan in Ex.B-3.” None of the parties did file any objections to the commissioner’s report which is part of the record in the instant case. The crucial aspect which requires consideration is that the so called Amarjyothi Weaker Section Co-operative Housing Society never raised any objection about the construction made by the respondent. The appellant-cantonment board did not produce the original document of sanctioned layout of Amarjyothi Weaker Section Co-operative Housing Society and the first appellate court noticed that the document relied upon by the respondent itself revealed that there was no sanctioned lay out in favour of Amarjyothi Weaker Section Co-operative Housing Society. The first appellate court recorded a positive finding that the appellant failed to prove that the respondent made construction by encroaching into 40% of open area belonging to the respondent allotted to Amarjyothi Weaker Section Co-operative Housing Society which was meant for laying roads and parks. The report of the commissioner positively disproved the version of the appellant. Under Section 181(6) of the Cantonment Act, 1924 where the board neglects or omits for one month after receipt of any written communication from the applicant seeking approval for the proposed construction to respond for a period of 15 days, the board deemed to have given sanction for the proposed construction. In the instant case, therefore the construction made by the respondent is under the deemed provision contained under Section 181(6) of the Cantonment Act and it cannot be said to be illegal. Further, the learned first appellate Court analysed the evidence in a proper perspective and rightly arrived at the conclusion that the respondent proved its case by adducing positive evidence and that the appellant failed to discharge its burden. Moreover, no substantial question of law is involved which is sine qua non for entertaining the second appeal itself. The findings arrived at by the learned first appellate court being strictly based on evidence and inconsonance with the settled legal principles regarding the reappraisal of the evidence by the first appellate court require no interference in this second appeal. The second appeal thus fails and is dismissed. However, there shall be no order as to costs. _________________ R. KANTH RAO,J Date:08-06-2011 CCM HON’BLE SRI JUSTICE R.KANTHA RAO SECOND APPEAL No.177 of 2010 Date:08-06-2011