HON’BLE SRI JUSTICE GOPALA KRISHNA TAMADA SECOND APPEAL No.879 of 2009 DATE:09.03.2010 Between: K. Shankaraiah … Appellant and Smt. Savaramma and another … Respondents HON’BLE SRI JUSTICE GOPALA KRISHNA TAMADA SECOND APPEAL No.879 of 2009 JUDGMENT: 1st defendant in O.S.No.95 of 2000 on the file of the Junior Civil Judge at Mahabubnagar, is the appellant herein. For the purpose of convenience, the parties are referred to hereinafter as arrayed in the suit. 2. Briefly, the case of the plaintiff is that she purchased 209 sq.yards of site in Ward No.4, Ramaiah Bowli locality, Mahabubnagar, under a registered sale deed dated 07.03.1986 and having obtained permission from 2nd defendant-Municipality constructed a house therein except compound wall on the western side. The 1st defendant purchased a portion of house bearing No.4-2-98 under a registered sale deed dated 06.10.1979 adjacent to her house. Later, he demolished the front portion of the house and made construction encroaching into her land. He also started construction in her land by encroaching one foot towards eastern side, inspite of the objection raised by her. Therefore, she made a representation to the 2nd defendant-Municipality on 2nd, 16th and 20th August, 1999, who in turn, after going through the records, issued a notice to the 1st defendant to remove the deviated construction, for which the 1st defendant gave a reply on 20.09.1999. On the same day, the 2nd defendant gave a final notice for removal of the unauthorized construction. Questioning the same, the 1st defendant filed W.P.No.20102 of 1999 before this Court and the said writ petition was disposed of by this Court, by an order dated 27.09.1999, with a direction to the 2nd defendant not to demolish the compound wall till disposal of the representation of the 1st defendant dated 20.09.1999. Thereupon, the 1st defendant instituted O.S.No.224 of 1999 against the 2nd defendant for declaration that the notice is illegal, along with a petition seeking temporary injunction and in the said petition, status-quo orders were passed. The 1st defendant herein deliberately avoided to implead her as defendant in O.S.No.224 of 1999 with a view to obtain interim orders and also to avoid demolition of deviated construction. The 1st defendant is also creating nuisance by opening a door and entering into back portion of her house facing towards northern side, taking advantage of the status-quo orders. Hence, she filed the suit for declaration that the 1st defendant is not entitled to construct compound wall as shown in red colour of the plaint sketch and for mandatory injunction directing the 1st defendant to demolish the compound wall constructed in her site. 3. The 1st defendant filed written statement denying the averments of the plaint and contending that a window and a door were existing in the eastern side wall of the house purchased by him abutting 4’ 6” seri. The plaintiff is purchaser of open plot towards eastern side of the said seri, after ten years of purchase of the house by him. The plaintiff did not purchase the existing 4’ 6” common seri and existing wall as per her registered sale deed. She purchased only 43’ North-South and 40’ 3” North-South on western and eastern side respectively. As against the notice issued by the 2nd defendant, he filed O.S.No.224 of 1999 and status-quo orders were passed in a petition filed for temporary injunction. The plaintiff has no locus standi to ask the reliefs and file the suit. The reliefs sought are against the provisions of the Section 39 of the Specific Relief Act. The drainage and rain water from his house are flowing through the drainage existing in the 4’ 6” seri for more than 50 years ago. There is no alternative to the flow of drainage water from his house. To attend the repairs of the said drainage, the door fixed in the compound wall is essential. He did not enter into the land of the plaintiff and he constructed the house within the area purchased by him. Hence, the suit is liable to be dismissed. 4. The 2nd defendant-Municipality also filed written statement admitting the filing of writ petition and filing of O.S.No.224 of 1999 by the 1st defendant after the Municipality issued a notice against him to demolish the construction, and contending that there is no cause of action against the Municipality. Therefore, the suit is liable to be dismissed. 5. During the course of trial, on behalf of the plaintiff, P.Ws. 1 to 4 were examined and Exs.A.1 to A.9 were marked. On behalf of the defendants, D.W.1 was examined and Exs.B.1 to B.5 were marked. On a careful consideration of the entire evidence on record, the trial court answered the issues framed by it in favour of the plaintiff and accordingly decreed the suit, by judgment dated 05.03.2007. Challenging the same, the 1st defendant filed an appeal in A.S.No.82 of 2007 on the file of the I Additional District Judge at Mahabubnagar. The said appeal was dismissed on 18.04.2009. Aggrieved thereby, the 1st defendant preferred this second appeal. 6. Heard the learned counsel for the appellant-1st defendant and the learned counsel for the 1st respondent-plaintiff. 7. The substantial questions of law raised by the learned counsel for the appellant-1st defendant in the second appeal are as follows: i) Whether the decree passed in O.S.No.95 of 2000 by the learned Junior Civil Judge, Mahabubnagar, as confirmed by the learned I Additional District Judge, Mahabubnagar, in A.S.No.82 of 2007, affects the easementary rights of the 1st defendant? ii) Whether the courts below are justified in granting mandatory injunction in favour of the plaintiff for removing the constructions made by the 1st defendant? iii) Whether the appreciation of evidence by the courts below is proper? 8. In my considered view, the substantial questions of law as framed by the appellant in the present appeal have already been dealt with by the courts below and they have rendered concurrent findings of fact and no substantial question of law arises in this second appeal to be interfered with. Hence, the 2nd appeal is devoid of merits. 9. Accordingly, the second appeal is dismissed. There shall be no order as to costs. __________________________ GOPALA KRISHNA TAMADA, J Date: 09.03.2010. CBS HON’BLE SRI JUSTICE GOPALA KRISHNA TAMADA SECOND APPEAL No.879 of 2009 (Dismissed) 9th March, 2010 CBS