THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR SECOND APPEAL No.209 of 1999 Dated:- 19th August, 2010 Between:- The Executive Engineer, R & B, Narsaraopet …Appellant AND Nalamolu Venkateswara Rao and another …Respondents THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR SECOND APPEAL No.209 OF 1999 JUDGMENT:- As there is no representation for respondents, the arguments of the learned counsel for the appellant are heard and the second appeal is being disposed of. This Second appeal is directed against the judgment and decree dated 04.10.1996 passed in A.S.No.29 of 1988 by the Principal Subordinate Judge, Narsaraopet (for short, ‘appellate Court’), whereby and whereunder, the appellate Court reversed the judgment and decree dated 25.02.1988 passed in O.S.No.117 of 1984 by the Principal Munisif Magistrate, Narsaraopet (for short, ‘trial Court’). 2. The third defendant i.e., Executive Engineer, R & B Department is the appellant herein. The second respondent herein – Narsaraopet Municipality represented by its Chairman is the second defendant and the third respondent herein – Commissioner of the said municipality is the third defendant in the suit. The first respondent herein is the plaintiff in the original suit. For the sake of convenience, the parties will be referred to as they were arrayed before the trial Court. 3. The plaintiff filed the said suit seeking declaration and permanent injunction. His specific case is that he had purchased the suit schedule property and at the time of purchase, it was an old house and as he wanted to construct a two-storied building, he approached the municipal authorities and obtained sanction plan for construction of the building and that he has almost completed construction of the building. His main case is that the construction is as per the plan approved by the municipal authorities and that he had not encroached either into the municipal site or into the site belonging to R & B Department. Ex.A.1 is the copy of the plan approved by the municipal authorities and Ex.A.2 is the proceedings of the Municipal Commissioner of the municipality approving the plan. 4. The specific case of the third defendant is that the plaintiff encroached into the road called Alnadu Road which is passing through Narsaraopet town within the municipality and that on 27.01.1953, a survey was conducted and a plan was prepared and as per the survey and the plan, the road is in T.S.No.1244 in Block No.16, Ward No.1 and Ex.B.2 is the true copy of the original plan. The further case of the third defendant is that the plaintiff had encroached into a portion of the road margin as shown in red ink in Ex.B.2 and the encroachment is about 12’ 6” towards road side, 4’.6” on one side and 2’.6” on the other side. It is also averred that the municipality is not the authority to grant permission for construction of the houses and permit encroachment into the road under their control. 5. On behalf of plaintiff, P.Ws.1 to 3 were examined and Exs.A.1 to A.3 were marked. On behalf of the defendants, D.Ws.1 and 2 were examined and Exs.B.1 and B.2 were marked. 6. The specific case of the plaintiff is that the construction undertaken by him is in consonance with the sanctioned plan and that he had not encroached into the road margin. The specific case of the third defendant is that the plaintiff encroached into the road margin as indicated above. 7. Heard the learned counsel on record. 8. It is not in dispute that the plaintiff approached the municipal authorities and obtained permission for construction of building. Ex.A.1 is the copy of the plan approved by the municipality. Ex.A.3 is the registered sale deed dated 25.06.1970 which is executed in favour of the plaintiff. In Ex.A.1, the southern side is shown as municipal road. The recitals of Ex.A.1 and A.2 would go to show that the plaintiff has been permitted to construct the house as per the sanctioned plan. But the distance between the R & B road and proposed construction is not mentioned in any of these documents. Therefore, the documents filed by the plaintiff does not show whether the plaintiff has encroached into the area of R & B road or not. Of course, P.W.1 – the plaintiff denied that he encroached into the municipal site or into the site belonging to R & B department. According to him the Municipal Inspector visited the site before and after the sanction of the plan. He deposed that the municipal authorities never objected his constructed while the construction was in progress. He further deposed that there was an old house when he purchased the property and subsequently, he demolished the same and constructed a two-storied building. According to him, the road, including the road margin, is 65 feet. P.W.1 himself admitted that he did not get the road measured to know whether there is encroachment of about 1.35 metres and 0.76 metres on southern and western side road margin, even after the defendants filed written statements. Therefore, as per the evidence of P.W.1, he is not sure whether he had encroached into the road margin or not, as alleged by the defendants. 9. P.W.2 – Motukuri Anjaneyulu is mason who constructed the house of the plaintiff. According to him also, on the southern side of the house of the plaintiff, there is a road and towards east, there was a hotel of one G.Venkateshwarlu and towards west, a shop of one Vishnu Murthy. His evidence reveals that the plaintiff’s house does not cause any obstruction to the use of road and that there is no encroachment by plaintiff into the road margin. According to him, the plaintiff’s house is at a distance of 40 feet from the southern public road. He further deposed that the plaintiff’s house and other houses are on one line and the pial of the plaintiff is projected to the southern road. 10. P.W.3 – Kotha Srinivasa Rao is having a fancy shop opposite to the house of the plaintiff. His evidence go to show that the plaintiff has constructed his house on the old foundation and did not lay any new foundation. He further deposed that there is an electric line at a distance of about 7 to 8 yards from the house of the plaintiff and there is no movement of traffic to the north of electric supply wire i.e. between the house of the plaintiff and the road. He had admitted in his evidence that did not see the municipal plan and the measurements of the house of the plaintiff. He had also categorically deposed that he cannot say whether the plaintiff encroached into the Government land or not. 11. Admittedly, in this case, no surveyor was examined. On behalf of the defendants, D.Ws.1 and 2 were examined. D.W.1 is the Building Overseer. According to him, the house of the plaintiff is in lot No.1 in T.S.No.1243. According to him, T.S.No.2294 is Government Poramboke and T.S.No.2132 belongs to a private person. His evidence reveals that Ex.B.1 is the copy of town plan. He says that the building of the plaintiff is constructed by encroaching four feet road margin. In his cross-examination, he admitted that he did not measure the area and he had no personal knowledge about the same. However, he deposed that the other houses are in one line and alignment. 12. D.W.2 is the Assistant Engineer of R & B Department. According to him, a road is passing through Narsaropet Town within the municipality. His evidence reveals that on 27.01.1982, a survey was conducted in respect of the road and a plan was prepared and Ex.B.2 is the true copy of the original plan of T.S.No.1244 Pg.1 book No.16 in Ward No.1. He further deposed that the plaintiff had encroached into a portion of the road margin and it is shown in red ink in Ex.B.2. He further deposed that the plaintiff encroached 12’ 6” towards road side, 4.6” on one side and 2.6” on the other side. According to him, the municipality has no right to sanction plan for construction of house in the road margin which belongs to R & B Department. During the cross-examination, he had admitted that though he measured the site in August, 1987, he did not give any notice to the plaintiff. He further deposed that he did not measure T.S.No.2294 and the distance between the electricity line and the plaintiff’s house. 13. As seen from above evidence, it is clear that there is no proper measurement of public road. Admittedly, D.W.2 surveyed the locality without issuing notice to the plaintiff. It is clear that the evidence adduced by the plaintiff is not sufficient to prove that he constructed the house in his own area without encroaching into the road margin. Ex.B.1 and B.2 clearly shows that the plaintiff encroached into the road margin. However, as discussed above, Ex.B.2 was prepared without issuing any notices to the plaintiff. A substantial question of law had been framed in the grounds of this appeal which is as follows: I. Whether any permission granted by Narsaraopet Municipality for construction of building by the first respondent and if any such construction is made pursuant to such permission on site belonging to the R&B department, is it not liable to be removed by the owner and whether any such permission creates right in favour of the first respondent to remain in possession and protect the same by seeking injunction against the real owner? II. In the absence of notice under Section 80 C.P.C., whether the suit filed by the respondent is maintainable and that when such specific plea is taken in written statement, is it not incumbent upon the Court to frame an issue and decide it? 14. While framing issues, it is the bounden duty of the Court to examine the pleadings of both the parties and issues raised by them. When the main issue such as maintenance of the suit for non-issue of notice under Section 80 C.P.C. has been raised by the defendants, the lower Court ought to have framed an issue and ought to have decided that issue. Merely because the municipality had sanctioned the plan, it does not give any ownership right to any party on a public area and that it does not give any right to any person to encroach into the public road and to make construction in such public area. The sanctioned plan and the proceedings issued by the Municipality do not give any authorization to the plaintiff to encroach into the Government land and to make construction on public road. When the R & B department claims that it is their property and they are the absolute owners of the property, mere sanctioning of any plan by the municipality does not give any right to encroach upon the road margin. 15. Be that as it is, in the instant case, since the evidence on record is not sufficient to prove the encroachment made by the plaintiff, I consider it just and reasonable to remand the matter back to the trial Court giving liberty to both the parties to adduce further evidence in respect of their contentions. Apropos to the above, be it made clear that any survey to be conducted by the surveyors or Government authorities should be after giving due notices to the parties and in the presence of the parties. 16. In the result, the Second appeal is allowed setting aside the impugned order of the appellate Court. The matter is remanded back to the trial Court giving liberty to the parties to adduce further evidence in respect of their contentions and the trial Court shall dispose of the matter in accordance with law. No costs. ______________________________ JUSTICE B.CHANDRA KUMAR August 19, 2010 Bvv