IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY THE TWENTY FOURTH DAY OF SEPTEMBER TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Second Appeal No.12 of 2009 Between: Doppa Durga Sankara Vara Prasad .. Appellant AND Katakam Venkata Satyanarayana and another .. Respondents JUDGMENT: The Second Appeal is directed against the judgment and decree in A.S.No.157 of 2005, dated 20-08-2008 on the file of the III Additional District Judge, Kakinada, by which the judgment and decree in O.S.No.1085 of 2003 on the file of the I Additional Junior Civil Judge’s Court, Kakinada, dated 25-08-2005 were set aside and the suit O.S.No.1085 of 2003 was decreed in accordance with the directions given therein. The parties are referred to herein as they are arrayed in the suit. O.S.No.1085 of 2003 was filed by the plaintiffs against the defendant for permanent injunction restraining interference with the right of the plaintiffs to remove the Northern wall shown in the plaint plan as AB alleging the plaintiffs to be the purchasers of the subject property under a registered sale deed, dated 21-10-2002 and to be the possessors and enjoyers since then including the house wall and the compound wall on the Northern side of the house wall of the plaintiffs. They claimed that even the title deeds of the defendant showed the wall belonging to the plaintiffs and their predecessors-in-title and in view of the false caveat petitions filed by the defendant with a view to claim the wall and his obstruction to the removal of the wall, the plaintiffs filed the suit. The defendant resisted the claim contending that while he was unaware of the purchase by the plaintiffs, the description of the Northern boundary was wrong and any false recitals are not binding on the defendant. The plaintiffs or their predecessors-in- title had no compound wall or site after their house wall, which is the Southern boundary for the house wall of Thatavarthi Seshaiah/the defendant. The plaintiffs, therefore, had no right to remove the disputed wall belonging to the defendant, which they never enjoyed, and hence, the defendant desired the suit to fail. The trial Court framed issues on the entitlement of the plaintiffs for a permanent injunction and the existence of a cause of action in their favour and during trial, PWs.1 and 2 and DW.1 were examined and Exs.A.1 to A.27 and B.1 to B.3 were marked. The trial Court rendered its judgment on 25-08-2005 firstly holding that the plaintiffs had a cause of action to file the suit in the light of the caveats filed by the defendant. The trial Court also referred to the rival contentions and evidence and the principle that the plaintiffs have to succeed on the strength of their own case and not on the weakness of the defendant. The trial Court noted that PW.1 admittedly had no knowledge about the property prior to Ex.A.1 and the reference to the compound wall and the house of the defendant as in Ex.A.1 was not the reference in Exs.A.24 and A.25, the link documents. The admission of PW.1 that except in Ex.A.1, no other document mentioned the existence of a compound wall and thereafter, the house of the defendant, was appreciated with reference to the admission of PW.2 about the mistake in description in respect of Ex.A.5 in favour of his wife and the admission of PW.1 about there being one wall between the properties and no compound wall at any time. The trial Court, therefore, opined the plaintiffs to be not coming to the court with a true version, whereas the attempt by PW.2 to describe the Northern boundary as not what was actually mentioned was opined to be contrary to the documents. The report of the Advocate Commissioner, who noted the physical features, also was referred to, to observe the whole wall attached to the defendant’s house and the drainage flowing beside the disputed old wall to be clearly distinct from the new three storied building constructed in the plaintiffs’ site. The admission of PW.2 about the Northern lane exclusively belonging to the defendant even by the time his wife sold the property to the plaintiffs was also taken as corroborating the claim of DW.1 about the tiled roof of the plaintiffs’ vendor resting on the defendant’s wall. Observing that grant of relief of an injunction is discretionary and equitable, the trial Court declined to uphold the possession and enjoyment of the disputed wall with the plaintiffs, more so, with reference to the photographs Exs.B.1 to B.3 of the defendant, whose purchasers were not parties in any manner to Ex.A.1. The trial Court also noted that the vendors of the plaintiffs themselves were not examined in the suit and the suit for permanent injunction was, therefore, decided against the plaintiffs. In appeal in A.S.No.157 of 2005 on the file of III Additional District Judge, Kakinada in the judgment, dated 20-08-2008, the learned Appellate Judge, after referring to the rival contentions and evidence including Ex.B.4 photographs received as additional evidence and the grounds of challenge to the judgment of the trial Court, proceeded to observe that the defendant did not file any document or sale deed to show that the disputed wall is his exclusive wall, except filing Exs.B.1 to B.3 photographs, whereas the appellant filed 27 documents and noted that the Northern wall was shown as that of the plaintiffs in Exs.A.1 to A.6, whereas in Exs.A.22 to A.27, the Southern boundary was said to have been noted as the wall of Thatavarthi Seshaiah (Exs.A.22 and A.23), house of Vudathu Bheemaraju (Ex.A.24), house wall of Ryali Chenchalarao (Exs.A.25 and A.26) and joint compound wall (Ex.A.27) respectively. The learned Judge also referred to two caveat petitions filed by the defendant referring to the southern boundary as the house property of Thatavarthi Seshaiah, but not as the compound wall of the defendant. Based on the appreciation of documentary evidence by the Appellate Court in the manner in which it was done, it was concluded in the impugned judgment that at no point of time the Southern side roof of the defendant’s house touched the Southern side wall, which is the Northern wall of the plaintiffs’ house, on which the plaintiffs’ house was resting. The appellate Court was of the view that the defendant would not have constructed the wall to such a height and allowed the vendor of the plaintiffs to rest of the roof of the house on that wall. Inferring the disputed wall to be a house wall from the physical features disclosed by the photographs, the disputed wall was observed to be not capable of being concluded to be belonging to the defendant and the appellate Court went on to consider the subsequent development of construction of a big building in the plaintiffs’ site, which makes it necessary that the disputed wall should be used only as a compound wall. It should not be allowed to be raised to such a height to close ventilation to the plaintiffs’ property and therefore, the appellate Court was of the opinion that the wall should be restricted to be used as a compound wall at a height of 6 to 8 feet and accordingly gave directions decreeing the suit permitting the plaintiffs to remove the Northern wall shown as AB in the plaint plan without causing damage to the defendant’s property, while retaining the height of the wall at 6 to 8 feet for use only as a compound wall in future. The appellate Court also restrained the defendant from interfering with the said wall. The defendant is before this Court with this second appeal against the said judgment and decree contending that the plaintiffs, who did not approach the Court with clean hands, are not entitled to seek the equitable relief of injunction and in spite of admissions of PWs.1 and 2 in their evidence and though Exs.A.22 to A.27 do not support the conclusions of the appellate Court, the appellate Court came to a wrong conclusion. The appellant, therefore, contended that substantial questions of law arise about the misinterpretation of the documents, acceptance of false claims ignoring the admissions made by PWs.1 and 2 and the relief given to the plaintiffs solely based on the weakness of the defendant’s version. Sri S. Subba Reddy, learned counsel for the appellant and Sri E.V.V.S. Ravi Kumar, learned counsel for the respondents are heard at length. The Second Appeal was admitted on 30-01-2009 on the following substantial questions of law. 1) Whether the judgment of the lower appellate Court is vitiated for its failure to misinterpret or misread the documents filed by the plaintiff to prove his case? 2) In the absence of any recital in the link documents of the vendor of the plaintiff showing the wall as the boundary, whether the vendor of the plaintiff can convey a better title, which is not derived by him ? and 3) Whether the judgment of the lower appellate Court is vitiated for its failure to ignore the admission made by PW.1 and PW.2 in the cross-examination? Question Nos.1 to 3: Ex.A.2 registered sale deed dated 30-10-1933 in favour of the predecessors-in-title of the plaintiffs specifies the boundaries for the property with the Northern boundary being mentioned as the house site of Vudathu Venkataratnam. Ex.A.3 registered sale deed, dated 31-12-1943, Ex.A.4 relinquishment deed, dated 02-11- 1951, Ex.A.5 registered sale deed, dated 03-11-1951 and Ex.A.6 registered sale deed, dated 23-10-1958 also describe the Northern boundary identically. Ex.A.26 registered sale deed, dated 20-02-1981 describes the Northern boundary as the remaining house of the vendor in the same house number i.e. Door No.36-4-3. Ex.A.27 registered sale deed, dated 07-05-1981 describes the Northern boundary as the house of Vudathu Bhimaraju. Vudathu Bhimaraju is stated to be the son of Vudathu Venkataratnam described as the Northern owner in Exs.A.2 to A.6 and Exs.A.26 and A.27 together are stated to be covering the entire property purchased by the plaintiffs under Ex.A.1. Exs.A.24 and A.25 registered sale deeds dated 27-02- 1990 described the house of Vudathu Bhimaraju as the Southern boundary, while the Northern boundary was described as the property sold under the documents, which is inconsistent with the consistent description of the Northern boundary in the earlier documents as the house belonging to Vudathu Venkataratnam earlier and Vudathu Bhimaraju later. Then comes Ex.A.1 registered sale deed in favour of the plaintiffs, dated 21-10-2002, in which for the first time the Northern boundary was described as the compound wall of the property sold to the plaintiffs and beyond the same the tiled house of the defendant in Door No.36-4-2. As to how the Northern boundary described otherwise in the link documents from 1933 to 1990 underwent a change, as to be described differently in Ex.A.1, is sought to be explained in the oral evidence by P.W.1 as a mistake discovered at the time of execution of the original of Ex.A.1. Ex.A.22 is the registered sale deed in favour of Vudathu Venkataratnam, whose house site was described as Northern boundary in the link documents of the plaintiffs and in Ex.A.22, the Southern boundary is described as the house wall of Thatavarthi Seshaiah. Ex.A.23 registered sale deed, dated 19-11-1984 is the title deed of the defendant, which traced the title of the vendor to Ex.A.22 and the Southern boundary was again described as the house wall of Thatavarthi Seshaiah. Exs.A.7 to A.19 and B.1 to B.4 photographs with negatives, if closely perused and examined, appear to represent the disputed wall as a compound wall in between the multistoried building constructed in the site of the plaintiffs and the old house existing in the site of the defendant. Exs.A.20 and A.21 caveats are relied on by the plaintiffs to be signifying the admission by the defendant that the Northern wall belongs to the plaintiffs. But reading the contents of both the caveats as a whole shows that the defendant clearly stated about the plaintiffs purchasing the house originally belonging to Thatavarthi Seshaiah, which is to the South of the defendant and the removal of the entire house was the cause for the concern of the defendant. The contents of Exs.A.20 and A.21 about the removal of the house and the Northern wall leaving the property of the defendant without any wall in between the properties read together with Exs.A.22 and A.23, in which the Southern boundary was described as the house wall of Thatavarthi Seshaiah, may probablise that there would have been no compound wall separately apart from the house wall of the house on the South of the property of the defendant covered by Exs.A.22 and A.23 and the wall under dispute now might be the original house wall of the house on the South, which originally belonged to Thatavarthi Seshaiah. The dismantling of the house on the South of the defendant by the plaintiffs after their purchase under Ex.A.1 might have led to the disputed wall alone being left between the properties, which is the boundary between the properties. Such a probability is not in conflict with the description of the Northern boundary in the link documents of the plaintiffs. The only discrepancy is the description of the Northern boundary to the plaintiffs’ property in Ex.A.1 for the first time about the same being the compound wall of the property sold to the plaintiffs and beyond the same the tiled house of the defendant in Door No.36-4-2. The 1st plaintiff as P.W.1 claimed that there used to be a tiled house belonging to them, in the place of which he constructed a new building and the dispute arose when he wanted to remove the old wall. Though he had no knowledge about the property prior to Ex.A.1 and though he did not go through the link documents, which did not refer to any compound wall in between the properties, he again stated that it is only one wall which is partly a house wall and partly a compound wall showing that the description of the Northern boundary in Ex.A.1 is a misdescription and P.W.1 admitted that Exs.A.24 and A.25 do not refer to the said description of a compound wall beyond which there is the house of the defendant. P.W.1 himself again stated that there was no compound wall at any time between their property and the property of the defendant. P.W.2, the predecessor-in-title of the plaintiffs, tried as already stated to justify the misdescription of the Northern boundary in Ex.A.1. However, he had to admit that they did not mention in Ex.A.1 about the earlier description of the Northern boundary in the link documents being incorrect. He also stated that there is no wall separating the properties of the parties and that the Northern side lane exclusively belongs to the defendant, thus, making it clear that whatever property exists to the North of the disputed wall exclusively belongs to the defendant and that the plaintiffs have no property beyond the disputed wall. It is seen from the evidence of P.W.2 that even by the time of the property being sold to the plaintiffs under Ex.A.1, the entire construction in the property sold was removed except the disputed wall and Ex.A.9 photograph is as though the disputed wall might have been left after dismantling of the house to the South of the defendant’s property. What P.W.2 tried to further claim is that there used to be a lane to the North of the property purchased by them, thus, trying to lay a claim to a lane beyond the disputed wall, which does not run consistent with the contents of the documents already referred to. D.W.1, the defendant, also contended that the Northern boundary was wrongly recited in Ex.A.1 and he tried to claim ownership of the disputed wall, which he claimed to be enjoying with absolute rights. He stated that the plaintiffs’ property was a tiled house at the time of purchase of his property, about which there can be no dispute as the purchase by the defendant was in 1984 and the purchase by the plaintiffs was in 2002 with the construction in the property being claimed to have been removed by P.W.2 before Ex.A.1. D.W.1 also admitted that the eaves of the house were resting on the house wall of the plaintiffs and that there is a wall belonging to the plaintiffs adjoining his wall. Exs.A.7 to A.19 and B.1 to B.4 do not, in any manner, suggest the existence of a wall belonging to the defendant, adjoining which there is a wall belonging to the plaintiffs in between the properties and the photographs suggest the existence of vacant space on either side of the disputed wall. D.W.1 also admitted that there was no recital in Ex.A.23-his title deed that there is a wall of his house on the Southern side and he also admitted about mentioning in Exs.A.20 and A.21 about the attempts by the plaintiffs to remove the entire house without providing a wall for his property. He further admitted the Southern boundary described even in Exs.A.20 and A.21 to be the house of Thatavarthi Seshaiah. He further admitted that there is no separate wall adjacent to the wall shown in Ex.A.9, which is contrary to his claims about there being two walls and he also admitted that it is seen from the wall itself that the old tiles were removed. To explain the same, he stated that the roof of the plaintiffs’ vendor itself used to be on their wall, which plea was never made earlier. He was clear that the tiled roof of the vendor of the plaintiffs used to rest on the said wall shown in Ex.A.9 and he filed caveats only when that wall is being removed. He also admitted that his written statement did not refer to his having a house wall on the South, after which there is the wall of the plaintiffs and he also stated that the wall still existed till the time of his deposition. The evidence of D.W.1, thus, shows that the probability of the disputed wall being the house wall in the property purchased by the plaintiffs is not improbablised by the material on record. The judgment of the trial Court referred to in para 11 to the report of the advocate commissioner who noted the physical features of the disputed wall and who mentioned about the old wall attached to the defendant’s house and the drain flowing beside the disputed old house and attached to the disputed old wall. The trial Court also referred to the bathrooms attached to the defendant’s house and the gap between the plaintiffs’ house and the disputed old wall. The trial Court, therefore, with reference to the evidence of D.W.1 opined that either the disputed wall is in possession and enjoyment of the defendant or at best it is a joint wall, for which the plaintiffs cannot claim exclusive right for removing the same for further constructions. It was on that basis that the trial Court felt the defendant to be in possession and enjoyment of the disputed wall, but not the plaintiffs and dismissed the suit. The advocate commissioner appointed by the appellate Court in I.A. No.3972 of 2005 in A.S. No.157 of 2005 in his report was of the opinion that as per the document of the defendant, the disputed wall forms part of his property, while as per the town survey number, it forms part of the property of the plaintiffs except to an extent of 4 inches width on the Eastern side. The document of the plaintiffs is as though the entire disputed wall forms part of their property. The independent report of the advocate commissioner before the appellant Court, therefore, is not definite about the exclusivity of ownership and possession of the disputed wall for either party. In the appellate judgment, the learned Judge placed strong reliance on the absence of any explanation as to how the defendant allowed the vendor of the plaintiffs to lay the roof of his house over his wall and also relied on the circumstance that the roof of the defendant’s house did not touch the Southern side wall at all. The first appellate Court, therefore, considered the case of the plaintiffs to have been more probablised, but still it took into account the construction of a big building in the property purchased by the plaintiffs leaving the Northern wall only as a compound wall between the properties. While holding that the material was probablised to be belonging to the plaintiffs, the first appellate Judge permitted the plaintiffs to remove the Northern wall shown as AB in the plaint plan without causing any damage to the defendant’s property and retaining the height of the wall to an extent of 6 to 8 feet to be used only as compound wall in future, with which the defendant shall not interfere. It should be remembered that the suit is for a permanent injunction simpliciter and any determination of the questions of title to the disputed property arises only incidentally and in the light of what was already discussed above, the determination of the title to the disputed wall is not an indispensable necessity to determine the grant or otherwise of the equitable relief of injunction. As already stated, while the house wall of Thatavarthi Seshaiah was described as the Southern boundary to the property purchased by the defendant and the house site of Vudathu Venkataratnam/Bhimaraju was described as the Northern boundary for the property purchased by the plaintiffs, the complaints in Exs.A.20 and A.21 caveats and the physical features referred to in the reports of the advocate commissioners before the trial Court and the first appellate Court as well as the physical features disclosed by Exs.A.7 to A.19 and B.1 to B.4 photographs show the justification for the complaint of the defendant in Exs.A.20 and A.21 about the inconvenience he suffers, if there is no wall in between the properties. After the construction of the multistoried building in the property of the plaintiffs, the plaintiffs also would have to have a dividing wall between the properties even in the interests of safety and security of the occupants of the multistoried building. The grant of permanent injunction prayed for by the plaintiffs to have a right to remove the Northern AB wall as shown in the plaint plan would, thus, be not conducive to the protection of rights of both parties and it is obviously for that reason that the first appellant Court attempted to find a way out by giving further directions about the maintenance of the wall in between the properties in a particular manner. Therefore, while determining this second appeal, appropriate directions should be so evolved as to protect the rights and interests of both parties, while making it clear that the judgments of the trial Court, first appellate Court and this Court in considering the request of the plaintiffs for a permanent injunction do not conclusively determine the question of title to the disputed property. As the relief of injunction is an equitable relief, it will be within the inherent powers of the civil Court to mould the relief to be granted appropriately so as to safeguard the rights and interests of both the parties and consequently, the answers to the substantial questions of law framed at the time of admission of the second appeal on 30-01-2009 should be in the shape of moulding the directions given by the first appellate Court to suit the best interests of both the parties. Exs.A.7 to A.19 and B.1 to B.4 photographs show that the disputed wall had become sufficiently dilapidated and damaged requiring its replacement by a pucca dividing wall between the properties in the interests of the physical safety and security of the inmates in both the properties. The learned counsel for both parties have stated that execution petitions are pending before the trial Court for execution of the first appellate Court decree and the directions given herein can be given effect