THE HON’BLE SRI JUSTICE C.V.RAMULU SECOND APPEAL Nos.855 and 860 of 2007 Dated: 05.10.2009 SECOND APPEAL No.855 of 2007 Between: 1. Shaik Mohammed Magdum (died). 2. Shaik Mohammed Naseema Bi. .. Appellants. And Shaik Beebi Jan (died) And others. .. Respondents. SECOND APPEAL No.860 of 2007 Between: Shaik Mohammed and others. .. Appellants. And Shaik Beebi Jan (died) And others. .. Respondents. COMMON JUDGMENT: Since both these second appeals, under Section 100 of C.P.C., are directed against the common judgment and decree dated 24.07.2006 in A.S.Nos.25 and 40 of 1997 on the file of the IV Additional District Judge, Nellore, which arose out of the judgment and decree dated 25.11.1996 in O.S.No.76 of 1990 on the file of the Subordinate Judge, Kovur, Nellore District, common questions of fact and law arise for consideration; therefore, they are being disposed of by this common judgment. The facts, in concise, are that the first respondent in both these second appeals is the plaintiff and the appellants in S.A.No.855 of 2007, who are the appellant Nos.1 and 2 in S.A.No.860 of 2007, are the defendants in the suit being O.S.No.76 of 1990 on the file of the Subordinate Judge, Kovur, Nellore District, filed for declaration of title to the plaint schedule property, recovery of possession of it and payment of mesne profits. The Court of first instance, after appraisal of both oral and documentary evidence, by judgment and decree dated 25.11.1996, decreed the suit partly, by declaring the title of the plaintiff to the plaint schedule vacant site, excluding the superstructure existing therein i.e., the zinc sheet roofed house, but the relief of recovery of possession of the superstructures and the relief of mesne profits were denied. Aggrieved thereby, the defendants filed A.S.No.25 of 1997 on the file of the IV Additional District Judge, Nellore, whereas, for not granting the relief of recovery of possession of the superstructures i.e., zinc sheet roofed house on the plaint schedule property, the plaintiff filed A.S.No.40 of 1997. During pendency of the appeal suits, the plaintiff and defendant No.1 died and, so, their legal representatives were brought on record in both the appeal suits. Since both the appeal suits arose out of the judgment and decree in O.S.No.76 of 1990, the first appellate Court clubbed both appeal suits and, after detailed consideration of the matters, disposed of the same by common judgment and decree dated 24.07.2006, dismissing A.S.No.25 of 1997 and allowing A.S.No.40 of 1997, declaring the plaintiff and her legal representatives as the owners of the suit property and ordering delivery of possession of the suit property to the plaintiff by directing the defendants to vacate the premises by taking away the superstructures existing in the plaint schedule property. Assailing the judgment and decree dated 24.07.2006 in A.S.No.25 of 1997, the defendants preferred Second Appeal No.855 of 2007, whereas against the judgment and decree dated 24.07.2006 in A.S.No.40 of 1997, the defendants and their legal representatives preferred Second Appeal No.860 of 2007. The only substantial question of law raised by the appellants is that the direction issued by the first appellate Court to take away the superstructures raised in the plaint schedule property amounts to granting of mandatory injunction. In this regard, it is necessary to notice the reasons of the learned Additional District Judge, Nellore, who, at paragraph 29 of the common judgment in the appeal suits, observed as under: “There is no such evidence coming forth either on the side of plaintiff or on the side of defendants as to who constructed the zinc sheet roof house when the thatched hut was damaged in a fire accident. It is the case of both the plaintiff and the defendants that the thatched hut was damaged in a fire accident. PW.1 in her evidence simply deposed that she got the house constructed through DW.1, except this statement of PW.1 in her evidence, there is no other piece of evidence to show as to what was the amount incurred for construction of the zinc sheet roof house and how P.W.1 provided those funds to D.W.1. Admittedly, D.Ws.1 and 2 being in possession, it is to be accepted that they carried out the construction of the zinc sheet roof house in the plaint schedule property. There is no evidence coming forth from the side of defendants to show as to what was the actual amount incurred by DW.1 in constructing the zinc sheet roof house. There is also no document obtained by DW.1 from PW.1 to show that the zinc sheet roof house was constructed by him with his own funds. Since, it is the case of PW.1 that she allowed DWs.1 and 2 to live in the suit house, what was all the construction made by DW.1, it was all made with such an understanding that DW.1 would remove such structures at the time of vacating the premises. So I make it clear that there is no evidence coming forth from the side of plaintiff to show that the zinc sheet roof house was constructed by her with her own money, so the plaintiff being declared as the owner of the property and she is only entitled to have the vacant possession of the suit property and it is for the defendants to remove and take away the superstructures there in existence on the plaint schedule property at the time of vacating the same otherwise the plaintiff is at liberty to get the super structures demolished through process of Court and is entitled to get vacant possession of the plaint schedule property. So, the point is answered with the finding that the defendants in the suit failed to prove the documents Ex.B5 and B6 and thereby they are unsuccessful in their claim put forth as the purchasers of the suit properties under Exs.B5 and B6.” In the light of the aforesaid reasons of the learned Additional District Judge, it is clear that he, in his pragmatic view, directed the defendants to vacate the premises by taking away the super structures raised on the suit schedule property and, in case of failure on the part of the defendants, the plaintiff and his legal representatives, who are brought on record, were given liberty to get vacant possession of the property following due process of law. However, since there was no concrete evidence placed by both the parties as regards the raising of structures, the lower appellate Court gave such a decision to meet the contingencies that may arise in the present case. Thus, I am of the considered view that no substantial question of law arises for consideration, particularly, in view of the fact that the suit was decreed insofar as the declaration of title and it was the concurrent finding of both the Courts below, and, therefore, the second appeals are liable to be dismissed. Accordingly, both these Second Appeals are dismissed. However, the defendants-appellants are granted one month time from today to take away the super structures existing on the plaint schedule property. No order as to costs. _____________ C.V.RAMULU,J 05.10.2009 v v