Sri D Tirumala Rao

IN THE COURT OF THE III ADDITIONAL CHIEF JUDGE, CITY

CIVIL COURT HYDERABAD

Dated : This the 22nd Day of JUNE, 2015

PRESENT: SRI D. THIRUMALA RAO,

III ADDITIONAL CHIEF JUDGE

A.S. No.365 of 2009

Between :

Shaik Abdus Sattar ... Appellant

A N D

1. Municipal corporation of Hyderabad.

2. Assistant City Planner.

3. Asif Mahmood S/o Late Mirza Kaleemullah Baig.

4. Siddique Sultana D/o late Mirza Kaleemullah Baig. Defendants No.3 and 4 reside at H.No.22-8-512/11, Kochay Khateeb, Purani Haveli,Hyderabad.

...Respondents

On Appeal against the decree and judgment dt.07-05-2009

on the file of 13 th Junior Civil Judge, City Civil Court,

Hyderabad in O.S. 6428 of 2001

Between :

Shaik Abdus Sattar ... Plaintiff

A N D

1. Municipal corporation of Hyderabad.

2. Assistant City Planner.

3. Asif Mahmood S/o Late Mirza Kaleemullah Baig.

4. Siddique Sultana D/o late Mirza Kaleemullah Baig

...Defendants

Defendants No.3 and 4 reside at H.No.22-8-512/11, Kochay Khateeb, Purani Haveli, Hyderabad.

This Appeal is coming on 08.04.2015 before me for final hearing in the presence of Sri Shaik Mahmood Ali, Advocate for the

Appellant and of Sri Smt P Vimala Devi, Advocate for Respondent

No.1 & 2 and Defendant No.3 & 4 remained exparte and and the matter having stood over for consideration and this court passed the following :

JUDGMENT

This is an appeal filed against the decree and judgment dated

**2** A.S.NO.365 OF 2009

07.05.2009 passed in O.S.No.6428/2011 on the file of XIII Junior Civil

Judge, cum I Additional Rent Controller, Hyderabad. The appeal is

made over to this court for the disposal.

For the sake of the convenience the parties are arrayed as parties in the trial court.

2.The plaintiff filed the suit for declaration and also a suit for mandatory injunction against the defendants No.1 to 4.

The brief facts of the plaintiff's case are that the plaintiff is the owner and possessor of House No.22-8-512/11-A, Kochay Khateeb,

Purani Haveli, Hyderabad. He purchased it under registered Sale deed dated 4.5.1992 registered as document No.882/92 in the office of Sub-Registrar, Azampura, at Malakpet, Hyderabad. The adjacent house on the northern side of plaintiff's house is M.No.22-8-512/11,

Kochay Khateeb, Purani Haveli, Hyderabad which was owned by

Kaleemullah Baig who expired a year back. The defendants No.3 and 4 are some of the heirs of the said deceased and they are now in possession of the suit schedule property. Both the said houses were constructed as a composite building by late Kaleemullah Baig.

The southern portion of it was sold to vendor's vendors of the plaintiff. As such the wall intervening both the house is one and the roof laid over these two houses is one common RCC slab. The walls of both the houses are made of mud and brick and have no pillars.

The houses were constructed 35 years ago in 1966. The case of the plaintiff is that the house of the plaintiff is double storied house. The house of the defendants was not having first floors before 16th July 2001. Two rooms of the plaintiff have wall common with the

**3** A.S.NO.365 OF 2009

defendants No.3 and 4. The defendants No.3 and 4 wanted to construct first floor on the existing roof slab by attaching their wall to the wall of the plaintiff and by chiseling it. The plaintiff objected to the said construction. They chiseled the ground floor wall. It is also further the case of the plaintiff that the plaintiff's objection was that the defendants No.3 and 4 should leave a set back of 11 ft. from the wall of the plaintiff and that they should obtain sanctioned plan from the Municipal corporation but they did not care to the plaintiff's request and started chiseling the ground floor common wall. On their side the construction commenced on 16.07.2001 and they made several changes in the ground flour and damaged the intervening wall which resulted in five cracks in the ground floor common wall and one crack in the roof of ground floor. All these six cracks appeared between 1st August and 31st August 2001. Two cracks in first floor wall appeared recently. These cracks appeared in both the rooms of ground floor and first floor. The photos taken on 3rd, 10th and 17th August 2001 showing the cracks will be filed later on as they have been filed in another case between the same parties. It is also submitted by the plaintiff that the plaintiff's complaint against these illegal and unauthorized construction to the

Deputy Commissioner of Hyderabad on 12.7.2001 to the City Planner on 18.7.2001 to the Assistant city Planner on 29.8.2001 and the complaints are carried on by defendants No.3 and 4 but the defendant No.2 did not take any action in spite of written requests and personal meetings with him i.e, Asst. City Planner and also with his assistant who is Inspector in Town Planning Section did not care

**4** A.S.NO.365 OF 2009

to take any action to stop the construction which went on for nearly two months. It is submitted that on 28th and 29th August 2001 the defendants No.3 and 4 started constructing walls along with doors and windows, on the roof of ground floor and they completed the laying of first floor slab on 5th September between 5-6 September night and 6 September 2001. The defendants No.3 and 4 did not leave a setback 11ft or of any inch from the wall of this plaintiff and thus contravened the Zonal Rules and submitted that it is continuing to cause damage to the wall. The plaintiff further submitted that having found that the defendant No.2, Asst. City Planner is not taking any action to stop the construction filed a writ petition

No.18758/2001 against the defendant No.1 for direction to take action under law to remove the illegal construction made by defendants No.3 and 4. The Hon'ble High Court after hearing the standing counsel for defendant No.1 passed order on 10 September 2001 directing the defendant No.1 to take action as per the law against the illegal construction which was being made by defendants

No.3 and 4, but in fact no action was taken until laying of first floor roof slab which was being done on 5.9.2001 and during whole night of 5th and 6th September and on 6th September 2001. After this construction was made a notice dated 6th September bearing Sl

No.198/56 was served on the defendants 3 and 4 on 10 September 2001. From this it is clear that after construction was completed to a major extent by laying RCC slab, notice was served by putting back date as 6th September 2001. Defendant No.3 has noted to the notice and in his second application 12 September 2001 that the notice

**5** A.S.NO.365 OF 2009

dated 6th September is served on him on 10th September 2001. The

MCH personnel were siding the defendants 3 and 4 and with that idea in their mind they allowed the defendants 3 and 4 to proceed with the construction in laying roof slab, doors and windows and after its completion they served the first notice on 12th September requiring demolition of construction. The defendant No.3 filed suit

O.S.No.5255/2001 on 13th September 2001 and obtained exparte

injunction against the defendants 1 and 2 not to demolish the construction. The plaintiff came to know of the injunction on 28th

September 2001. the exparte injunction was obtained inspite of the caveat petition filed by this plaintiff before the hon'ble judge and in spite of this the plaintiff being defendant No.3 to the plaint and injunction petition. No notice was given to this plaintiff before passing exparte injunction. It is also the case of the plaintiff that the plaintiff gave lawyers' notice dated 13th September 2001 by speed post which was received by defendant No.1 on 14th September. The notice is under Section 685 of MCH Act requesting him to take action to stop further construction and to demolish what has been made illegally failing which after expiry of one month, the plaintiff would be constrained to file a suit for the said reliefs and defendant No.2 gave reply dated 27th September which was received by the plaintiff on 3rd

October 2001 and in his reply notice it is stated that they have initiated action but defendants 3 and 4 have filed suit before the V

Junior civil Judge, City Civil Court, Hyderabad in O.S.No.5225/2001 and stayed demolition and alleged that the suit is not a remedy to the plaintiff's case. It is also the case of the plaintiff that due to the

**6** A.S.NO.365 OF 2009

said illegal constructions made without leaving setback space the rainwater from the roof of defendants 3 and 4 is seeping along the newly construction attached wall and entering into the first floor rooms of plaintiff and caused damage to the valuable saman and made the room unusable. The defendants 3 and 4 laid the slab in such a way that the slope of the rain water is towards the joint wall.

Every time it rains, the same difficulty will be and all this is due to not leaving of 11 ft setback space from the wall of the plaintiff and due to the weight of the new construction which stands on slab which is resting on the mud and brick wall having no pillars, there is likelihood that the old building of the plaintiff constructed 35 years back may collapse. There is no wall on the ground floor exactly underneath the new wall on 1st floor. There is danger to the life and property of the plaintiff. The easementary rights of privacy, light and air of the plaintiff are affected. The construction is made without the supervision of a qualified engineer and without the sanctioned plan from MCH and without leaving a set back space. In the written statement and the counter affidavit both dated 8th

October 2001 in the aforesaid injunction suit O.S.No.5225/2001 the defendants No.1 (MCH) stated that the permission granted in 1979 has lapsed 22 years back and the construction is illegal and is to be demolished and that the defendant No.3 has approached the court by misleading the facts and the defendants 1 and 2 stated that the first floor construction by defendant No.3 is without obtaining necessary permission as required under Section 426 and 429 of

MCH Act and is to be demolished for which it issued two notices

**7** A.S.NO.365 OF 2009

dated 6th and 12th September 2001 to the MCH admitted that the

1979 plan lapsed and requested for its renewal and further stated that he without waiting for renewal was proceeding with the construction and in fact proceeded with the construction. He further made a request that MCH should help him in his illegal construction.

His words in his applications are reproduced in the plaint.

Specifically hence plaintiff filed the present suit for the relief sought in the plaint.

3.The defendants No.1 and 2 filed a detailed written statement by denying the allegations made against them and further stated that the plaintiff has to put strict proof of his title over the suit schedule property and also it is further submitted by the defendants that defendants No.3 and 4 were making construction over the first floor, the defendant corporation issued notice U/S 452 and 636 of

MCH Act, 1955. On receipt of the notices the defendants No.3 and 4 approached the V Junior Civil Judge, City Civil Court, Hyderabad and obtained stay orders in O.S.No.5225/2001 during the course of construction only. It is pertinent to mention that there was a dispute between the plaintiff and defendants No.3 and 4 and the same is pending vide O.S.No.3954/2001 before the hon'ble court pertaining to the common wall and the court was pleased to dismiss the case vide I.A.No.565/2001 in O.S.No.3954/2001. Since the plaintiff failed to prove his prima facie case and balance of convenience to seek the equitable relief of temporary injunction. Defendants No.1 and 2 already initiated action against the illegal construction carried out by

**8** A.S.NO.365 OF 2009

the defendants 3 and 4 by issuing the notices under the provisions of

HMC Act cause of action does not arise to the plaintiff to file the present suit against the defendant as the defendants 1 and 2 already initiated action against the defendants 3 and 4. Hence the present suit is liable for dismissal and also plaintiff failed to issue notice U/S 686 of HMC Act which is mandatory.

4.The 3rd defendant filed a detailed written statement by denying the allegations made in the plaint. The 3rd defendant stated that plaintiff filed a suit in O.S.No.817/02 on the file of the 1st A.R.C for damages against the defendants herein and that he also filed a suit against the defendant herein and that he also filed suit against this defendant and defendant No.4 for damages being O.S.No.5928/2001 on the file of XIX Junior Civil Judge, City Civil Court, Hyderabad and therefore in view of the filing of the above suit the present suit is not maintainable as it is filed to harass the defendants 3 and 4. The defendant No.3 submitted that originally the father of this defendant late Kareemullah Baig constructed the H.No.22-8-512/11 with due permission of MCH granted in the year 1966. At that time after execution of the sale deed, the dividing joint wall was shown in the plan annexed to the sale deed, and the said purchaser raised the construction of the first floor by using half of the joint wall as the entire construction is on load bearing only and the construction so made does not affect any way to the southern portion in possession of the father of this defendants. At that time the father of the defendant No.3 did not raise any kind of objection to the construction except saying that there should not be any kind of

**9** A.S.NO.365 OF 2009

opening towards his property, they acted accordingly. For this purpose of personal accommodation, the father of defendant No.3 obtained permission for construction of the first floor over his remaining area and the same was granted by MCH in file

No.512/11/8/22/79, under permission No.24/60 dated 2.4.1979.

Accordingly the father of the defendant constructed a staircase on the southern side abutting the joint dividing wall and also constructed a first floor room and at that time the above said purchaser or any other person did not raise any kind of objection.

The late father of defendant No.3 did not proceed with further construction of first floor, due to financial difficulties. Now the defendant No.3 wanted to make complete the construction of the first floor as per the sanctioned plan and as a courtesy sake, this defendant informed the plaintiff of his intention to complete the further construction of the first floor. The plaintiff said that he would reply in two days, but within two days he filed a suit in

O.S.No.3954/2001 on the file of V Junior Civil Judge, City Civil Court,

Hyderabad and tried to obtain injunction order in I.A.No.565/2001 and after due enquiry the injunction petition is dismissed and CMA

No.264/01 filed by him is also dismissed on 4.10.02 by the XI Fast

Track Court (XI ACJ, City Civil Court, Hyderabad). The suit is pending in which this defendant filed all the documents and sanctioned plan which will be summoned at the time of trial, not only this, the plaintiff filed a suit in O.S.No.5928/2001 on the file of XIX Junior civil

Judge, City Civil Court, Hyderabad for damages of Rs.25,000/- and

also filed O.S.No.817/02 on the file of the I ARC cum XIII Junior civil

**10** A.S.NO.365 OF 2009

Judge, City Civil Court, Hyderabad against the 3rd defendant as well

as defendants No.1 and 2 for damages which is pending.

5.The 3rd defendant further stated that the 3rd defendant made construction without effecting any way to the plaintiff's property and in the same fashion as the vendors of the plaintiff made the construction. This defendant by constructing a wall attached to the joint wall laid the roof. The allegations that this defendant made several changes on the ground floor are denied by the 3rd defendant and the defendant while constructing first floor taken all possible precautions without effecting the property of the plaintiff. The allegations that due to the construction made by this defendant cracks have developed on the ground floor and first floor into the plaintiff's property are all made up and stated only to file the present suit. Hence denied and put that the plaintiff must prove the same. The plaintiff did not provide the copies of the photos alleged to have been filed this defendant and this defendant reserves his rights to explain fully as and when the photos are provided for. It is also denied that the question of giving set back as alleged does not at all arise. Subsequent to the filing of the suit, the plaintiff provided the copies of the complaint mentioned in para 7 of the plaint. This defendant submits that all the allegations made in the complaints are all also made up, and after made the complaints with a malafide intention to stop his construction which is being made on the basis of earlier permission as stated above, with a malafide intention to create harassment and loss to this defendants. The 3rd defendant

**11** A.S.NO.365 OF 2009

made the construction but exact dates is not remember but due to the directions given by hon'ble court in O.S.No.5225/2001 and

O.S.No.3954/2001 on the file of V Junior Civil Judge, City Civil Court,

Hyderabad the defendant No.3 did not proceed with further construction. The question of giving set back is given and the defendant may not be able to lay the roof as the defendant No.3 property is a small property and also submitted that the construction is not at all illegal as alleged, but the defendants No.1 and 2 issued notices for demolition after laying the roof, so the defendant No.3 filed suit in O.S.No.5225/2001 on the file of V Junior civil Judge, City

Civil Court, Hyderabad and the said court was pleased to grant injunction in I.A.No.796/2001 dated 5.11.2001 against which the plaintiff filed CMA 127/2002 and that CMA is also dismissed on 25.10.2002 by XIV the Addl, Chief Judge, City Civil Court, Hyderabad (FTC) and submitted that not only this the plaintiff got filed CMA

No.126/2002 through defendants No.1 and 2 against the above said order and the said appeal filed by MCH is also dismissed on the same date and submitted that the defendant No.3 came to know about the notice issued by him to MCH, when the copy of the plaint is received and copy of the notices are provided, from the very act on the part of the plaintiff is clear, that, he is bent upon to create harassment and loss to the defendant No.3 by filing suit after suit but it is a fact that he did not issue any notice to this defendant, and so far filing of the suit by this defendant, this defendant nothing to say. The allegations made by plaintiff are nothing, but made up stated only to file the present suit. It is also false that the construction made by 3rd

**12** A.S.NO.365 OF 2009

defendant effect any way so called rights of privacy of lights and air and the construction made with the consultation of the engineer with the advises and supervision of the experienced engineers and also submitted that the defendants No.1 and 2 in their written statement and counter are not binding upon this defendant. The plaintiff got filed written statement and counter by influencing MCH authorities but that has to be decided by the court in

O.S.No.5225/2001 and defendant No.3 filed O.S.No.5225/2001

against the municipality and obtained injunction order against which the municipal corporation of Hyderabad preferred CMA and it was dismissed and also submitted that the act on the part of plaintiff clearly states that to create harassment or loss to the defendant

No.3 this suit is filed, apart from that the plaintiff has no locus standi to file suit, hence the suit is liable to be dismissed and sought for trial.

6.Basing on the above rival contention the trial court framed the following issues for trial:

i. Whether the construction made by the defendant i.e, first floor of H.No.22-8-512/11 is unauthorized, illegal and against the sanction of MCH?

ii. Whether the plaintiff is entitled for mandatory injunction seeking demolition of construction of entire first floor?

iii. To what relief?

6.The following additional issue was framed on 26.09.2003 which is No.4:

**13** A.S.NO.365 OF 2009

iv. Whether the sanction granted by MCH in 1979 had expired?

But it has not reflected in judgment O.S.No.6428/2001 dated 19.4.2005 by the predecessor of the trial court and after re-framing and after hearing again the trial court famed additional issue on 27.07.07 as Whether the sanction given by MCH 1979 is expired?

7.To substantiate the case of the plaintiff, PW1 was examined and Exs.A1 to A40 were marked. On behalf of defendants, DW1 and

DW2 were examined and Ex.B1 is marked.

8.After hearing both the parties and after considering the entire evidence on record, the trial court decreed the suit as prayed for.

Aggrieved by the same the plaintiff in the trial court even though the suit is decreed in favour of plaintiff surprisingly preferred the present appeal on various grounds challenging the decree and judgment

dated 07.05.2009 passed by the I Add. Rent Controller cum XIII

Junior Civil Judge, City Civil Court, Hyderabad.

9.Heard the counsel for the appellant, who filed the written arguments and though sufficient time is granted the respondent Nos 1 & 2 failed to submit the arguments. Respondent Nos. 3 & 4 remained exparte.

10.The learned counsel for the appellant would submit that the word 'staircase' was added in the word 'construction' as per orders in

IA No. 2588 of 2011 and submitted that Ex A.14, A.23, A.34, A.35,

A.36 A.39 & A.40 and also would submit that the construction includes staircase dt. 16.07.2001 and argued that the respondent

**14** A.S.NO.365 OF 2009

failed to demolish the staircase and also submitted that complete demolish ion of respondents stair case. i) Respondents attached wall ii) to the appellant and the respondents remaining roof iii) on roof of their ground floor is not shown by GHMC by photos and alleged that this is dishonesty and dis-integrity of GHMC and also alleged that in violation of the Hon'ble High Court Order to demolish completely, all walls existing to the date on roof of ground floor of respondents were not demolished completely by the GHMC and alleged that this is a contempt of court, ab initio and also alleged that the remaining roof at first floor of the respondents is not yet demolished completely and submitted that it is not yet demolished completely, in violation of Hon'ble High Court order to demolish completely and submitted that it is not joint wall i.e by joining two independent walls. Definition of 'joined' and 'common' are not explained by GHMC and respondents and also alleged that this is incorrect and false.

This is judicial understanding or and misunderstanding of the lower court that is why the lower court did not mention ground or first floor, to create suspicion and distract. With particular objective, it was kept uncertain and indefinite for Appellate Court. As per Hon'ble

A.P High Court, suppression of fact or reality is fraud and also submitted that GHMC did not produce any document showing common wall of the respondents at first floor of the appellant. Lower

Court without proof, believed GHMC and without seeing any document which amounts to violation of principles of Natural Justice and the appellant tried to convince the mind of the court to bring the fact that common wall or shared walls including staircase and relied

**15** A.S.NO.365 OF 2009

on Godavari Baig case in 1971 (1) ALT 147, 152, 154 and submitted that even if no set back is left on the ground floor and it has to be left while constructing first floor or any other floor higher up. The learned Rent Controller did not correctly appreciate this ruling and erroneously held that no set back is necessary for the first floor attached wall of the respondents herein while construction his first floor north wall 7” breadth constructed by his predecessor owner in

April,1987 is not common wall at first floor and also one of the ground is that the lower court should have ordered for demolition of the staircase raised recently in July, 2001 without commencement notice and without MCH permit leading from ground floor to first floor as it is any set back area in ground floor.

11.In view of the above grounds of appeal and written arguments now the point that arises for consideration is

1) Whether the trial court finding regarding non-inclusion of the staircase under the purview of a common place is valid and binding on the parties?

2) To what relief?

12. POINT No.1 :- The case of the appellant is that the appellant is the owner of northern side to the respondent Nos. 3 & 4 house and a common wall is erected between the appellant and the respondent

Nos. 3 & 4 and at the time of making erections on the common wall the appellant raised objection by intimating the same to the respondent Nos. 1 & 2 authorities and also when the respondent

Nos. 1 & 2 failed to initiate any steps, the appellant preferred a Writ

Petition before the Hon'ble High Court of A.P and also filed various

**16** A.S.NO.365 OF 2009

suits for various reliefs and earlier the suit was decreed and subsequently the matter went to the appellate court and again the matter sent back to the trial court for re-appreciation of evidence by taking additional issues and after framing of the additional issues again the suit was disposed off by the trial court. Earlier Exs A1 to

A.36 are marked and subsequently four documents were added and the trial court after hearing the parties on record and after appreciation of the evidence decreed the suit in favour of the appellant herein by relying on the evidence of Pw.1, Dw.1 and DW.3 and also Exs A.1 to A.40.

13.Ex A.1 is a sale deed dt. 04.05.1992 in the name of the plaintiff and his vendor wherein one Masuma W/o Mohd. Ali Ahmed being vendor executed the sale deed in the name of the plaintiff herein. Ex

A.2 is a complaint dt. 12.07.2001 to the Dy. commissioner, MCH regarding the illegal construction by neighbours. wherein as per para 4 it is clearly mentioned that “as the roof slab is common, demolition will affect my roof and the building over it. There is every likelihood that my building will collapse” . It seems that the neighbour is not leaving any set back and also opening windows, ventilators etc., which will affect my privicy, air and light. It will affect my easementary rights of air, light and privacy and drainage. Drainage line from my house passes through his house”. Under Ex A.2 it is not complaint about the construction of stair case. Ex A.3 is also dt.

12.07.2001 addressed to the Asst.City Planner, which runs in the same lines. Ex A.4 is addressed to the Commissioner of MCH it is also for complaining illegal construction. Ex A.5 is also addressed to

**17** A.S.NO.365 OF 2009

Additional Commissioner of MCH in the same lines, Ex A.6 is dt.

29.08.2001, Ex A.8 is application to the Commissioner, MCH dt.

18.07.2001, Ex A.9 is rough plan, Ex A.10 is a photo, Ex A.11 is letter addressed by Asif Mahmood i.e defendant No.3 for renewal of the sanction plan. Ex A.12 is permission letter, Ex A.13 is a photo, Ex

A.14 is a copy of the order dt 10.09.2001 by the Hon'ble High Court of A.P, Ex A.15 is a copy of the permission letter addressed by the defendant No.3, Ex A.16 is notice issued by the MCH to the defendant No.3, Ex A.17 is a legal notice dt. 13.09.2001 addressed by the counsel for the plaintiff to the MCH under Section 685 of HMC

Act. Ex A.18 is postal receipt, Ex A.19 is the postal acknowledgment,

Ex A.20 is the proceeding issued by MCH to the plaintiff regarding the intimation of pendency of the proceedings, Ex A.21 is copy of the acknowledgment to the defendant No.3, Ex A.22 is counter affidavit in IA No. 796/01 in OS No.5225/01, Ex A.23 is written statement filed by the municipal authority in OS No.5225/01, Ex A.24 is a copy of the graph, Ex A.26 is the Commissioner's report in IA No. 1565/01 in OS

No. 5928/01, Ex A.27 is a photo showing the construction, Ex A.28 is also photo, Ex A.29 is judgment in CMA No. 264/01, Ex A.30 is decree copy in CMA No. 126/02, Ex A.31 is decree in CMA No. 127/02, Ex

A.32 is order copy in CMA No. 126/02 and CMA No. 127/02, Ex A.33 is order in IA No.262/02 in CMA No. 127/02, Ex A.34 is order copy in AS

No. 371/05, Ex A.35 is a decree copy in AS No. 371/05, Ex A.36 is order copy in WP No. 11705/06, Ex A.37 is judgment copy in OS No.

5225/01, Ex A.38 is decree copy in OS 5225/01, Ex A.39 is judgment copy in OS No. 3954/01, Ex A.40 is decree copy in OS No. 3954/01.

**18** A.S.NO.365 OF 2009

14.The grievance of the appellant herein is that the trial court failed to include the staircase in the decree and judgment. In view of the same, this court verified the entire pleadings of the plaintiff carefully to know whether the suit is framed by the plaintiff including the relief of staircase in the plaint. As per averments of the plaint, the plaintiff is the absolute owner and possessor of House No. 22-8- 512/11-A, Koehay Khateeb, Purani Haveli, Hyderabad. He purchased it under sale deed dt.04.051992 registered as document No. 882/92 and the adjacent house on the northern side of the plaintiff's house is 22-8-512/11, Koehay Khateeb, Purani Haveli, Hyderabad which was owned by Kaleemullah Baig who expired on 29.03.1998 and the defendant Nos. 3 & 4 are the some of the heirs of the said deceased and they are now in possession of the suit schedule property. Both the said houses were constructed as a composite building by late

Kaleemullah Baig. The southern portion of it was sold to vendor's vendors of the plaintiff. As such the wall intervening both the house is one and the roof laid over these two houses is one common RCC slab. The walls of both the houses are made of mud and brick and have no pillars. The houses were constructed 35 years ago in 1966.

The house of the plaintiff is a double storied house. The house of the defendants was not having first floor before 16.07.2001. Two rooms of the plaintiff have wall common with the defendant Nos. 3 &

4. The defendant Nos. 3 & 4 wanted to construct first floor on the existing slab by attaching their wall to the wall of the plaintiff and by chiselling it. The plaintiff objected to the said construction. They chiselled the ground floor wall and para 8 is added as per orders in

**19** A.S.NO.365 OF 2009

IA No.2588/2011 on 09.11.2011 which runs as the plaintiffs objection

was that the defendant Nos. 3 & 4 should have a set back of 11” from the wall of the plaintiff and they should have obtained sanction plan from the Municipal Corporation of Hyderabad but they did not care to the plaintiff's request and started chiselling ground floor common wall.

15.On the other side the construction viz., staircase commenced on 16.07.2001 and they made several challenges in the ground floor and damaged the intervening wall which resulted in 5 cracks in the ground floor common wall and one crack in the roof of the ground floor. All these six cracks appeared between 01.08.2001 and 31.08.2001. Two cracks in first wall appeared recently. These cracks appeared in both the rooms of the ground and first floor. The photos taken on 0.08.2001, 10.08.2001 and 17.08.2001 showing the cracks will be filed later on the ground that they filed another case between the same parties and runs that the plaintiff complained the same to the defendant Nos. 1 & 2 and due to the in action of the defendant Nos. 1 & 2 the plaintiff approached the Hon'ble High Court by filing WP No. 18758 of 2001 against that the defendants with a direction to take action under law and to remove the illegal construction made by the defendant Nos. 3 & 4 and ultimately sought the declaration of the construction of the suit schedule property i.e first floor of House No. 22-8-512/11, Koehay Khateeb,

Purani Haveli, Hyderabad and of not leaving the set back space of 11” from the northern wall of the plaintiff' 22-8-512/11-A, Koehay

Khateeb, Purani Haveli, Hyderabad is illegal, unauthorized and

**20** A.S.NO.365 OF 2009

without sanction of the Municipal Corporation of Hyderabad against the provisions of the HMC Act, 1955 Rules and bye-laws thereunder and is liable to be demolished and also to pass a mandatory injunction against the defendant Nos. 1 to 4 to demolish whole of the construction of the first floor of House No. 22-8-512/11, Koehay

Khateeb, Purani Haveli, Hyderabad and alternative to demolish it, so as to leave a set back of 11” from the first floor of the house No. 22- 8-512/11-A, Koehay Khateeb, Purani Haveli, Hyderabad of the plaintiff.

16.Except the inclusion of the staircase in the main construction rest of the findings are not disputed and the defendants also did not challenge the findings in OS No. 6428/2011. Hence all the findings recorded by the Trial Court in OS No. 6428/11 became final. Now the only grievance of the plaintiff is that the staircase is also part and parcel of the construction which is to be considered by the Trial

Court. The Trial Court failed to consider the staircase as part and parcel of the construction. As per the pleadings earlier the staircase was not included and subsequently it is included in the pleadings only but it is not included in the prayer portion of the plaint. This is why prima facie it appears that the trial court failed to consider the same on the ground that the suit is decreed accordingly in favour of the plaintiff which amounts the Trial Court accepted the reliefs as prayed for. But the appellant failed to make the relevant amendments in the prayer portion also by giving sufficient notice to the respondents/defendants to adduce evidence to that affect also.

But it is not made by the plaintiff. Now the plaintiff insisted for the

**21** A.S.NO.365 OF 2009

inclusion of staircase and it is not the case of the plaintiff earlier.

Now the plaintiff intends to raise the objection under the guise of inclusion of the staircase for it's removal which appears which is a new case changing the nature of the plaintiff's case without making amendment to the prayer portion by giving an opportunity to the respondents/defendants to make their own defence to that affect. It is very silent in the evidence of Pw.1, Dw.1 & Dw.2. Hence the relief cannot be considered at this stage and to that affect the plaintiff has to take his own recourse for the particular relief. At this stage the relief cannot be granted and there is no fault at the findings of the

Trial Court and the finding is according to the pleadings excluding the inclusion of the staircase in construction when it is not pleaded by the plaintiff specifically in the prayer by making necessary amendment, the court need not pass such kind of orders impliedly.

Hence there are no grounds to interfere in the decree and judgment of the Trial Court.

17. ISSUE No.2 :-In the result, the appeal is dismissed. There shall be no order as to costs.

Dictated to the Stenographer, transcribed and typed by him,

corrected and pronounced by me in the open court on this the 22nd day of June , 2015

Sd/-

(D.THIRUMALA RAO)

III ADDL.CHIEF JUDGE

CITY CIVIL COURT: HYDERABAD

APPENDIX OF EVIDENCE

NIL Documents Marked NIL Sd/-

(D.THIRUMALA RAO)

III ADDL.CHIEF JUDGE

CITY CIVIL COURT: HYDERABAD

1AS 357­10 & AS 397­10

IN THE COURT OF THE III ADDITIONAL CHIEF JUDGE : CITY CIVIL

COURT : HYDERABAD

DATED THIS THE 22 nd DAY OF JUNE 2015.

PRESENT : SRI D. TIRUMALA RAO, M.A.,LL.B.,

III ADDL. CHIEF JUDGE.

AS. No.357 of 2010 AND AS. No.397 of 2010

AS 357 OF 2010

Between :

1. Vijayalakshmi

2. Brij Mohan Tiwari ..Appellant/Plaintiffs

AND

Sri Gurunath Dixit ..Respondent/Defendant

AS 357 of 2010 is filed against the decree and judgment dt. 01-06-

2010 on the file of III Junior Civil Judge, City Civil Court,

Hyderabad in O.S.76 of 2005

Between:-

1. Smt. Vijayalakshmi

2. Brij Mohan Tiwari .. Plaintiffs

AND

Sri Gurunath Dixit ..Defendant

AS 397 of 2010

Between :

1. Smt. Vijayalakshmi

2. Brij Mohan Tiwari ..Appellant/Plaintiffs

AND

Sr i. Gurunath Dixit

..Respondent/Defendant

AS 397 of 2010 is filed against the decree and judgment dt. 01-06-

2010 on the file of III Junior Civil Judge, City Civil Court,

Hyderabad in O.S.4726 of 2003

Between :

Sr i.Gurunath Dixit ..Plaintiff

AND 2AS 357­10 & AS 397­10

1. Smt. Vijayalakshmi

2. Brij Mohan Tiwari ..Defendants

This appeal is coming before me for final hearing in the presence of

Sri G.ARUN advocate for the appellant, and Sri M.N.BUNG Respondent respectively in both the appeals and the matter having stood over till this day for consideration and this Court delivered the following :

COMMON JUDGMENT

1)These two Appeals filed by the appellant assailing the decree and common judgment dt. 01-06-2010 on the file of III Junior Civil Judge, City

Civil Court, Hyderabad in OS. No.76 of 2005 and OS. No. 4726 of 2003.

These two appeals are made over to this court for final disposal. The parties are arrayed as parties before the trial court in OS No. 76 of 2005 from herein after for the convenience.

Reliefs in OS No.76 of 2005.

I).To declare memorandum of understanding between both parties as void regarding in O.S. No.4009/2002.

II).To declare the plaintiffs herein are absolute owners and possessors of

Northern side compound wall. No. 4-1-641.

iii). To grant perpetual injection restraining the defendants herein from interfering in peaceful possession and enjoyment of Northern side compound wall on 4-1-641 of the plaintiff.

IV). To grant mandatory injection against the defendants herein to demolish their wall and slab of room of first floor staircase.

Reliefs in OS No.4726 of 2003.

I).To direct the defendant therein to raise 9 inch wall to height of 10 feet 3AS 357­10 & AS 397­10 adjoining and abutting Southern wall of plaintiff's premises bearing No. 4-1- 584/2 directing the defendants to close and cover up all balconies in terms of memorandum of settlement and understanding and in terms of memorandum of compromise in OS. No.4009 of 2002.

II). To perpetually restrain the defendants therein from making any construction in premises bearing No. 4-1-641 till the defendants comply with memorandum of understanding.

III).To restrain the defendants therein from undertaking any repairs of

Southern wall of plaintiff's premises bearing No. 4-1 584/2.

IV).For damage of Rs.25,000/- (Rupees twenty five thousand only) be decreed at the rate of 24% from date of suit till realization against the defendants.

2) The brief facts of the plaintiff's case in OS No. 76 of 2005 are that the plaintiff No.2 is the husband of plaintiff No.1 and he is the absolute owner of house bearing No. 4-1-641, Hindustani Galli, Street No.8, Troop

Bazar, Hyderabad. Originally Ladharam Ghan Shyam Das and Kanyalal have purchased the said house in auction conducted under Displaced

Persons (Compensation & Rehabilitation) Act, 1954 and they sold the property to Durga Prasad under Regd. Sale Deed bearing No. 1219/1959

dt. 22.05.1959 and Durga Prasad sold the same to Laxman Prasad under

Regd. Sale Deed dt. 09.12.1971, who is the father of the plaintiff No.1 and he bequeathed the said house by will in favour of the plaintiff No.1.

Therefore the plaintiff No.1 is absolute owner and possessor of the suit property and in the plan annexed to sale deed dt. 25.05.1959 which shows that there is a compound wall existing all round the house since 1959 and that the roof of residential house is covered by asbestos sheets and the 4AS 357­10 & AS 397­10 asbestos sheets are resting on the compound wall, all around the house.

The defendant is resident of H No. 4-1-584/2, abutting the northern side compound wall of the plaintiffs and the plaintiffs house is enclosed with compound wall all around with a gate on the western side opening on to the main road and the structure has become dilapidated, the plaintiffs applied for permission to the Municipal Corporation to construct a new house and the plaintiffs have demolished the old house but retained the compound wall all around the house for protection for the new house being built. The officials of the MCH have visited the premises and took possession of 5 feet all along the road, for road expansion on the western side, facing the main road as it was one of the conditions for grant of permission and they demolished the compound wall on the Northern side of the plaintiffs house abutting the defendant's house to an extent of 5 feet for expanding the road and the municipality after taking 5 feet granted permission for construction of ground plus two floors vide permit No.7/23 vide file

No.641/1/4/2002 dt. 25.04.2002.

3)The plaintiffs laid first floor and wanted to demolish the old compound wall which is 18” thick on the northern side abutting the house of the defendant and build a new compound wall of 9” thick in place of old compound wall and the defendant in order to grab the northern compound wall of the plaintiffs complained to the municipality making false allegations that the plaintiffs are deviating from the plan sanctioned by the MCH for construction of the house and the defendant is a poojari in a temple and he is influential in the locality and the defendant used his influence as such the municipal authorities started harassing the plaintiffs and interfered in construction of house and the plaintiffs were compelled to filed OS No.4009 5AS 357­10 & AS 397­10 of 2002 against the Municipal authorities for grant of perpetual injunction restraining the municipality from interfering with construction of the plaintiffs and the defendant was impleaded in the suit as defendant and the plaintiff brought to the defendant notice that he has violated the MCH rules and constructed a room illegally on the first floor touching the northern side compound wall and also stair case leading to the first floor touching the northern compound wall of the plaintiff thereby obstructing their easementary right to natural light and air and the matter was agreed to settle the difference among themselves and as per the agreement the plaintiffs agreed to demolish the old northern side compound wall and build a new compound wall of 9” thickness at their own expenses and the plaintiffs also agreed not to raise any construction on their balcony in order to block air and light to the defendants' property and the plaintiff agreed only to raise a parapet wall of 3 feet height on the balcony in order to protect the persons walking in the balcony.

4)On 11.11.2002 the plaintiffs at the request of the defendant went to his counsel office and compromise is being drafted and the defendant became very agitated and threatened the plaintiffs that if they do not sign the compromise immediately he will use influence and see that the

Municipal authorities demolish their house on the next day and the plaintiff believing the version of the defendant that the MOU settlement is prepared as per terms agreed upon between them and also due to fear that the defendant may get their house demolished by municipality as threatened by him, have signed the MOU. After the compromise was recorded, the defendant started chipping the northern side compound wall of the plaintiff and the plaintiff objected the same and in the MOU it was incorporated 6AS 357­10 & AS 397­10 that the plaintiff shall not keep any openings of balcony, windows or ventilators towards the northern side and the plaintiff realized that they had signed the compromise based on the misrepresentation and coercion of the defendant without understanding the implications of the terms of the MOU dt.11.09.2002 and compromise dt.18.11.2002. The plaintiffs immediately objected to the terms and informed the defendant that they had signed

MOU and compromise without their free consent under misrepresentation, coercion etc., and the defendant withdrew OS No.4009 of 2002 and as per the terms agreed and the plaintiffs started construction of parapet wall over the balcony on the firsts floor, the defendant objected to the said construction and when the plaintiffs brought to the notice of the defendant that if they construct wall on the balcony it will result in the closing of windows and doors on the northern side, the result of which would be the denial of easementary right of the plaintiff for enjoyment of natural light and air and the defendant with an intention to grab the northern side compound wall of the plaintiff abutting the defendant''s house has filed OS

No.4726 of 2003 and the compound wall is more than 80 years old and is in a dilapidated condition. Therefore, the plaintiffs may be permitted to demolish the northern side compound wall immediately and the plaintiffs have no other remedy except to approach the court for a declaration of ownership, mandatory injunction and perpetual injunction against the defendant.

5)The defendant filed a detailed written statement contending that the suit is not maintainable either under law or on facts.

6)It also contended that the defendant has no knowledge about the 7AS 357­10 & AS 397­10 purchase of house mentioned in the plaint and also denied that the house of the plaintiff is enclosed with compound wall all around the gate on the western side opening on to the main road and for the purpose of new construction the plaintiff demolished the entire house and denied that the plaintiff while demolishing the old house retained the alleged compound wall all around the house and while construction the plaintiff raised the pillar to the distance of 4 feet from the southern wall of defendant and the defendant did not raise any objection and the plaintiff completed the construction upto the roof level on the ground floor and the plaintiff laid roof of ground floor covering the three feet opening space i.e balcony of three feet towards northern side of the plaintiffs premises i.e towards southern side of the defendant's premises and as the said balcony was just opened towards the defendant's premises, the defendant raised objection and requested them not to make such unauthorized construction and the defendant has no other go except to file complaint with Municipality against the plaintiff. On the compliant the MCH issued notice for demolition of the construction to the plaintiffs. But the plaintiffs filed OS No.4009 of2002 against the MCH and obtained exparte injunction. The MCH has granted permission for construction of ground plus two floors vide permit No.7/23 and the plaintiffs went on making the construction in contravention of the sanction plan against the sanction plan and the MCH issued notice for demolition and denied that he wanted to grab the compound wall of the plaintiffs and filed complaint to the MCH and it was agreed that the plaintiffs shall construct their own new wall adjoining the southern side wall of the defendant and further agreed while constructing the 9” thick wall abutting southern side of the defendant's wall, the plaintiffs shall not cause any kind of damages to the southern side wall of the defendant and a 8AS 357­10 & AS 397­10 compromise was agreed and the plaintiffs committed breach of MOU and denied that the plaintiff is absolute owner and in possession of the alleged compound wall of 18” admeasuring 8 sq Yd on the northern side of the plaintiffs house abutting the defendant's house and that no such wall is existing and the suit is bared by Order 23, CPC and denied that the defendant constructed room on first floor and stair case abutting the northern compound wall of the plaintiffs blocking any easementary right or natural right and air or violating rules of MCH and denied any such room in the first floor or stair case has been constructed illegally and there is no cause of action to file the suit.

7)Having considered the above rival contentions the trail court framed the following issues for trail.

I)Whether the memorandum of settlement cum understanding dated 11-09- 2002 and compromise dated 18-11-2002 is void and unenforceable as against plaintiff as prayed for.

II)Whether plaintiffs are entitled to declare as owners and possessors of

Northern side compound wall as prayed for.

III) Whether the plaintiffs herein are entitled to obtain perpetual injunction,as prayed for.

IV) Whether defendant is liable to demolish the wall and rooms at first floor and staircase as prayed by the plaintiff.

V)To what relief?

8) The brief facts of the plaintiff's case in OS No.4726 of 2003 are that.

the plaintiff is the owner and possessor of property bearing No.4-1-584/2 9AS 357­10 & AS 397­10 situated at Hindustan Galli, Troop Bazar, Hyderabad consisting of ground, first and second floors and the defendant is owner and possessor of house bearing No.4-1-641, situated at Troop Bazar, Hyderabad and the plaintiff has his own southern wall running from East to West and the defendant completely demolished their house bearing No.4-1-641 situated at Troop

Bazar, Hyderabad for purpose of construction of new building i.e commercial cum residential complex and wanted to construct ground and first floor and the defendants while commencing the construction raised pillars for their house at the distance of four feet abutting the southern wall of the plaintiff's property and even though the defendants were making unauthorized and illegal construction, plaintiff did not raise any objection and accordingly the defendants have completed the construction upto the room level and the defendants suddenly without any authority covered the open space left in the ground floor and constructed the balcony about three feet width towards their northern side and towards the southern side of the plaintiff's premises and the said balcony was abutting and touching the plaintiff's premises and the said balcony was abutting and touching the plaintiff's premises i.e touching the southern wall of the plaintiff and plaintiff raised objection, but the defendants with oblique motive continued the construction and laid the room of the first floor in the similar way like the ground floor, opening the balcony towards the premises and the plaintiff lodged a complaint before MCH and the defendants filed OS No.

4009/2002 against MCH and the defendants approached the plaintiff for compromise and settlement of dispute and the matter was compromised between the parties.

9)The defendants raised the balcony which is touching the plaintiff's 10AS 357­10 & AS 397­10 wall and defendant further agreed that they will cover the entire balcony i.e ground, first and second floors or any upper floor by raising the parapet wall across the entire balcony or by raising the brick wall on each balcony and there shall not be any kind of openings in the said balconies towards the plaintiff's premises and that instead of covering the balcony they further started further construction of upper floor in the said premises illegally without any permission and the defendants have committed breach of condition and the plaintiff is now entitled to raise the objection and to file complaint with MCH for unauthorized construction raised by the defendants and the defendants committed breach of settlement, the plaintiff is entitled for the relief of mandatory injunction and if the defendants complete the unauthorized construction the plaintiff will put to irreparable loss and injury and under the settlement the defendants agreed that in case they caused damage to the wall of the plaintiff, they will be liable to pay the damages and there is every chance of collapsing of the wall of the plaintiff and as such the plaintiff is entitled for perpetual injunction restraining the defendants from interfering into the repair of the southern wall of the plaintiff.

10)The defendant filed a detailed written statement contending that the suit is not maintainable either under law or on facts.

11)It also contended that the plaintiff is not of the owner of the plaintiff

House No.4-1-584/2 and that the defendant is the absolute owner and possessor of H.No.4-1-641, Troop Bazar Hyderabad and the said house was purchased by Ludharam Ghan Shyam and Kanyalal and inturn they sold the said property to Durga Prasad under regd. sale deed dt. 25.05.1959 and 11AS 357­10 & AS 397­10

Durga Prasad sold the property to Laxman Prasad as per sale deed dt.

09.12.1971 and the Laxman Prasad is the father of the defendant and has bequeathed the said house by will in her favour and the main structure of rooms with asbestos sheets resting on the compound walls was demolished as the defendant wanted to construct new building and the MCH imposed the condition of surrender of 5 feet facing the main road i.e on the western side of the defendants house to the municipality for road expansion and the petitioner was an ill motive to grab the compound wall of the northern side of the defendant started making false complaints to the municipal authorities and the defendant was compelled to file a suit against the municipality and the petitioners bearing OS No.4009 of 2002 and the defendant and her husband also agreed not to raise any construction on the balcony and all the allegations that are not specifically dealt with herein are denied and the plaintiff is put to strict proof the same and there is no cause of action to file the suit and prayed to dismiss the suit with costs.

12)Having considered the above rival contentions the trail court framed the following issues for trail.

I). Whether there is jural relationship as owner and tenant between the parties.

II). Whether plaintiff is entitled to injunction as prayed for.

III). To what relief?

13)The trail court to decide the both cases recorded common evidence in

OS No.76 of 2005 by clubbing OS No.4726 of 2003. To substantiate the case

of the plaintiff in OS No.76 of 2005 PW1, PW2 are examined. EX A1 to A10 and EX.X1 plan are marked for the plaintiff. DW1 is examined for the 12AS 357­10 & AS 397­10 defendant and EX B1 to B3 are marked for the defendant in OS No. 76 of 2005.

14)The trail court having perused the written arguments filed by both the parties,having perused the material evidence available on record and having perused the documentary evidence available on the record,partly decreed OS No.76 of 2005 holding memorandum of understanding is unenforceable against the plaintiffs herein and thereby declared the plaintiffs as owners of Southern side wall of the premises bearing No. 4-1- 584/2 that is the Northern side of the wall of the premises Bearing No. 4-1-

641. Perpetual injunction is also granted in favour of the plaintiff in OS

No.76 of 2005 restraining the defendant herein from interfering with peaceful possession and enjoyment of the Southern side of wall of H. No. 4- 1-584/2 and dismissed the prayer for mandatory injunction.

15)OS No.4726 of 2003 is partly decreed directing the plaintiff in OS No.

76 of 2005 to construct wall of 9 inches on the Northern side wall of plaintiffs property Bearing No. 4-1-641 to an extent of 10 feet and also granting perpetual injunction not to make any further construction unless the plaintiff in OS No. 76 of 2005 complies with the terms of memorandum of understanding under EX A-1 and A-2. However,the other prayers of the plaintiff in OS No.76 of 2005 are dismissed.

16)Aggrieved by the same the plaintiffs in OS No.76 of 2005 and the same are defendants in OS No.4726 of 2003 preferred the present appeals assailing the same on various grounds.

13AS 357­10 & AS 397­10

17)I have heard the counsels for both parties. I have perused the written arguments filed by the respondents counsel in both appeals. In view of the common subject between the parties,in view of the common judgment passed by the trail court,this court delivered the common judgment in both the appeals.

18)In view of the challenging of issue No.1 and 4 in OS No. 76 of 2005 and in view of the challenging of issue No.2 in OS No. 4726 of 2003 the rest of the findings became final. Hence now the points that arise for consideration are

I).Whether the memorandum of settlement cum understanding dated 11- 09-2002 and compromise dated 18-11-2002 is void and unenforceable as against plaintiff as prayed for?

II). Whether defendant is liable to demolish the wall and rooms at first floor and staircase as prayed by the plaintiff?

III).Whether plaintiff is entitled to injunction as prayed for?

IV).To what relief?

19) POINT No.1:- Undisputed fact is that originally one Ghan Shyam Das was the original owner of the house and he sold the property to Durga

Prasad by Registered Sale Deed dt.25-05-1959 under EX A-3 and A-4 is planning annexed to it and the said Durga Prasad sold the same to Laxman

Prasad vide Sale Deed Bearing No. 4137/1971 dt. 09-12 1971 and the

Laxman Prasad bequeathed the property to the first plaintiff by way of will and from the date of execution will and also from the date handing over the possession, the plaintiffs have been enjoying the suit schedule property. It 14AS 357­10 & AS 397­10 is also stated that suit schedule property has been surrounded with a compound wall and the Northern neighborer is the defendant herein. It is also admitted fact that when the plaintiff started construction over the suit schedule property and regarding the Northern wall a dispute arose between the plaintiffs and the defendant and with the intervention of the Municipal

Corporation of Hyderabad the matter went up to filing of OS No. 4009 of 2002 on the file of III Junior Civil Judge and the matter ended with a compromise and the suit is decreed in terms of compromise.

20)Now, the case of the plaintiff is that the plaintiff herein is challenging the memorandum of understanding and the terms of compromise on the ground that it is entered between the plaintiffs and the defendant due to misrepresentation, coercion,undue influence by the defendant. To prove the case of the plaintiff the first plaintiff is examined as PW1 and PW2 is also examined and also EX A-1 to A-10 and EX. X1 plan are marked for the plaintiffs. PW1 reiterated the entire contents of pleadings. Whereas the case of the defendant is that the compromise was entered freely without any coercion,misrepresentation,undue influence and got marked EX B-1 to

B-3 and PW1 was examined for the defendant who reiterated his entire case by way of chief affidavit. In view of the same when any party pleads coercion,undue influence and misrepresentation then the entire burden is on that party. Here is a case where in the plaintiff pleads the same hence the entire burden is on the plaintiff.

21)PW.1 speaks about EX A-1 to A-10 and EX.X1. EX A-1 is memorandum of understanding. EX A-2 is Memo of compromise. EX A-3 is Certified Copy of sale deed. EX A-4 is Plan. EX A-5 is Original translation of sale deed. EX 15AS 357­10 & AS 397­10

A-6 Sale deed. EX A-7 Plan annexed to Ex A-6. EX A-8 Certified Copy of will deed. EX A-9 Certified Copy of Judgment and decree in O.S. No. 2075/1995.

EX A-10 Nine Photos. EX.X1 Plan.

22)During the cross of PW.1, PW.1 admitted that she was aware of system of recoding compromise in the court. She also admitted about the dispute between the plaintiff and defendant and also admitted about the compromise between them in the presence of Padma Rao and others. She admitted the preparation of memorandum of settlement and her signature on it. She also admitted about EX B-1. She also admitted about the signatures on EX A-1 and EX A-2. She denied the suggestion that she put the signature only after hearing the contents of EX A-1 and A-2 in the presence of her husband and also in the presence of her advocate. She also admitted that she did not file any application to challenge the memorandum of understanding and the terms there on. PW.2 stated to be the son of her fathers vendor who spoke about the sale transaction between the father of the first plaintiff and his father which is undisputed.

23)It is pertinent to read the contents of EX A-1 and A-2 at this stage. EX

A-1 is executed between the plaintiff and defendant herein. The defendant herein is the first party and plaintiffs are second party. It is executed on 11- 09-2002. The document is in the name of second plaintiff and purchased for the first plaintiff. It contains various terms EX A-2 is Memorandum of

Compromise dated.18-11-2002.It also contains various terms and the same is recorded in OS No.4009 of 2002 and the suit is ended in terms of compromise. EX B-1 Certified Copy of plaint in OS No. 4009 of 2002. EX B-2

Memorandum of Compromise is similar to EX A-2 . EX B-3 is Memorandum 16AS 357­10 & AS 397­10 of understanding is similar to EX A-1. The suit is filed in the year 2005 after recording the compromise in OS No. 4009 of 2002 on 18-11-2002 which is a considerable time and if the plaintiff felt the fraud she could have filed very earlier stage and mostly she filed the suit only after filing of OS No. 4726 of 2003 which shows it is after taught to counter blast to the suit in OS No.

4726 of 2003. As such the trail court rightly held the issue in view of the terms under order 23 Rule 3(a) and the same is supported by the rulings of our high court in 2014 (2) ALD 346 in K. Krishna Kumar another vs.

K. Radha Krishnayya and also the same is supported by our own High

Court in another ruling reported in 2013 (4) ALD 500 in Hindi Re-Rolling

Industries,Hyderabad and others vs. Muktar Steels Pvt.

Ltd.,Hyderabad and others. In view of the principle in the above rulings the party cannot file a suit against the compromise decree which is barred under order 23 Rule 3(A) C.P.C as per the Amendment to the C.P.C. More over the plaintiff failed to prove the face of coercion with cogent and convincing evidence as rightly held by the trail court and now it can not be permitted to agitate in this case which is barred as res judicata and the principle of estoppal operates against the plaintiff's. Accordingly this point is answered against the appellants.

24) POINT No.2 :- As far as this issue is concerned the plaintiff failed to adduce any evidence to establish the fact that the defendant deviated in construction to the sanctioned plan as rightly decided by the trail court and moreover the plaintiff entered into a compromise with the defendants which dilutes the case of the plaintiffs. Except the photographs there is no other evidence to establish the fact that the defendant encroached into the plaintiffs site and made the construction over the plaintiffs wall. The 17AS 357­10 & AS 397­10 plaintiff also could have got the services of the surveyor to demarcate the land to ascertain the boundary dispute. However the plaintiff miserably failed to prove hence they are not entitled to the relief. Accordingly this point is answered against the appellant.

25) POINT No.3 : - The terms under EX A-1 and A-2 are very relevant to decide this issue. The stipulation under 3 and 4 in EX A-1 reads as follows:

3.It is further specifically agreed in case if the part of the second part commits breach of this condition beside they will liable for damages,the party of first part will be entitled to get mandatory injunction immediately from the court of law and get the said closed.

4.Party of the second part there by further agreed that there will construct the wall 9” adjoining to the Southern side wall of the party of the first part premises upto the height of 10 ft. It is further specifically agreed that while constructing the said wall party of the second part shall not cause any damage to the Southern side wall of the party of the first part premises.

26)In view of the above stipulations in EX A-1 and A-2 the trail court rightly decided the issue without warranting the interference of this court accordingly this point is also answered against the appellant and conformed the findings of the trail court.

27) POINT No 4 :-

In the result,AS No.357 of 2010 is dismissed without costs.

18AS 357­10 & AS 397­10

In the result,AS No. 397 of 2010 is dismissed without costs.

Typed to my dictation by the Stenographer, corrected and

pronounced by me in the open court on this the 22nd day of June , 2015.

Sd/-

(D.THIRUMALA RAO)

III ADDL.CHIEF JUDGE

CITY CIVIL COURT: HYDERABAD

APPENDIX OF EVIDENCE

NIL Documents Marked NIL

Sd/-

(D.THIRUMALA RAO)

III ADDL.CHIEF JUDGE

CITY CIVIL COURT: HYDERABAD

1AS 357­10 & AS 397­10

IN THE COURT OF THE III ADDITIONAL CHIEF JUDGE : CITY CIVIL

COURT : HYDERABAD

DATED THIS THE 22 nd DAY OF JUNE 2015.

PRESENT : SRI D. TIRUMALA RAO, M.A.,LL.B.,

III ADDL. CHIEF JUDGE.

AS. No.357 of 2010 AND AS. No.397 of 2010

AS 357 OF 2010

Between :

1. Vijayalakshmi

2. Brij Mohan Tiwari ..Appellant/Plaintiffs

AND

Sri Gurunath Dixit ..Respondent/Defendant

AS 357 of 2010 is filed against the decree and judgment dt. 01-06-

2010 on the file of III Junior Civil Judge, City Civil Court,

Hyderabad in O.S.76 of 2005

Between:-

1. Smt. Vijayalakshmi

2. Brij Mohan Tiwari .. Plaintiffs

AND

Sri Gurunath Dixit ..Defendant

AS 397 of 2010

Between :

1. Smt. Vijayalakshmi

2. Brij Mohan Tiwari ..Appellant/Plaintiffs

AND

Sr i. Gurunath Dixit

..Respondent/Defendant

AS 397 of 2010 is filed against the decree and judgment dt. 01-06-

2010 on the file of III Junior Civil Judge, City Civil Court,

Hyderabad in O.S.4726 of 2003

Between :

Sr i.Gurunath Dixit ..Plaintiff

AND 2AS 357­10 & AS 397­10

1. Smt. Vijayalakshmi

2. Brij Mohan Tiwari ..Defendants

This appeal is coming before me for final hearing in the presence of

Sri G.ARUN advocate for the appellant, and Sri M.N.BUNG Respondent respectively in both the appeals and the matter having stood over till this day for consideration and this Court delivered the following :

COMMON JUDGMENT

1)These two Appeals filed by the appellant assailing the decree and common judgment dt. 01-06-2010 on the file of III Junior Civil Judge, City

Civil Court, Hyderabad in OS. No.76 of 2005 and OS. No. 4726 of 2003.

These two appeals are made over to this court for final disposal. The parties are arrayed as parties before the trial court in OS No. 76 of 2005 from herein after for the convenience.

Reliefs in OS No.76 of 2005.

I).To declare memorandum of understanding between both parties as void regarding in O.S. No.4009/2002.

II).To declare the plaintiffs herein are absolute owners and possessors of

Northern side compound wall. No. 4-1-641.

iii). To grant perpetual injection restraining the defendants herein from interfering in peaceful possession and enjoyment of Northern side compound wall on 4-1-641 of the plaintiff.

IV). To grant mandatory injection against the defendants herein to demolish their wall and slab of room of first floor staircase.

Reliefs in OS No.4726 of 2003.

I).To direct the defendant therein to raise 9 inch wall to height of 10 feet 3AS 357­10 & AS 397­10 adjoining and abutting Southern wall of plaintiff's premises bearing No. 4-1- 584/2 directing the defendants to close and cover up all balconies in terms of memorandum of settlement and understanding and in terms of memorandum of compromise in OS. No.4009 of 2002.

II). To perpetually restrain the defendants therein from making any construction in premises bearing No. 4-1-641 till the defendants comply with memorandum of understanding.

III).To restrain the defendants therein from undertaking any repairs of

Southern wall of plaintiff's premises bearing No. 4-1 584/2.

IV).For damage of Rs.25,000/- (Rupees twenty five thousand only) be decreed at the rate of 24% from date of suit till realization against the defendants.

2) The brief facts of the plaintiff's case in OS No. 76 of 2005 are that the plaintiff No.2 is the husband of plaintiff No.1 and he is the absolute owner of house bearing No. 4-1-641, Hindustani Galli, Street No.8, Troop

Bazar, Hyderabad. Originally Ladharam Ghan Shyam Das and Kanyalal have purchased the said house in auction conducted under Displaced

Persons (Compensation & Rehabilitation) Act, 1954 and they sold the property to Durga Prasad under Regd. Sale Deed bearing No. 1219/1959

dt. 22.05.1959 and Durga Prasad sold the same to Laxman Prasad under

Regd. Sale Deed dt. 09.12.1971, who is the father of the plaintiff No.1 and he bequeathed the said house by will in favour of the plaintiff No.1.

Therefore the plaintiff No.1 is absolute owner and possessor of the suit property and in the plan annexed to sale deed dt. 25.05.1959 which shows that there is a compound wall existing all round the house since 1959 and that the roof of residential house is covered by asbestos sheets and the 4AS 357­10 & AS 397­10 asbestos sheets are resting on the compound wall, all around the house.

The defendant is resident of H No. 4-1-584/2, abutting the northern side compound wall of the plaintiffs and the plaintiffs house is enclosed with compound wall all around with a gate on the western side opening on to the main road and the structure has become dilapidated, the plaintiffs applied for permission to the Municipal Corporation to construct a new house and the plaintiffs have demolished the old house but retained the compound wall all around the house for protection for the new house being built. The officials of the MCH have visited the premises and took possession of 5 feet all along the road, for road expansion on the western side, facing the main road as it was one of the conditions for grant of permission and they demolished the compound wall on the Northern side of the plaintiffs house abutting the defendant's house to an extent of 5 feet for expanding the road and the municipality after taking 5 feet granted permission for construction of ground plus two floors vide permit No.7/23 vide file

No.641/1/4/2002 dt. 25.04.2002.

3)The plaintiffs laid first floor and wanted to demolish the old compound wall which is 18” thick on the northern side abutting the house of the defendant and build a new compound wall of 9” thick in place of old compound wall and the defendant in order to grab the northern compound wall of the plaintiffs complained to the municipality making false allegations that the plaintiffs are deviating from the plan sanctioned by the MCH for construction of the house and the defendant is a poojari in a temple and he is influential in the locality and the defendant used his influence as such the municipal authorities started harassing the plaintiffs and interfered in construction of house and the plaintiffs were compelled to filed OS No.4009 5AS 357­10 & AS 397­10 of 2002 against the Municipal authorities for grant of perpetual injunction restraining the municipality from interfering with construction of the plaintiffs and the defendant was impleaded in the suit as defendant and the plaintiff brought to the defendant notice that he has violated the MCH rules and constructed a room illegally on the first floor touching the northern side compound wall and also stair case leading to the first floor touching the northern compound wall of the plaintiff thereby obstructing their easementary right to natural light and air and the matter was agreed to settle the difference among themselves and as per the agreement the plaintiffs agreed to demolish the old northern side compound wall and build a new compound wall of 9” thickness at their own expenses and the plaintiffs also agreed not to raise any construction on their balcony in order to block air and light to the defendants' property and the plaintiff agreed only to raise a parapet wall of 3 feet height on the balcony in order to protect the persons walking in the balcony.

4)On 11.11.2002 the plaintiffs at the request of the defendant went to his counsel office and compromise is being drafted and the defendant became very agitated and threatened the plaintiffs that if they do not sign the compromise immediately he will use influence and see that the

Municipal authorities demolish their house on the next day and the plaintiff believing the version of the defendant that the MOU settlement is prepared as per terms agreed upon between them and also due to fear that the defendant may get their house demolished by municipality as threatened by him, have signed the MOU. After the compromise was recorded, the defendant started chipping the northern side compound wall of the plaintiff and the plaintiff objected the same and in the MOU it was incorporated 6AS 357­10 & AS 397­10 that the plaintiff shall not keep any openings of balcony, windows or ventilators towards the northern side and the plaintiff realized that they had signed the compromise based on the misrepresentation and coercion of the defendant without understanding the implications of the terms of the MOU dt.11.09.2002 and compromise dt.18.11.2002. The plaintiffs immediately objected to the terms and informed the defendant that they had signed

MOU and compromise without their free consent under misrepresentation, coercion etc., and the defendant withdrew OS No.4009 of 2002 and as per the terms agreed and the plaintiffs started construction of parapet wall over the balcony on the firsts floor, the defendant objected to the said construction and when the plaintiffs brought to the notice of the defendant that if they construct wall on the balcony it will result in the closing of windows and doors on the northern side, the result of which would be the denial of easementary right of the plaintiff for enjoyment of natural light and air and the defendant with an intention to grab the northern side compound wall of the plaintiff abutting the defendant''s house has filed OS

No.4726 of 2003 and the compound wall is more than 80 years old and is in a dilapidated condition. Therefore, the plaintiffs may be permitted to demolish the northern side compound wall immediately and the plaintiffs have no other remedy except to approach the court for a declaration of ownership, mandatory injunction and perpetual injunction against the defendant.

5)The defendant filed a detailed written statement contending that the suit is not maintainable either under law or on facts.

6)It also contended that the defendant has no knowledge about the 7AS 357­10 & AS 397­10 purchase of house mentioned in the plaint and also denied that the house of the plaintiff is enclosed with compound wall all around the gate on the western side opening on to the main road and for the purpose of new construction the plaintiff demolished the entire house and denied that the plaintiff while demolishing the old house retained the alleged compound wall all around the house and while construction the plaintiff raised the pillar to the distance of 4 feet from the southern wall of defendant and the defendant did not raise any objection and the plaintiff completed the construction upto the roof level on the ground floor and the plaintiff laid roof of ground floor covering the three feet opening space i.e balcony of three feet towards northern side of the plaintiffs premises i.e towards southern side of the defendant's premises and as the said balcony was just opened towards the defendant's premises, the defendant raised objection and requested them not to make such unauthorized construction and the defendant has no other go except to file complaint with Municipality against the plaintiff. On the compliant the MCH issued notice for demolition of the construction to the plaintiffs. But the plaintiffs filed OS No.4009 of2002 against the MCH and obtained exparte injunction. The MCH has granted permission for construction of ground plus two floors vide permit No.7/23 and the plaintiffs went on making the construction in contravention of the sanction plan against the sanction plan and the MCH issued notice for demolition and denied that he wanted to grab the compound wall of the plaintiffs and filed complaint to the MCH and it was agreed that the plaintiffs shall construct their own new wall adjoining the southern side wall of the defendant and further agreed while constructing the 9” thick wall abutting southern side of the defendant's wall, the plaintiffs shall not cause any kind of damages to the southern side wall of the defendant and a 8AS 357­10 & AS 397­10 compromise was agreed and the plaintiffs committed breach of MOU and denied that the plaintiff is absolute owner and in possession of the alleged compound wall of 18” admeasuring 8 sq Yd on the northern side of the plaintiffs house abutting the defendant's house and that no such wall is existing and the suit is bared by Order 23, CPC and denied that the defendant constructed room on first floor and stair case abutting the northern compound wall of the plaintiffs blocking any easementary right or natural right and air or violating rules of MCH and denied any such room in the first floor or stair case has been constructed illegally and there is no cause of action to file the suit.

7)Having considered the above rival contentions the trail court framed the following issues for trail.

I)Whether the memorandum of settlement cum understanding dated 11-09- 2002 and compromise dated 18-11-2002 is void and unenforceable as against plaintiff as prayed for.

II)Whether plaintiffs are entitled to declare as owners and possessors of

Northern side compound wall as prayed for.

III) Whether the plaintiffs herein are entitled to obtain perpetual injunction,as prayed for.

IV) Whether defendant is liable to demolish the wall and rooms at first floor and staircase as prayed by the plaintiff.

V)To what relief?

8) The brief facts of the plaintiff's case in OS No.4726 of 2003 are that.

the plaintiff is the owner and possessor of property bearing No.4-1-584/2 9AS 357­10 & AS 397­10 situated at Hindustan Galli, Troop Bazar, Hyderabad consisting of ground, first and second floors and the defendant is owner and possessor of house bearing No.4-1-641, situated at Troop Bazar, Hyderabad and the plaintiff has his own southern wall running from East to West and the defendant completely demolished their house bearing No.4-1-641 situated at Troop

Bazar, Hyderabad for purpose of construction of new building i.e commercial cum residential complex and wanted to construct ground and first floor and the defendants while commencing the construction raised pillars for their house at the distance of four feet abutting the southern wall of the plaintiff's property and even though the defendants were making unauthorized and illegal construction, plaintiff did not raise any objection and accordingly the defendants have completed the construction upto the room level and the defendants suddenly without any authority covered the open space left in the ground floor and constructed the balcony about three feet width towards their northern side and towards the southern side of the plaintiff's premises and the said balcony was abutting and touching the plaintiff's premises and the said balcony was abutting and touching the plaintiff's premises i.e touching the southern wall of the plaintiff and plaintiff raised objection, but the defendants with oblique motive continued the construction and laid the room of the first floor in the similar way like the ground floor, opening the balcony towards the premises and the plaintiff lodged a complaint before MCH and the defendants filed OS No.

4009/2002 against MCH and the defendants approached the plaintiff for compromise and settlement of dispute and the matter was compromised between the parties.

9)The defendants raised the balcony which is touching the plaintiff's 10AS 357­10 & AS 397­10 wall and defendant further agreed that they will cover the entire balcony i.e ground, first and second floors or any upper floor by raising the parapet wall across the entire balcony or by raising the brick wall on each balcony and there shall not be any kind of openings in the said balconies towards the plaintiff's premises and that instead of covering the balcony they further started further construction of upper floor in the said premises illegally without any permission and the defendants have committed breach of condition and the plaintiff is now entitled to raise the objection and to file complaint with MCH for unauthorized construction raised by the defendants and the defendants committed breach of settlement, the plaintiff is entitled for the relief of mandatory injunction and if the defendants complete the unauthorized construction the plaintiff will put to irreparable loss and injury and under the settlement the defendants agreed that in case they caused damage to the wall of the plaintiff, they will be liable to pay the damages and there is every chance of collapsing of the wall of the plaintiff and as such the plaintiff is entitled for perpetual injunction restraining the defendants from interfering into the repair of the southern wall of the plaintiff.

10)The defendant filed a detailed written statement contending that the suit is not maintainable either under law or on facts.

11)It also contended that the plaintiff is not of the owner of the plaintiff

House No.4-1-584/2 and that the defendant is the absolute owner and possessor of H.No.4-1-641, Troop Bazar Hyderabad and the said house was purchased by Ludharam Ghan Shyam and Kanyalal and inturn they sold the said property to Durga Prasad under regd. sale deed dt. 25.05.1959 and 11AS 357­10 & AS 397­10

Durga Prasad sold the property to Laxman Prasad as per sale deed dt.

09.12.1971 and the Laxman Prasad is the father of the defendant and has bequeathed the said house by will in her favour and the main structure of rooms with asbestos sheets resting on the compound walls was demolished as the defendant wanted to construct new building and the MCH imposed the condition of surrender of 5 feet facing the main road i.e on the western side of the defendants house to the municipality for road expansion and the petitioner was an ill motive to grab the compound wall of the northern side of the defendant started making false complaints to the municipal authorities and the defendant was compelled to file a suit against the municipality and the petitioners bearing OS No.4009 of 2002 and the defendant and her husband also agreed not to raise any construction on the balcony and all the allegations that are not specifically dealt with herein are denied and the plaintiff is put to strict proof the same and there is no cause of action to file the suit and prayed to dismiss the suit with costs.

12)Having considered the above rival contentions the trail court framed the following issues for trail.

I). Whether there is jural relationship as owner and tenant between the parties.

II). Whether plaintiff is entitled to injunction as prayed for.

III). To what relief?

13)The trail court to decide the both cases recorded common evidence in

OS No.76 of 2005 by clubbing OS No.4726 of 2003. To substantiate the case

of the plaintiff in OS No.76 of 2005 PW1, PW2 are examined. EX A1 to A10 and EX.X1 plan are marked for the plaintiff. DW1 is examined for the 12AS 357­10 & AS 397­10 defendant and EX B1 to B3 are marked for the defendant in OS No. 76 of 2005.

14)The trail court having perused the written arguments filed by both the parties,having perused the material evidence available on record and having perused the documentary evidence available on the record,partly decreed OS No.76 of 2005 holding memorandum of understanding is unenforceable against the plaintiffs herein and thereby declared the plaintiffs as owners of Southern side wall of the premises bearing No. 4-1- 584/2 that is the Northern side of the wall of the premises Bearing No. 4-1-

641. Perpetual injunction is also granted in favour of the plaintiff in OS

No.76 of 2005 restraining the defendant herein from interfering with peaceful possession and enjoyment of the Southern side of wall of H. No. 4- 1-584/2 and dismissed the prayer for mandatory injunction.

15)OS No.4726 of 2003 is partly decreed directing the plaintiff in OS No.

76 of 2005 to construct wall of 9 inches on the Northern side wall of plaintiffs property Bearing No. 4-1-641 to an extent of 10 feet and also granting perpetual injunction not to make any further construction unless the plaintiff in OS No. 76 of 2005 complies with the terms of memorandum of understanding under EX A-1 and A-2. However,the other prayers of the plaintiff in OS No.76 of 2005 are dismissed.

16)Aggrieved by the same the plaintiffs in OS No.76 of 2005 and the same are defendants in OS No.4726 of 2003 preferred the present appeals assailing the same on various grounds.

13AS 357­10 & AS 397­10

17)I have heard the counsels for both parties. I have perused the written arguments filed by the respondents counsel in both appeals. In view of the common subject between the parties,in view of the common judgment passed by the trail court,this court delivered the common judgment in both the appeals.

18)In view of the challenging of issue No.1 and 4 in OS No. 76 of 2005 and in view of the challenging of issue No.2 in OS No. 4726 of 2003 the rest of the findings became final. Hence now the points that arise for consideration are

I).Whether the memorandum of settlement cum understanding dated 11- 09-2002 and compromise dated 18-11-2002 is void and unenforceable as against plaintiff as prayed for?

II). Whether defendant is liable to demolish the wall and rooms at first floor and staircase as prayed by the plaintiff?

III).Whether plaintiff is entitled to injunction as prayed for?

IV).To what relief?

19) POINT No.1:- Undisputed fact is that originally one Ghan Shyam Das was the original owner of the house and he sold the property to Durga

Prasad by Registered Sale Deed dt.25-05-1959 under EX A-3 and A-4 is planning annexed to it and the said Durga Prasad sold the same to Laxman

Prasad vide Sale Deed Bearing No. 4137/1971 dt. 09-12 1971 and the

Laxman Prasad bequeathed the property to the first plaintiff by way of will and from the date of execution will and also from the date handing over the possession, the plaintiffs have been enjoying the suit schedule property. It 14AS 357­10 & AS 397­10 is also stated that suit schedule property has been surrounded with a compound wall and the Northern neighborer is the defendant herein. It is also admitted fact that when the plaintiff started construction over the suit schedule property and regarding the Northern wall a dispute arose between the plaintiffs and the defendant and with the intervention of the Municipal

Corporation of Hyderabad the matter went up to filing of OS No. 4009 of 2002 on the file of III Junior Civil Judge and the matter ended with a compromise and the suit is decreed in terms of compromise.

20)Now, the case of the plaintiff is that the plaintiff herein is challenging the memorandum of understanding and the terms of compromise on the ground that it is entered between the plaintiffs and the defendant due to misrepresentation, coercion,undue influence by the defendant. To prove the case of the plaintiff the first plaintiff is examined as PW1 and PW2 is also examined and also EX A-1 to A-10 and EX. X1 plan are marked for the plaintiffs. PW1 reiterated the entire contents of pleadings. Whereas the case of the defendant is that the compromise was entered freely without any coercion,misrepresentation,undue influence and got marked EX B-1 to

B-3 and PW1 was examined for the defendant who reiterated his entire case by way of chief affidavit. In view of the same when any party pleads coercion,undue influence and misrepresentation then the entire burden is on that party. Here is a case where in the plaintiff pleads the same hence the entire burden is on the plaintiff.

21)PW.1 speaks about EX A-1 to A-10 and EX.X1. EX A-1 is memorandum of understanding. EX A-2 is Memo of compromise. EX A-3 is Certified Copy of sale deed. EX A-4 is Plan. EX A-5 is Original translation of sale deed. EX 15AS 357­10 & AS 397­10

A-6 Sale deed. EX A-7 Plan annexed to Ex A-6. EX A-8 Certified Copy of will deed. EX A-9 Certified Copy of Judgment and decree in O.S. No. 2075/1995.

EX A-10 Nine Photos. EX.X1 Plan.

22)During the cross of PW.1, PW.1 admitted that she was aware of system of recoding compromise in the court. She also admitted about the dispute between the plaintiff and defendant and also admitted about the compromise between them in the presence of Padma Rao and others. She admitted the preparation of memorandum of settlement and her signature on it. She also admitted about EX B-1. She also admitted about the signatures on EX A-1 and EX A-2. She denied the suggestion that she put the signature only after hearing the contents of EX A-1 and A-2 in the presence of her husband and also in the presence of her advocate. She also admitted that she did not file any application to challenge the memorandum of understanding and the terms there on. PW.2 stated to be the son of her fathers vendor who spoke about the sale transaction between the father of the first plaintiff and his father which is undisputed.

23)It is pertinent to read the contents of EX A-1 and A-2 at this stage. EX

A-1 is executed between the plaintiff and defendant herein. The defendant herein is the first party and plaintiffs are second party. It is executed on 11- 09-2002. The document is in the name of second plaintiff and purchased for the first plaintiff. It contains various terms EX A-2 is Memorandum of

Compromise dated.18-11-2002.It also contains various terms and the same is recorded in OS No.4009 of 2002 and the suit is ended in terms of compromise. EX B-1 Certified Copy of plaint in OS No. 4009 of 2002. EX B-2

Memorandum of Compromise is similar to EX A-2 . EX B-3 is Memorandum 16AS 357­10 & AS 397­10 of understanding is similar to EX A-1. The suit is filed in the year 2005 after recording the compromise in OS No. 4009 of 2002 on 18-11-2002 which is a considerable time and if the plaintiff felt the fraud she could have filed very earlier stage and mostly she filed the suit only after filing of OS No. 4726 of 2003 which shows it is after taught to counter blast to the suit in OS No.

4726 of 2003. As such the trail court rightly held the issue in view of the terms under order 23 Rule 3(a) and the same is supported by the rulings of our high court in 2014 (2) ALD 346 in K. Krishna Kumar another vs.

K. Radha Krishnayya and also the same is supported by our own High

Court in another ruling reported in 2013 (4) ALD 500 in Hindi Re-Rolling

Industries,Hyderabad and others vs. Muktar Steels Pvt.

Ltd.,Hyderabad and others. In view of the principle in the above rulings the party cannot file a suit against the compromise decree which is barred under order 23 Rule 3(A) C.P.C as per the Amendment to the C.P.C. More over the plaintiff failed to prove the face of coercion with cogent and convincing evidence as rightly held by the trail court and now it can not be permitted to agitate in this case which is barred as res judicata and the principle of estoppal operates against the plaintiff's. Accordingly this point is answered against the appellants.

24) POINT No.2 :- As far as this issue is concerned the plaintiff failed to adduce any evidence to establish the fact that the defendant deviated in construction to the sanctioned plan as rightly decided by the trail court and moreover the plaintiff entered into a compromise with the defendants which dilutes the case of the plaintiffs. Except the photographs there is no other evidence to establish the fact that the defendant encroached into the plaintiffs site and made the construction over the plaintiffs wall. The 17AS 357­10 & AS 397­10 plaintiff also could have got the services of the surveyor to demarcate the land to ascertain the boundary dispute. However the plaintiff miserably failed to prove hence they are not entitled to the relief. Accordingly this point is answered against the appellant.

25) POINT No.3 : - The terms under EX A-1 and A-2 are very relevant to decide this issue. The stipulation under 3 and 4 in EX A-1 reads as follows:

3.It is further specifically agreed in case if the part of the second part commits breach of this condition beside they will liable for damages,the party of first part will be entitled to get mandatory injunction immediately from the court of law and get the said closed.

4.Party of the second part there by further agreed that there will construct the wall 9” adjoining to the Southern side wall of the party of the first part premises upto the height of 10 ft. It is further specifically agreed that while constructing the said wall party of the second part shall not cause any damage to the Southern side wall of the party of the first part premises.

26)In view of the above stipulations in EX A-1 and A-2 the trail court rightly decided the issue without warranting the interference of this court accordingly this point is also answered against the appellant and conformed the findings of the trail court.

27) POINT No 4 :-

In the result,AS No.357 of 2010 is dismissed without costs.

18AS 357­10 & AS 397­10

In the result,AS No. 397 of 2010 is dismissed without costs.

Typed to my dictation by the Stenographer, corrected and

pronounced by me in the open court on this the 22nd day of June , 2015.

III ADDL.CHIEF JUDGE

CITY CIVIL COURT: HYDERABAD

APPENDIX OF EVIDENCE

NIL Documents Marked NIL

III ADDL.CHIEF JUDGE

CITY CIVIL COURT: HYDERABAD

1 CMA 77 OF 2012

IN THE COURT OF THE III ADDITIONAL CHIEF JUDGE,

CITY CIVIL COURT AT: HYDERABAD. MONDAY THE 8 THDAY OF SEPTEMBER, 2014. PRESENT: SRI.D. THIRUMALA RAO, M.A., LL.B.,

III ADDITIONAL CHIEF JUDGE

CMA. NO.77 OF 2012

BETWEEN: Gutha Kondal Reddy, S/o. Late. G. Rama Krishna Reddy, Aged about 60 years, Occ: Business , R/o. H.No. 16-11-1/14, Saleem Nagar Colony,

Malakpet, Hyderabad....Appellant

A N D

1.The Tahsildar, Shaikpet Mandal, Hyderabad District.

2. Mohd. Rasheed, S/o. Mohd. Ibraheem, Aged 32 years, Occ: Business. 3.Mohd Lathif, S/o. Mohd. Husain Sharif, Aged 45 years, Occ: Business

4. Mohd. Anwar, S/o. Mohd. Hussein Sharif, Aged 40 years, Occ: Business ( Defendants 2 to 4 are R/o. H.No. 19-1-436/A/40& 41, Osmanbagh, Bahadurpura, Hyderabad )

5. Mr. Indra Prakash, S/o. Not known to the Plaintiff, Aged: majors, Occ: Real Estate, R/o. Flat No. 306, Chiayamina Enclave, Beside Pullareddy Sweet Shop, A.S.Raju Nagar, Kukatpally, Hyderabad. ( Respondent 5 is not necessary party to the present CMA)

.... Respondents

APPEAL FILED AGAINST ORDER AND DECREETAL ORDER OF THE

II JUNIOR CIVIL JUDGE :: CITY CIVIL COURT :: HYDERABAD IN IA.753 OF 2011 IN

OS.NO.2886 OF 2011

Between: Gutha Kondal Reddy, S/o. Late. G. Rama Krishna Reddy, Aged about 60 years, Occ: Business, R/o. H.No. 16-11-1/14, Saleem Nagar Colony,

Malakpet, Hyderabad ...Petitioner

AND 1.The Tahsildar, Shaikpet Mandal, Hyderabad District.

2. Mohd. Rasheed, S/o. Mohd. Ibraheem, Aged 32 years, Occ: Business. 3.Mohd Lathif, S/o. Mohd. Husain Sharif, Aged 45 years, Occ: Business

4. Mohd. Anwar, S/o. Mohd. Hussein Sharif, Aged 40 years, Occ: Business ( Defendants 2 to 4 are R/o. H.No. 19-1-436/A/40& 41 Osmanbagh, Bahadurpura, Hyderabad )

5. Mr. Indra Prakash, S/o. Not known to the Plaintiff , Aged: majors, Occ: Real Estate, R/o. Flat No. 306, Chiayamina Enclave, Beside Pullareddy Sweet Shop, A.S.Raju Nagar, Kukatpally, Hyderabad.

....Respondents

2 CMA 77 OF 2012

This Civil Miscellaneous Appeal is coming on 17-07-2014 for final hearing and disposal before me in the presence of Sri. I.C. Samuel, Advocate for the Appellant and Sri. K. Balakrishna, G.P., for Respondent no 1. and the matter having stood over for consideration till this day, this Court delivered the following.

: O R D E R :

1.The parties are arrayed as parties in IA.N0.753/2011in

OS.No.2886/2011 as Petitioner and Respondents, the facts of the Petitioner

case in the Trial Court are that the Petitioner filed the Petition under Order 39, Rule 1 and 2, CPC praying the Trial Court to pass Ad-Interim Injunction restraining the Respondents from interfering with the peaceful possession of the Petition Schedule Property in the interest of justice and to pass such other Order or Orders as the Trial Court may deem fit and proper in the circumstances of the case.

2.The brief facts of the Petitioner case are that the Petitioner is the

Plaintiff in the main suit and submitted that the Petitioner is the absolute owner and possessor of the Petition Schedule Property bearing H.No. 8-2- 269/2, Plot no. 1, admeasuring 742.05 sq. yards equivalent to 621 sq.

meters, situated at Road No. 2, Banjara Hills, Hyderabad and also submitted that he purchased the said plot from his vendor under an Un-Registered

Sale Deed, dt. 14-03-1974 from his vendor Mohd. Hasan Khan, S/o. Late.

Mohd. Shahbhaz Khan. In turn his vendor purchased the same said plot from his vendor T.V.Ramachandraiah, S/o. Venkata Ramaiah on 09-12-1996 through Register Sale Deed bearing no. 2994/1996.The said

T.V.Ramachandraiah in turn purchased the same from his vendors Mr.

Narayana, S/o. Balakistaiah Saheb and Mr.Ramulu, S/o.Venkata Ramaiah

Saheb through Register Sale Deeds bearing nos. 761/64 and 762/64, dt.

3 CMA 77 OF 2012 16-4-1964, and submitted that the property is in occupation of private parties from 1964 onwards without any objection what so ever from any of the parties including Revenue Authorities.

3.It is also the case of the Petitioner, that the Petitioner is continuing in peaceful possession and enjoyment of the Petition Schedule Property.

Subsequently the Petitioner approached the Office of the District Registrar,

South and got impounded the document by paying deficit Stamp Duty under section 42 of the Act II of 1899 vide endorsement number 424 of 2008, dt. 25-2-2008 and also submitted that after impounding the document the Petitioner approached the GHMC, for obtaining layout regularization. The GHMC Authorities granted regularization of the open plot layout on 29-08-2011, and the Petitioner also submitted that while the things are so some part of the land in the said plot is grabbed by some of the neighbours. Apprehending the things then the Petitioner started construction of compound wall to an extent of 442 sq. yards for which the

GHMC granted regularization of lay out. The Petitioner also submitted that

Petition Schedule Property is mutated in his name by Municipal Authorities vide ROC.No.35031/TC10/T5/GHMC/2011, dt.15-9-2011, and also submitted that while constructing the compound wall the 1st Respondent Authorities came to the Petition Schedule Property highhandedly and without having no manner of right or title in the said property tried to demolish the compound wall at the instance of Defendant nos. 2 to 5 in the month of October and also on 25-11-2011 at about 4.30 p.m., ant it is submitted that with great difficultly the Petitioner prevented the illegal attempts of the Respondents at Petition Schedule Property and also submitted that the friends of 4 CMA 77 OF 2012

Respondents 2 to 5 are running a club by name DEJAUV Club in the neighbouring house to the schedule property as such they have an evil eye over the Petition Schedule Property to use the same as parking place for the said club.

4.It is also further submitted that the Petitioner have perfect right title in respect of Petition Schedule Property and alleged that the Respondents have illegally interfering with the Petitioners possession and enjoyment over the Petition Schedule Property and as such, the Petitioner got prima facie case in his favour, and alleged that the Respondents have evil eye and instigating the 1st Respondent to occupy the petition land under the guise of the same as government land and there is imminent danger to his right and to the nature of the Petition Schedule Property and also submitted that the

Petitioner has got prima facie case and imminent danger to his right and also got balance of convenience in his favour and submitted that in case of protection by way of interim injunction is not granted he would suffer irreparable loss and injury which cannot be compensated otherwise and alleged that the Respondents shall suffer no loss as they are not in possession of the same and prayed the Court to pass appropriate Orders to protect the Petitioner right.

5.As per record, the 1st Respondent filed a detailed counter and the right of filing of Counter by the Respondent no. 2 to 4 was forfeited and

Petitioner not pressed the petition against the 4th Respondent.

5 CMA 77 OF 2012

6.The 1st Respondent filed the detailed counter, the contention of the 1st

Respondent is that the petition is not maintainable either under law or on facts. The deponent to the Counter filed on behalf of the 1st Respondent submitted that he is working as Tahsildar, Shaikpet Mandal and Respondent no. 1 in the case and got acquaintance with the facts of the case and at the outset the 1st Respondent denied all the adverse allegations made against the 1st Respondent as totally false, baseless, fictitious and misconceived.

The contention of the 1st Respondent is that the Petitioner has not complied with the provisions of section 80 of CPC before instituting the Suit against this Respondent and asserted that it is mandatory and alleged that

Petitioner has approached the Court with unclean hands by suppressing the material facts and as such introduced his own case relating to the alleged property bearing H.No. 8-2-269/2, plot no. 1, at Road no. 2, Banjarmasin

Hills saying that the alleged Petition Schedule Property is non existing property and alleged that under the guise of certain sale deeds which has no mentioned of Survey number, illegally claiming the Government land in

T.S.NO.3/1, Block-C, Ward No. 10 correlated to Sy.No. 403 part of Shaikpet village and Mandal and the land which is being claimed by the Petitioner on ground measures 478 sq yards or 400 Sq. Meters only on the said vacant land, is covered by fencing with existing a Government sign board thereon and also submitted that the land claimed by the Petitioner in the above suit is purely Government land and the same is in the custody of the

Government ever since and further alleged that neither the Petitioner nor his vendors are ever in possession over the suit land at any point of time and alleged that the Petitioner has failed to produce any contemporaneous evidence to prove his possession on date of institution of suit or prior to 6 CMA 77 OF 2012 institution of the suit and also submitted that the alleged house is also non existing one at Road no. 2, Banjara Hills locality , since the land in question is vacant on ground and no house numbers be granted and it appears that under the guise of the alleged house number the Petitioner intends to grab the Government land in T.S.NO.3/1, Block-C, Ward No. 10 correlate to Sy.No.

403 of Shaikpet village at Road no. 2, Banjarmasin Hills by taking advantage that the same is vacant on ground. And alleged that the

Petitioner has no manner of right, title, interest or even possession to claim by the petition property which a Government land and also submitted that in the year 2000 one Smt. K.Laxmi, W/o. K.Narender Reddy has filed a land grabbing case in LGC.No. 58/2000 against the State of A.P. Represented by the District Collector, Hyderabad and Mandal Revenue Officer, Shaikpet

Mandal in respect of Application schedule and including the land claimed the Petitioner herein alleging that the Government grabbed the Application schedule land without having any right or title. The Government filed a detailed counter bringing the fact before the Hon'ble Special Court and the

Hon'ble Special Court concluded that the application schedule land is a

Government land and is dismissed the LGC in the judgment dt. 18-4-2011.

7.The 1st Respondent further submitted that one Mohd. Ibrahim Shareef has also filed a suit in OS.No.1056/2006 on the file of IV Junior Civil Judge ,

City Civil Court , Hyderabad seeking Perpetual Injunction against the State of A.P. Being represented by the Collector, Hyderabad District, in respect of land admeasuring 742.85 Sq.mtrs, with H.no. 8-2-269/2, at Road No. 2,

Banjarmasin Hills, Hyderabad and the land claimed by the Plaintiff in

OS.No.1056/2006 and the present suit OS.No.2866/2011 is one and the

7 CMA 77 OF 2012 same and also submitted that since the land in question is a Government land and it is vacant on ground within the possession of Government, the

Hon'ble IV Junior Civil Judge , City Civil Court , Hyderabad dismissed the

said suit in its Judgment dt. 31-5-2010, during that the Plaintiff failed to establish the identity of of petition property and is not entitled for the relief of Perpetual Injunction.

8.At this juncture, the 1st Respondent submitted that to prove historical survey back ground of Shaikpet village, projected the facts for proper appreciation of the case. The 1st Respondent stated that Shaikpet village of

Hyderabad district is an Ex-surfekhas village. After the promulgation of

Surfekhas Merger Regulation Act, 1358 Fasli the entire village was Diwani and all the records pertaining to Sarfekhas Jagir was made over to the erstwhile Hyderabad sate, and since then the lands which were under the control of Sarfekhas Jagir had come under the administrative control of

Revenue Department, Hyderabad district.

9.The initial survey of Shaikpet village was conducted in 1320 Fasli and completed in 1350 Fasli. In the initial survey the entire Shaikpet village was surveyed under Sy.No.353 intoto. The Sy.No.129 admeasuring 3,288.03 guntas was classified as Government land popularly known as “Kancha Tatti

Khana”. In 1331 Fasli a supplementary sethwar was issued by subdividing

Sy.No.129 into 10 division as Sy.No.129/2 to 129/10 admeasuring Acres 190.03 guntas was assigned to one Sri.Moulvi Mohd.Moinuddin. The remaining extent of Sy.No. 129, comprising of Sy.No. 129/1 was recorded as

Government land. In 1336 Fasli another supplementary Sethwar was issued by deleting the last Sy.No.353 from Shaikpet village and annexing the same 8 CMA 77 OF 2012 in Yellreddyguda village. Thus the total survey numbers of Shaikpet village were reduced to 352. Subsequently in the year 1346 Fasli by means of another supplementary sethwar Sy.No. 129/1 to 129/10 were deleted and 52 new survey numbers from Sy.No .353 to 404 were created in their place and Sy.no. 403 is classified as Government “poramboke” land.

10.During the year, 1964-71 town survey was conducted under the provisions of Survey and Boundaries Act-1923. After completion of survey the entries in TSLR have been notified under section 13 of Survey and

Boundaries Act vide Gazette No.41, dt. 06-08-1979. These entries cannot be altered or modified by any means, except by a Decree of Civil Court obtained by in a Civil Suit, within three years from the date of said notification as stipulated under section 14 of the said Act.

11.The Ist Respondent further submitted that in the instant case, neither the Petitioner nor his alleged predecessor have not filed any suit within the stipulated statutory period of 3 years for correction or alteration as such the entries made in T.S.L.R binding on them and submitted that the assertion of the Petitioner is that he is absolute owner and possessor of the Petition

Schedule Property bearing H.No.8-2-269/2, plot no. 1, admeasuring 742.05 sq yards or 621 sq meters, situated at Road NO. 2, Banjarmasin Hills,

Hyderabad as false, baseless and misconceived and projected that the land claimed by the Petitioner in the present petition and the main suit is vacant on ground and there is no structure at all over the suit property and also submitted that Petitioner is put to strict proof that there existed a house with alleged house number with the boundaries mentioned as in the 9 CMA 77 OF 2012

Petition Schedule Property and also denied the allegation that the Petitioner purchased the said plot from his vendor under a un- Registered Sale Deed,

dt. 14-03-1974 from his vendor Mohd. Hasan Khan, S/o. Late Mohd.

Shahbhaz Khan. In turn, the vendor of the Plaintiff has purchased the said plot from his vendor T.V.Ramachandraiah, S/o. Venkata Ramaiah on 09-12- 966 through Register Sale Deed bearing No. 2994/1966 and that

T.V.Ramchandraiah in turn purchased the same from his vendor,

Mr.Narayana, S/o. Balakistaiah Saheb and Mr. Ramulu, S/o. Venkata

Ramaiah Saheb under Registered Sale Deeds bearing document nos.

761/64 and 762/64 dt. 16-4-1964 and that the petition property is in occupation of private parties from 1964 onwards without any objection etc., are false, misconceived and baseless.

12.The Respondent no. 1, further alleged that the recital of

Un-Registered Sale Deed, dt. 14-3-1974 reveals that the property under the said sale deed is of H.No. 8-2-269/2 on plot no. 1 of layout no. 13/65, situated at Road no. 2, Banjara Hills, Hyderabad. In fact the said land claimed in the present petition is vacant on ground within the possession of

Government and thee was no house existing at any point of time. Since the land in question is vacant on ground the question of allotment of House number does not arise and further submitted that the alleged un-

Registered Sale Deed through which the Petitioner claiming the rights were purported to be executed on 14-03-1974 do not contain any survey number but, with a malafide intention to grab the Government land the

Petitioner cleverly validated the said Un-Registered Sale Deed on 25-02-2008 with District Registrar, Hyderabad South, and the validation is 10 CMA 77 OF 2012 in no way creates any right over the property or assigns possession over the Petition Schedule Property and also alleged that under the guise of the said fictitious sale deed the Petitioner made hectic trick to trespass into the valuable Government land in T.S.No.3/1, Block-C, Ward No. 10 correlated to

Sy.No.403 part of Shaikpet village and approached the Court with concocted stories and baseless allegations and the recital of document no. 2994/1966,

dt. 09-12-1966 through which the Petitioner vendor T.V.Ramchandraiah

alleged to be purchaser from Mr. Narayana, S/o. Balakishtaiah, reveals that the property under the said deed is of plot no. 1 of sanctioned layout no.13/65 in S.Y.No.129/11 paiki ( old S.Y.No. 129/110 to 94) , situated ar

Road No. 3, BanjaraHills, Hyderabad. But the Petitioner claiming the alleged Petition Schedule Property in Road no.2, BanjaraHills, hence the alleged document is not pertaining to the alleged Petition Schedule

Property . Even otherwise, the land claimed by the Petitioner in the present suit is a Government land and since the land is vacant on ground under the custody of Government the question of interference in totally denied by the

Respondent.

13.It is also the contention of the Respondent and denied the allegation of the Petitioner that he is continuing with peaceful possession and enjoyment is totally false, baseless and misconceived and asserted that the land in question is vacant on ground within the possession of Government ever since with existing a Government sign board, thereon under watch and ward of answering Respondent and also submitted that, there was no structure existed at any point of time and neither the Petitioner nor his vendors are ever in possession over the land in question and submitted 11 CMA 77 OF 2012 that, neither the Petitioner nor the Respondent nos. 2 to 5 have any Right or Title over the petition land and further submitted that with a malafide intention to grab the valuable vacant government land, the Petitioner cleverly fabricated sale deed purported to have been executed on14-03- 1974, without mentioning the survey number and incorrect location and approached the District Registrar, Hyderabad (South) managed to get impounded the document under section 42 of Act II of 1899 and alleged that such illegal and unauthenticated document does not accrue any right or title, whatsoever in the Government lands.

14.The Respondent also submitted that mere impounding of document and obtaining of lay out regularization do not create any Title to the

Petitioner over the Government land or prove his possession and alleged that the alleged lay out regularization does not pertain to and the entire burden is on the Petitioner to establish the same.

15.It is also denied by the Respondent that the Petitioner never constructed compound wall in the suit schedule land, and alleged that the

Petitioner is trying to trespass into the said government land and his attempts were foiled and prevented the encroachment of the initial stage itself and alleged that the mutation alleged to have been sanctioned in his name by GHMC authority is not at all pertains to the land in question. Even otherwise such illegal transaction if any, do not accrue any Title to the

Petitioner and also alleged that the Respondents nos. 2 to 5 are no way concerned to the Petition Schedule Property and asserted that neither the

Petitioner nor the Respondents nos. 2 to 5 will be allowed into the Petition 12 CMA 77 OF 2012

Schedule land and submitted that the field staff of answering the

Respondent is making frequent inspections and keeping close vigil to prevent the encroaching at any movement and also denied that the

Petitioner got perfect right, title in respect of Petition Schedule Property, and the Respondents have been illegally interfering with the possession and enjoyment as such the Petitioner got prima facie case and balance of convenience in his favour and the Respondents have evil eye and instigating the 1st Respondent to occupy the Petition Schedule Property under the same is government land and there is imminent danger to his rights are denied by the Respondent as totally false baseless, frivolous and misconceived and submitted that the Petition Schedule land is vacant on ground under the custody of Government with exists sign board therein and alleged that neither the Petitioner nor the Respondent nos. 2 to 5 have any right, title or interest whatsoever involved in the land in question.

16.At this juncture, the 1st Respondent submitted the Petition schedule land has been allotted to District Registrar, Hyderabad district for construction of their office building and possession of the land has been handed over on 01-07-2011 and the concerned authority is planning to construct their office to provide services to the General Public and submitted that if the trial court pass any interim order the construction would not badly help up and irreparable loss would be caused to the general public. It is also submitted that the Petitioner herein have come up with a W.P.No. 34723/2011, as additional document, wherein in the said order, the Hon'ble High Court was pleased to direct the GHMC to receive and process the application of the Petitioner for building permission. And 13 CMA 77 OF 2012 also submitted that, in the said order there is no specific direction or order against the answering Respondent and furthermore, the Petitioner has not whispered anything about the Writ Petition or its orders and alleged that

Petitioner has not asked any relief in the Writ Petition and submitted that the main relief is against the GHMC authorities for receiving the Petitioners

Application for building construction in respect of of Petition Schedule

Property and submitted that the order in W.P., in any way will not bar right of answering Respondent to protect the valuable Government property and allege that the Petitioner failed to prove his Title and Possession to the

Petition Schedule Property and alleged that Petitioner has not made out any prima facie case and the balance of convenience in his favour and ultimately sought the dismissal of the petition.

17.To prove his case the Petitioner got marked exhibits P1 to P20 and to prove the case, the Respondent got marked exhibits R1 to R11 before the trial court.

18.After hearing the arguments of both parties and after considering the facts of the case, the trial court dismissed the petition. Assailing the same, the Petitioner in the trial court preferred the present CMA before this court on various grounds. Heard the counsels for both the parties.

19. The learned Counsel for the Appellant argued vehemently that the

Judgment of the Trial Court is contrary to the law, opposed to the evidence and pleadings on record and the probabilities of the case and also argued 14 CMA 77 OF 2012 that the Trial Court failed to see the fact that the Government Revenue

Department handed over the suit property to the Registrar Office and now the property is in the custody of the Registry Department and also argued that the Trial Court failed to see in which Survey Number the Government land is situated and held finding in wrong way, holding that the Appellant failed to prove his possession and also argued vehemently that there is no dispute in respect of identity of the property but the Trial Court failed to see the same and also argued that the property mentioned in LGC is totally different from that of the property in the present suit and also argued that the finding in OS.No. 1056/2006 is not binding on the Appellant herein on the ground that the Appellant herein is not a party to the suit proceedings.

20.Per Contra, the Respondent argued the case in tune of the Order of the Trial Court and supported the Order of the Trial Court and argued that there are no ground for interference and both parties filed the written arguments.

21.Basing on the above rival contention now the point for consideration is a) Whether the Trial Court Order is in accordance with the terms of

Order 39 Rule 1 and 2.

b)To What Relief.

22.The admitted fact are that the suit schedule property is in the

Shaikpet Mandal and the case of the Petitioner is that he purchased the property through an Un-Registered Sale Deed, dt. 14-03-1974 and subsequently, the sale deed is validated by paying the stamp duty penalty.

15 CMA 77 OF 2012

The Respondent alleged that the property is non existing property and alleged that under the guise of Sale Deed, the Petitioner is trying to grab the Government property and also alleged that the property is not in existence. Basing on the same when there are serious allegations regarding the identity of the properties, the Petitioner has to establish first the identity of the property and the Petitioner has to establish his possession, then only he is entitled for the alleged relief.

23.The prayer of the Petitioner is that he is seeking Injunction Order against the Respondents restraining them from interfering with the peaceful possession and enjoyment of the suit schedule property.

24.To establish the same the Petitioner relied on Exhibits P1 to P20. Per

Contra, the Respondents relied on Exhibits R1 to R11. Basing on the above rival contentions the Court verified the documents very carefully. Ex.P1 is the xerox copy of Sale Deed bearing no. 761/1964, dt. 16-4-1964. Ex.P2 is the xerox copy of the Sale Deed bearing document no. 762/1964, dt. 16-4- 1964. Ex.P3 is the xerox copy of the Sale Deed bearing document no.

2994/1966, dt. 9-12-1966. Ex.P4 is Registered Sale Deed dt. 14-3-1974.

Ex.P5 is demand notice issued by the GHMC to the the Petitioner. Ex. P6 is the regularized plan. Ex.P7 is ROC.No. 35031, from the Deputy Commission to the Petitioner / Appellant herein. Ex.P8 is Encumbrance Certificate, dt.

27-11-2011. Ex.P9 is the Tax receipt. As per record Ex.P10 and P11 are stated to be photostat copies of the receipt dt. 7-7-1966. Ex. P11 is the proposed lay out issued in the name of T.Ramchandriah, dt. 7-4-1966.

16 CMA 77 OF 2012

Where as Ex.P12 to P19 are photographs and Ex.P20 is letter addressed to

Station House Officer, dt. 13-3-2012.

25.Where as the Respondents documents are marked as EX.R1 to

Ex.R11. EX.R1 is attested copy of the sketch showing the Petition Schedule

Property. Ex.R2 is attested extant of Town Survey land Register. Ex.R3 is the attested copy of the Gazette. Ex.R4 is the attested copy of Sethwar. Ex.R5 is the attested copy of Pahani Patrika. Ex.R6 is the attested copy of Takta,

Ex.R7 is the copy of Panchanama. Ex.R8 is the attested copy of sketch showing the Petition Schedule Property, Ex.R9 is the certified copies of

Judgment in OS.1056/2006, dt. 31-5-2010. Ex.R10 is the certified copy of the Decree in OS.1056/2006, dt.31-5-2010 passed by the IV Senior Civil

Judge,City Civil Court, Hyderabad and Ex.R11 is the certified copy of

Judgment and Decree in LGC.NO.58/2000.

26. Basing on the above Exhibits R1 to R11, Ex.R9 is very essential wherein this property is claimed by one Mohd. Ibrahim Shareef and also it is stated that T.V.Ramachandraiah divided the said land into 49 Plots and obtained the sanction lay out from M.C.H., in the year 1965 vide lay out

L.P.13/65 and he sold the said plot while discussing the same the Trial Court decided the issue against the Plaintiff in OS.1056/2006 and the same property is identical to that of this property in this petition and the

Petitioner has to establish his own case contrary to the finding in

OS.1056/2006 then only he is entitled for the relief which is to be decided

basing on the establishment of fact of ownership and possession by way of evidence only hence, at this stage this Court cannot decide the same and 17 CMA 77 OF 2012 the Trial Court rightly decided the same as per the Orders in IA.753/2011, and the same is according to the terms of Order 39, Rule 1 and 2 and no grounds to interfere into that Order, hence this point is answered accordingly.

27.In the result, the Appeal is dismissed. No costs.

Dictated to the Personal Assistant, Court of the XXII Junior Civil Judge,

City Civil Court, Hyderabad, typed to my dictation, corrected and

pronounced by me in open court on this the 8 th day of September 2014.

Sd/-

(D.Thirumala Rao) III Additional Chief Judge ,

CITY CIVIL COURT, HYDERABAD

Appendix of Evidence Witnesses examined - Nil -

Sd/-

(D.Thirumala Rao) III Additional Chief Judge ,

CITY CIVIL COURT, HYDERABAD

18 CMA 77 OF 2012

1OP 818­08

IN THE COURT OF THE III ADDITIONAL CHIEF JUDGE: CITY CIVIL

COURT: AT HYDERABAD

Dated this the 22nd day of June, 2015

PRESENT: SRI D.THIRUMALA RAO, M.A.,LL.B.,

III ADDL.CHIEF JUDGE

OP No. 818 of 2008

Between :

Sultej Rubber Industries, rep. by its Authorized/Partner Sri. Kamlesh Bhandri

...Petitioner

A N D

1.The Rubber Board, rep. by its Asst. Secretary

2.The Rubber Board, rep. by its Asst. Director

... Respondents

This suit is coming on 24.04.2015 before me for final hearing in the presence of Sri Rakesh Sanghi, Advocate for the Petitioner and Sri. V.

Sankara Rao, Advocate for Respondents and the matter having stood over for consideration till this day, this court passed the following :

JUDGMENT

1)This is the suit filed under section 12 (6) of the Rubber Act

2)The brief facts of the petitioner case are that the 1st respondent

Board herein is constituted to regulate the supply and sale of Natural

Rubber in India by issuing Licenses under the provisions contained in

Indian Rubber At, 1947 and the 2nd respondent is the Regional Office thereof for the A.P. Region situated at Hyderabad.

3)It is also submitted that the petitioner herein is engaged in the manufacturing of footwear and during it's inception, it was utilizing natural rubber as an essential ingredient in manufacturing footwear comprising of

Rubber chappals ets., and therefore, for producing Natural Rubber from the

Registered Suppliers of Natural Rubber, the petitioner has obtained a

License under section. 14 of the Indian Rubber Act, 1947 from the 1st 2OP 818­08 respondent herein vide License bearing No.010001 around fifty (50) years ago and the said License was being renewed annually as per the provisions contained in section. 15 of the Indian Rubber Act, 1947.

4)It is further submitted that with the advent of Low Density

Polyurethane and it's derivatives derived from re-cycled plastic scrap which is more malleable than natural rubber is also receptive to colour combinations etc., and is also a much cheaper and better substitute top natural rubber, the entire footwear Industry (except a few Rubber Chappal manufacturers) has stopped using natural rubber and consequently, the petitioner stopped manufacturing Rubber Chappals and consequently, stopped renewing the Rubber License same w.e.f. the Annual Year 1995-96 onwards, as there was virtually no requirement for natural rubber in its footwear manufacturing.

5)It is submitted that pursuant to non-renewal of the rubber license by the petitioner as aforesaid, the petitioner has virtually stopped procuring natural rubber as utilising natural rubber in its footwear products is a very costly proposition whereby, the manufacturing cost of the footwear product itself would shoot up to abnormal rates compared to the manufacturing costs of the footwear by utilising LDPE ie., re-cycled plastic scrap.

6)It is further submitted that despite the foregoing, the 2nd respondent suspected that the petitioner is procuring natural rubber for its footwear products without renewing the rubber license and the respondents got the factory premises of the petitioner raided with the assistance of the vigilance officials of the Enforcement wing, A.P. at Hyderabad on 01-11- 2007. However, in the entire search operations, the footwear (finished goods as well as goods in process) of the petitioner were neither 3OP 818­08 examined nor, seized for the purpose of determining as to whether natural rubber was being as a component or, not.

8)The Impugned excess rubber cess demand notice provisional notice bearing Ref No.RBED 24/M-010001/2007-08 dated 29-02-2008 for rubber cess of Rs. 4,65,000/- is hereby challenged by the petitioner herein on the following amongst the other.

9. GROUNDS:

a)The impugned assessment notice is absurd and is opposed to the facts of the case and the law prevailing.

b)The 1st respondent illegally issued the impugned assessment notice for the rubber cess even though the 2nd respondent did not discover, detect or, seize any natural rubber at the factory premises of the petitioner during the innumerable inspection visits of the rubber board officials.

c)The respondents herein merely suspected that the petitioner is procuring natural rubber from the black market by having totally ignored the assertion of the petitioner that it has stopped manufacturing rubber chappals and is not using natural rubber in manufacture of its footwear as it is using the cheaper and better alternative ie., low density polyurethane and its derivatives derived from recycled plastic scrap.

d)The respondents despite various search operations conducted on various dates at the petitioner's factory had neither found nor, seized even a single pair of footwear made of natural rubber or, even a single footwear wherein, natural rubber is one of the components.

e)The respondents are virtually ignoring the fact that not only the petitioner but almost the entire footwear industry (except, rubber chappal manufactures) all over India has stopped using natural rubber either as a 4OP 818­08 base material or, even as a ingredient/component in manufacture of footwear for achieving economics of scale, in the wake of availability of cheapest substitute namely low density polyurethane derived from plastic scrap.

f)The respondents are virtually refusing to acknowledge that the petitioner has stopped manufacturing rubber chappals.

g)The respondents are virtually refusing to acknowledge that the petitioner has stopped consuming natural rubber in the wake of easy availability of a cheaper substitute ie., low density polyurethane derived from plastic scrap.

h)The respondents are virtually refusing to believe that it is not financially viable for the petitioner itself to use natural rubber in its low quality footwear products as the manufacturing cost itself would go up and the entire exercise would be self defeating.

i)The respondent is refusing to believe that at the heart of the matter, there is virtually no requirement for the petitioner to procure natural rubber from the black market as it does not require and is not consuming the said product ie., natural rubber at all.

j)Therefore, the impugned demand notice for rubber cess is not only misconceived but is baseless merely on suspicion which is not even accompanied by the preponderance of probabilities as the very product natural rubber is a costly raw material and therefore, virtually useless for the petitioner.

l)The petitioner stopped renewing the rubber license since 1994-96 therefore there is no requirement to the cost returns on demand of non consumption of natural rubber.

5OP 818­08

7)Thereafter, without conducting any enquiry and without examining the issue in the correct perspective and merely on the basis of capricious suspicion, the 1st respondent issued the impugned demand notice bearing

Ref No.RBED 24/M-010001/2007-08 dated 29-2-2009 for excess rubber cess for a sum of Rs. 4,65,000/- by having made a provisional assessment under section 12(5) of the Indian Rubber Act, 1947 which can be equated to best judgment assessment under section 144 of the Income Tax Act, 1961.

10)That the respondents has filed the detailed counter.

Respondents submit that the petition is not maintainable either under law or on the facts of the case.

11)It is further submitted that the respondents herein is Rubber Board a

Statutory Board encouraging rubber and footwear manufactures and the petitioner is one of the manufactures of footwear and it is obvious that registration is necessary under the Rubber Act. Therefore it is clear that there are rules and regulations of Rubber Act and that the petitioner has to take licence and it is to be renewed and rubber is to be purchased in accordance with the provisions of the Indian Rubber Act, 1947 and material account, statement of costs etc., are to be maintained and further these returns are to be filed.

12)It is also submitted that all the charges mentioned in the petition are misconceived and far beyond the truth. Further the Rubber Board is a

Statutory body constituted under the rubber Act, 1947 and the Rubber

Board is under the administrative control of Ministry of Commerce and

Industry with its Head office at Kottayam, Kerala (respondent No.1) and

U/sec. 12 of the Rubber Act cess shall be levied for the purpose of the Act, 6OP 818­08 a duty of excise on all rubber produced in India at such rate not exceeding

Rs.2/- per kg. of rubber so produced. Further the Central Government may fix the rate from time to time. The rate of cess prevailing w.e.f. 01-07- 1994 was Rs. 1/- and from 01-09-1998 it is Rs.1.50 per kg. There is prohibition U/s. 14 of the Rubber Act and no person shall sell, dispose of or buy or acquire rubber except in accordance with the terms of general or special licence issued by the Board. The cess is assessed and collected by the Board from the manufacture of rubber goods on the basis of the purchase of rubber reported by them in their half years returns in the Form

M submitted to the Board vide sub section (a) and (b) of section 12 of

Rubber Act 1947 and sub section (e) of section 33 of Rubber Rule, 1955.

Further every manufacturer shall remit the relevant cess within 30 days from the date of receipt of the demand note issued from the Board. If the amount is not remitted within the time limit, the amount shall be recovered as an arrear of land revenue as in accordance with section 33D(2) of

Rubber Rule 1955 read with sub-section (3) of section 12 of Rubber Act, 1947. As per the subsection 5 of section 12, if any owner or manufacture fails to furnish, within the time prescribed, the return, referred to in sub- section 4 or furnishes a return which the board has reason to believe is incorrect or defective, the Board may assess the amount of the duty of excise in such a manner as may be prescribed. The proceeds of the duty of excise collected by the board, reduced by the cost of collection as determined by the Central Government shall first be credited to the

Consolidated Fund of India and then be paid to the Central Government and then be paid by the Central Government to the Board for being utilized for the purpose of the Act. Therefore it is clear that under the Act the Board 7OP 818­08 has power to assess. Here the petitioner has obtained license from the

Rubber Board for manufacturing Hawai chappals and Micro Cellular sheets.

The licence was valid from 01-04-1991 to 30-09-1995. The Petitioner has submitted the statuary half yearly returns and remitted cess up to O/M-95 but not applied for renewal of licence and on repeated requests not submitted half yearly returns. As directed by Director (LED), the Asst.

Director (E), Secunderabad visited M/s. Sutlej Rubber Industries (Petitioner) on 16-3-2007 and 12-4-2007 and reported the matter regarding purchasing of N.R. from black markets. In the meantime the petitioner has admitted (in writing) that there was a stock of 725 Kgs. of natural rubber when Asst.

Director (E) and commercial tax officers visited the premises on 1-11-2007.

Thus the petitioner cannot escape saying that he has not violated the

Rubber Act.

13)It is submitted that the petitioner has sent an application on 07-05- 2007 i.e. form D for renewal of their licence but the same was not considered as the petitioner has not submitted the half yearly M returns from O/M-97 to A/S-07 and remitted cess thereon. Whereas it is mandatory for every registered manufacture to submit all the statutory returns even if they fail to renew their licence. And the petitioner herein has failed to renew their licence and also to produce return from the year 1997 to 2007. There is a lapse of 10 years on the part of the petitioner and this was done purposefully and no reasons have been assigned as to why the returns have not been filed. In fact the respondents sent so many requests to submit the M returns and as well as the books of accounts for verification vide letters dated 30-7-2007, 5-9-2007 and 3-10-2007. These letters clearly show that the respondents have asked for the books of 8OP 818­08 accounts as well as half yearly returns. But the petitioner failed to act and mechanically applied for renewal of licence without following the procedure ie., filing returns as well as the books of accounts. Therefore it is very clear that there is gross violation of the Rubber Act, 1947 and the petitioner is not entitled for any licence. Further the petitioner did not opt to submit any satisfactory reply and half yearly returns therefore now the board is compelled to make a provisional assessment as in accordance with section 12 (5) of Rubber Act, 1947 on the basis of the installed capacity of the plant and machinery of the petitioner's unit. Accordingly a quantity of 3,30,000

Kgs. of rubber was assessed for the 22 half yearly periods from O/M-97 to

A/S-07 and demand notice was issued for Rs. 4,65,000/- vide letter dated 10-12-2007, 27-12-2007, 29-2-2008 and 2-4-2008 but the petitioner denied all the charges and claims of the respondents. Only under compelled circumstances the step was initiated for natural justice and only after giving fair and reasonable opportunity to the petitioner. But in the meantime the petitioner has filed an Appeal before this Honorable Court.

It is very clear that the Appeal itself is premature and the petitioner was given reasonable opportunity but the petitioner chose to challenge the assessment. Therefore the Appeal is not maintainable and the Appeal is filed only in order to avoid the payment of Rs.4,65,000/-. In fact the fact of non-filing of the half yearly returns for 10 years has been suppressed by the petitioner and this aspect is to be considered by the Honorable Court.

14)It is further submitted that the Appeal filed by the petitioner is noting but premature Appeal and all the grounds mentioned in the Appeal are beyond truth. Further it is seen from the Appeal that the petitioner has 9OP 818­08 admitted that assessment is made and that Commercial Taxes Officers and present respondents have visited petitioner's unit. All the letters addressed and other correspondence made by the respondents and Commercial

Taxes authorities to the petitioner may be read as part and parcel of this counter. Therefore it is very clear that the petitioner herein violated the provisions of the Rubber Act and on the other hand the petitioner is trying to cover up the mistakes.

15) Basing on the above rival contentions this court framed the following issues..

1. Whether the petitioner is liable to be penalized under the Rubber Act, 1947 for having stopped renewing it's rubber license bearing No.

010001 will effect from the A.Y. 1995-96 onwards till date?

2. Whether the non-renewal of Rubber Licence No.010001 by the petitioner w.e.f 1995-96 lead to an interference that it is procuring natural rubber from the black market without license?

3. Whether the petitioner is liable to submit the annual returns to the respondents despite the petitioner having stopped renewing the rubber license No.010001 w.e.f.1995-96?

4. Whether the show cause notice bearing NO. RBED 24/M- 010001/2007-2008 dated 29.02.2008 is valid and enforceable?

5. Whether the petitioner is entitled to declare the petition demand notice as illegal, null and void, as prayed for?

6. To what relief?

16) This court framed them as issues but this is an appeal under the guise of petition and the same is contemplated under the Rubber Act.

Hence all the issues are considered as points by treating the petition as appeal.

17)To substantiate the case of the petitioner, One Kamalesh Bandari 10OP 818­08 stated to be authorized partner of the petitioner firm has been examined himself as Pw.1. Exs A.1 to A.3 are marked for the petitioner. No evidence is adduced for the respondents.

18)I have heard the counsel for the petitioner, who filed written arguments and perused the written arguments. Though sufficient time is granted the respondent failed to submit the argument. Hence the respondent argument is treated as nil.

19) POINT No.1 :- To decide this point it is just and necessary to see the

Provisions of Rubber Act, 1947. Section 3 of the Rubber Act contains definition clauses. It defines a) Board, b) Dealer, c) Estate, d) Estate

Director e) manufacturer f) Owner. Section 4 of the Act deals with the constitution of the Board. Section 5 deals with vacancies in the Board,

Section 6 Salaries and allowances of the Chairman, Section 7 Committees of the Board, Section 8 functions of the Board, Section 9 Funds of the

Board, Section 10 Registration which is essential to decide this issue. As per

Section 10 every person owning land planted with rubber should be registered as owner and the registration shall continue in force until it is cancelled by the Board. Section 11 Power to prohibit or control imports and exports of rubber, Section 12 imposition of new rubber cess, Section 16 restriction on procession of rubber, Section 18 reports to be submitted by the licensees, Section 19 & 20 Submission of returns and maintenance of accounts, Section 21 Inspection of land which provides powers to inspecting authority to inspect any land, Section 26 contains penalty clauses. As per Section 10 (2) the registration shall continue until it is cancelled by the Board.

11OP 818­08

20)To decide this the evidence of Pw.1 is just and necessary. During the cross of Pw.1 it is admitted that the petitioner has to submit every half yearly returns to the respondent board and that the board issued letters requesting to submit the returns. Witness adds that though he has replied to all their letters and answering the question as Pw.1 submitted the returns and failed to produce the same before the court for inspection.

Accordingly, this issue is answered against the petitioner holding that the petitioner is liable to be penalized under the Provisions of the Rubber Act for his failure to renew the licence or his failure to intimate the same.

21) POINT No.2 :- During the cross examination it is admitted that the petitioner got licence and stopped renewing the licence from 1995-96 onwards. He also admitted that he has not shown accounts or failed to submit the returns to the Board. Pw.1 also admitted that on 01.011.2007 the board officials with the vigilance officials including the commercial department wing visited the factory and found 725 Kgs of natural rubber which suggests that the petitioner without renewing the licence has been doing the business. Hence this court can safely infer that the petitioner has been procuring natural rubber from the black market without renewing the licence.

22) POINT No.3:-According to Rules framed under the Act every licencee shall produce the accounts and particulars to the board as follows :

1. The licencee shall each financial year, " Not later than 30 days after the expiry of the period to. which the return relates to" furnish the same to the board.

2. The Board shall, after checking the accounts and after making such 12OP 818­08 further enquiry as it deems fit, either through its own officers or " through officers of the State. Government or Central Government or such other authorities, assess the amount of excise duty payable by such manufacturer.

3. Every manufacturer shall pay to the Board certified duty of excise at such rate, as-may be notified from time to time, on the quantity of the rubber acquired by him during the periods specified in rule 33(e) along with the return, not later than thirty days after the period to which the return relates to, either in cash at the Board's office at Kottayarn or by money order or by bank draft or by any mode o f payment through bank, payable at Kottayam to the Director (Licensing and Excise Duty), Rubber Board, evidenced by proof of payment.

4. If any manufacturer fails to pay the amount due under sub-rule(1) above within the time prescribed, he shall pay interest at such rate as may be fixed by the Board not exceeding two percent per month from the date o f default till the date of remittance either in cash at the Board's office at

Kottayarn or by money order or by bank draft or through any mode of payment through bank payable at Kottayam to the Director (Licensing and

Excise Duty) Rubber Board.

5. If any manufacturer fails to pay: the amount within the date prescribed in sub-rule (1), the Board may report the fact to the Central Government or the State Government concerned for recovery of the outstanding amount with interest and cost of collection, as an arrear of land revenue."

23)According to the above discussed rules the petitioner totally failed to renew the licence. Hence he has to pay the renewal licence fee as demanded by the respondents on the ground that which is a fiscal policy and a citizen cannot escape and the application of limitation Act is no way concerned in respect of tax matters which is the prerogative right of the government. Accordingly this point is answered.

24) POINT No.4 :- As per the cross examination of Pw.1, when a question 13OP 818­08 is put to Pw.1 specifically as whether the stock of 725 Kgs natural rubber found by Board? Whether it is reduced in writing.

Objection : The stock statement, scene of offence and panchanama recorded by vigilance authorities and respondent board at the time of raid will be conclusive proof of the stock dt. 01.11.2007 and the same has to be produced in this case without this document this question cannot be put.

At this stage Pw.1 admitted that Ex A.3 was received by him.

25) Ex A.1 is copy of notice in the name of Sutlej Rubber Industries, Ex

A.2 is office note dt. 25.10.2007 which shows the dates of inspection. Ex

A.3 is demand notice dt.29.02.2008 to the plaintiff firm seeking the information for non production of records and returns. wherein the petitioner was demanded for the amount of Rs.4,65,000/- which also contains demand notice under Section 12 of the Rubber Act and the same is admitted by the petitioner. Prima facie it appears that the notice under

Ex A.3 is according to Section 12 (6) of the Act. The learned counsel for the petitioner relied on AIR 1978 SC 1571, AIR 1997 AP 53, AIR 1999 1441. To establish the fact that the respondent failed to furnish the account particulars but which is not the case of the petitioner herein, to draw an adverse inference when the respondent fails to attend the witness box but as far as this case is concerned the petitioner never demanded the books of accounts and simply says the respondent failed to adduce any evidence.

The other ruling is discussed by this court regarding the burden of proof earlier which is on the petitioner that the respondent failed to answer the case of the petitioner. But as per the admissions of the Pw.1, Pw.1 miserably failed to appear before the respondent to answer the respondent case and rushed to this court as rightly pointed out by the respondent 14OP 818­08 seeking the cancellation of the demand notice which suggests the intention on the part of the respondent to avoid the amount. Accordingly this point is answered.

26) POINT No.5 :- As far as this relief is concerned though the petitioner says that the notice is illegal but failed to convince the mind of the court how the notice is illegal for the declaration as prayed for. As per the admissions on the record from Pw.1 it supports the case of the respondents than the petitioner and more over the respondent strictly followed the procedure contemplated under the Rubber Act which suggests that the petition is deserved to be dismissed holding that the petitioner is not entitled to the declaratory relief. Though the respondent failed to adduce any evidence which does not reduce the onus on the petitioner heavily in case of declaratory reliefs which is based on equities and the expected equities are not established by the petitioner properly and more over this is an appeal under the guise of petition, hence the respondent need not adduce any evidence and simply he can answer the questions. But nowhere the petitioner challenged the calculation of accounts. Therefore, the non summoning of the accounts no way prejudice to the petitioner on the ground that the petitioner never challenged the accounts and calculations and only challenged the notice as illegal. Therefore, the considered opinion of this court is that the notice is according to law.

Accordingly, this issue is answered against the petitioner.

27) POINT No.6 :- In the result, the petition is dismissed. There shall be no order as to costs.

15OP 818­08

Typed to my dictation by the Stenographer, corrected and

pronounced by me in the open court, on this the 22nd day of June, 2015.

Sd/-

(D.THIRUMALA RAO)

III Additional Chief Judge, City Civil Court, Hyderabad

Appendix of Evidence Witnesses examined

For the Petitioner: For the Respondents :

Pw.1 : Kamalesh BandariNIL

Documents Marked

For the Petitioner ::

Ex A.1 is copy of notice in the name of Sutlej Rubber Industries,

Ex A.2 is office note dt. 25.10.2007

Ex A.3 is demand notice dt.29.02.2008 to the plaintiff firm

For the respondents :

NIL

Sd/-

(D.THIRUMALA RAO)

III Additional Chief Judge, City Civil Court, Hyderabad