Sri.j.jeevan Kumar

IN THE COURT OF THE I ADDITIONAL CHIEF JUDGE,

CITY CIVIL COURT, SECUNDERABAD.

Present : SRI JANGA JEEVAN KUMAR

I Additional Chief Judge

DATED THIS THE 18th DAY OF APRIL, 2024

A.S. NO. 24 OF 2017

Between:

G.Satyanarayana (died per LRs)

1. Mrs. G. Devakkamma W/o late G. Satyanarayana

2. G.Raju S/o late G. Satyanarayana

3. Smt. P. Sujatha W/o Lal Bahadur Shastri

4. Smt. R.B. Sunitha W/o R.B. Arun Kumar -- Appellants AND

1. Mr. G. Narasimha S/o G.Ramulu

2. Smt. T. Marrie Saryamma W/o Marrie Pentaiah

3. Smt. Appala Manjula W/o A. Ramulu --Respondents

On Appeal against the Judgment and Decree dated

19.09.2013 in O.S.No.475 of 2007 passed by the learned III

Senior Civil Judge, City Civil Court, Secunderabad.

O.S. NO. 475 OF 2007

Between:

G.Satyanarayana S/o G.Ramulu--Plaintiff

AND

1. G.Narsimha S/o G.Ramulu

2. T. Marry Sarvamma W/o Marry Pentaiah

3. Appala Manjula W/o A. Ramulu --Defendants :: 2 of 25 :: A.S.No. 24 of 2017

This Appeal is coming before me for final hearing and disposal in the presence of Sri K.Durga Prasad, Advocate for the

Appellants and of Sri Badri Raju, Advocate for Respondent No.1 and of Sri S.Nagesh Reddy, Advocate for Respondent No.2 and of Sri

K.Madhava Rao, Advocate for Respondent No.3 and the matter having been heard and stood over for consideration till this day, this

Court delivered the following :-

J U D G M E N T

1. Initially, this Appeal is filed by the Appellant/Plaintiff challenging

Judgment and Decree dated 19.09.2013 in O.S.No. 475 of 2007 passed by the learned III Senior Civil Judge, City Civil Court,

Secunderabad dismissing the suit. During pendency of the suit, the sole plaintiff/Appellant died and as such, his LRs were brought on record as per the Order dated 25.08.2021 in I.A.No.178/2019.

2.The plaintiff filed the suit in O.S.No.475 of 2007 on the file of

III Senior Civil Judge, City Civil Court, Secunderabad for a direction to the defendantsto execute and register a sale deed in respect of half extent of house bearing No.6-4-434 or as an alternative relief for refund of sale consideration.

3. THE BRIEF AVERMENTS IN THE PLAINT ARE AS FOLLOWS :-

That the plaintiff and defendant No.1 are own brothers and both of them jointly purchased house bearing No.6-4-434 :: 3 of 25 :: A.S.No. 24 of 2017 admeasuring 137.22 sq.yards situated at Bholakpur, Secunderabad from the 2nd defendant for a total sale consideration of Rs.2.40.000/- in 1992. Defendant No.2, who is the vendor of the said property executed a receipt in favour of the plaintiff and defendant No.1 on 07.06.1992 and acknowledged the receipt of sale consideration from said two brothers viz. plaintiff and defendant No.1. Plaintiff and defendant No.1 on 01.02.1999 entered into Family Settlement admitting the purchase of the said H.No.6-4-434 by both of them jointly and also admitted the registered General Power of Attorney executed by defendant No.2 in respect of the purchased property in the name of defendant No.1, who was the Manager/Kartha of the joint family consisting of plaintiff and defendant No.1. It was also agreed by the plaintiff and defendant No.1 to have a Family

Settlement and it was put in writing on 01.02.1999 and executed in presence of witnesses. It was agreed through the Family Settlement that the consent of both the purchasers namely plaintiff and defendant No.2 is must for alienation of the property purchased by them jointly from defendant No.2. Since the date of purchase both the plaintiff and defendant No.1 are enjoying the said property bearing H.No.6-4-434 by letting half of the property by the plaintiff and the other half by the defendant No.1. Rents are being collected and enjoyed separately for their separate portions from the tenants.

:: 4 of 25 :: A.S.No. 24 of 2017

Plaintiff and defendant No.1 being the joint purchaser of H.No.6-4- 434 from defendant No.2, partitioned the same and enjoying the portions of the property that fell to their individual shares. The northern portion fell to the share of the plaintiff and he is enjoying it by letting to tenants. Both the brothers have drawn a sketch plan showing their individual portions and both of them put their signatures on the sketch plan in the presence of witnesses. While so, disputes arose between plaintiff and defendant No.1 with regard to domestic matters and defendant No.1 in order to cause loss to the plaintiff and in revenge against the plaintiff entered into an agreement of sale with defendant No.3 against himself and defendant No.2, who is the original owner of the property.

The sale agreement in favour of defendant No.3 executed by defendant No.1 as General Power of Attorney Holder of defendant

No.2 cannot stand in law as the property involved in the agreement of sale with defendant No.3 was already purchased jointly by the plaintiff and defendant No.1, sharing sale consideration equally. It being subsequent, no rights will accrue to the defendant No.3 under the agreement of sale entered with the defendant No.1 as defendant

No.1 is not the owner of the entire house No.6-4-434 due to its purchase jointly by the plaintiff and defendant No.1. Further :: 5 of 25 :: A.S.No. 24 of 2017 defendant No.2 is also having no right to alienate the said property to any other person or persons as she already sold it to the plaintiff and defendant No.1 jointly by receiving the sale consideration from both the purchasers. At the time of partition the defendant No.1 gave all the original documents pertaining to the property to the plaintiff.

4.It is further averred in the plaint that defendant No.3 filed suit in O.S.No. 105/2005 on the file of Hon'ble I Additional Chief Judge,

City Civil Court, Secunderabad for specific performance of her

Agreement of Sale dated 20.06.2005 said to have been executed by defendant No.1 as General Power of Attorney of defendant No.2.

Defendant No.3 filed the sad suit against defendants No.1 and 2 only at the behest of defendant No.1. Plaintiff filed petition under Order 1

Rule 10 of CPC to allow the plaintiff to come on record as defendant

No.3 in the said suit in O.S.No. 105/2005. The said petition was allowed and aggrieved by the said order, the defendant No.3, who is the plaintiff in O.S No.105/2005 preferred CRP No.6508/2006 before

Hon'ble High Court of Judicature of A.P. and Hon'ble High Court

stayed further proceedings pursuant to the Order dated 28.11.2006 made in I.A.No.39/2006 in O.S.No.105/2005 and as such this plaintiff could not file his written statement in O.S.No.105/2005. On :: 6 of 25 :: A.S.No. 24 of 2017 coming know about the suit in O.S.No.105/2005, plaintiff approached the defendant No.2 to execute registered sale deed in his favour for half extent of the house property jointly purchased by him and defendant No.1. Defendant No.2 bluntly refused to execute the sale deed on 10.11.2006 in favour of plaintiff without the presence of joint purchaser, who is defendant No.1. Plaintiff is always ready and willing to perform his part of the sale contract for providing the necessary stamp papers under stamp Act and also registration charges to have the registered sale deed. In order to protect his rights, the plaintiff is forced to file this suit for specific performance of sale made by the defendant No.2 in 1992 to the extent of half share of this plaintiff in the H.No.6-4-434 which was purchased jointly by this plaintiff and defendant No.1.

5. WRITTEN STATEMENT OF DEFENDANT NO.1 :-

Defendant No.1 filed written statement alleging that plaintiff and defendant No.1 are own brothers and both of them jointly purchased the house bearing No.6-4-434 admeasuring 137.22 sq yards equal to 115.3 sq.mts situated at Bholakpur, Secunderabad from defendant No.2 for a total sale consideration of Rs.2,40,000/- in the year 1992. The said vendor Smt. Marie Sarvamma also delivered possession and executed a receipt towards receipt of :: 7 of 25 :: A.S.No. 24 of 2017

Rs.2,40,000/- in favour of the plaintiff and this defendant on 07.06.1992. Although there was no written partition of the house, yet the plaintiff and defendant No.1 by way of Family Settlement orally partitioned the suit schedule house and have been enjoying the individual shares separately. The northern portion fell to the share of plaintiff and southern portion fell to the share of this defendant. Both the plaintiff and this defendant let out their respective portions to the tenants and are enjoying the rents. A sketch plan was drawn showing the shares of plaintiff and defendant

No.1 and the same was signed by both in the presence of witnesses.

Unfortunately, defendant No.1, who has a friend by name A.Gopal under the pretext of helping defendant No.1, misguided defendant

No.1 and dragged him to commit wrongs by ill advising him taking undue advantage of the fact that defendant No.1 wholly trusted the said A.Gopal. The said A.Gopal advised that defendant No.1 should execute an agreement of sale nominally in the name of his sister-in- law, A.Manjula as if he was agreeing to sell away the whole house to her. The said A.Gopal misrepresented that if this is done then plaintiff would come for a compromise to settle family financial disputes. This defendant No.1 did not understand that A.Gopal was planning to usurp the house by playing tricks on him. This defendant believed A. Gopal and executed a sham document i.e. an agreement :: 8 of 25 :: A.S.No. 24 of 2017 of sale as if he was agreeing to sell the whole house to the third defendant. Then he got a suit filed by defendant No.3 and took this defendant No.1 to his advocate and got the written statement drawn up by him consenting to the plaint averments in O.S.No. 105/2005 on the file of I Additional Chief Judge, City Civil Court, Secunderabad filed by the defendant No.3. It was only when this defendant came to know that Sri. A. Gopal was strictly acting upon the said agreement through defendant No.3, he realised that Sri. A. Gopal in connivance with his sister-in-law has been playing a trick on him to knock away the house and also amounts. Thus, A.Gopal in collusion with defendant No.3 has sought to capitalize the dispute between this defendant and the plaintiff in respect of the suit schedule property. Thus, it was not the intention of defendant No.1 to deceive the plaintiff or to take any alleged revenge against the plaintiff.

General Power of Attorney executed by defendant No.2 in favour of this defendant was for the benefit of the plaintiff and defendant

No.1.

6.This defendant No. 1 had no right to solely enter into any agreement with any third parties or with defendant No.3 for sale of the suit house. This defendant was not the sole owner of the house.

This defendant was holding original documents while partitioning the :: 9 of 25 :: A.S.No. 24 of 2017 property and thus, helped A. Gopal to throw this defendant into troubles. This defendant has no exclusive right to sell the suit schedule property. The suit filed in O.S.No. 105/2005 on the file of I

Additional Chief Judge, City Civil Court, Secunderabad was not filed

by defendant No.2 but, it was filed by defendant No.3. The

Agreement of Sale dated 20.06.2005 was a sham document brought into existence by ingenuity of the said A Gopal and defendant No.2 is also in collusion with A. Gopal. In place of general power of attorney executed by defendant No.2 in favour of defendant No.1, he approached defendant No.2 to execute a sale deed to which she agreed. But, in practice, she has been postponing it. In the said circumstances, this defendant has no objection for the relief claimed for in the suit filed by plaintiff.

7. WRITTEN STATEMENT OF DEFENDANT NO.3 :-

Defendant No.3 filed her written statement alleging that plaintiff and defendant No.1 are own brothers, but the contention that both of them jointly purchased the house bearing No.6-4-434 admeasuring 137.22 sq.yards situated at Bholakpur, Secunderabad from defendant No.2, is absolutely false and baseless. Defendant

No.2 is the original owner of the suit schedule premises. Defendant

No.2 executed registered general power of attorney in favour of :: 10 of 25 :: A.S.No. 24 of 2017 defendant No.1, G.Narasimha in the year 1992 vide registered

Doc.211/1992 dated 19.06.1992. The alleged receipt dated 07.06.1992 said to have been executed by defendant No.2 is a fabricated document for the purpose of this case. Defendant No.1 executed agreement of sale in favour of defendant No.3 dated 20.06.2005 for total sale consideration of Rs. 12 lakhs. Defendant

No.3 paid Rs.6 lakhs towards advance sale consideration to defendant No.1. Plaintiff and defendants 1 and 2, to defeat the claim of the defendant No.3 filed the present suit. Plaintiff and defendants 1 and 2 have colluded to cause loss to defendant No.3. The alleged family settlement is a fabricated document to cause loss and defeat the claim of defendant No.3. Property was not purchased jointly.

Defendant No.1 is only a general power of attorney holder individually. Consent of the plaintiff to sell the suit premises is not required by the defendant No.1. Plaintiff is not entitled for the relief claimed. Defendant No.2 independently executed general power of attorney and registered in favour of defendant No.1 individually.

Plaintiff has no right of any nature in the suit schedule property. The entire premises is in occupation of M. Hanumanthu and his family members. A.Hanumanthu filed O.S.No. 1494/2005 on the file of I

Junior Civil Judge, City Civil Court, Secunderabad against defendant

No.1 for injunction. The suit was transferred to Principal Rent :: 11 of 25 :: A.S.No. 24 of 2017

Controller at Secunderabad and renumbered as O.S.No.1349/2007 and the same is pending. Defendant No.1 herein filed written statement admitting that defendant No.1 executed agreement of sale in favour of defendant No.3 and possession of the property to be delivered to defendant No.3. Defendant No.3 filed

O.S.No.105/2005 against defendant No.1 on the file of I Additional

Chief Judge, City Civil Court, Secunderabad for specific performance of Agreement of Sale dated 20.06.2005 in respect of suit schedule property. Defendant No.1 filed written statement in

O.S.No.105/2005 admitting the execution of agreement of sale and

receipt of Rs.6 lakhs towards advance sale consideration and balance

Rs. 6 lakhs deposited in the court as per order of I Additional Chief

Judge, Secunderabad. Plaintiff herein filed impleading petition in

O.S.No. 105/2005 and the same was allowed. Defendant No.3

preferred civil revision petition against said order and obtained stay.

Present suit for specific performance is not maintainable and liable to be dismissed. Defendant No.1 filed amendment petition to amend entire written statement by denying entire plaint averments and the said amendment petition was dismissed. Once the defendant admitted in the written statement that the averments of the plaint are true and correct. Such admission in written statement cannot be amended by denying the same. Plaintiff is not the joint purchaser of :: 12 of 25 :: A.S.No. 24 of 2017 the suit schedule property. There is no agreement between the plaintiff and defendant No.2. Hence, the question of ready and willingness to perform sale contract does not arise. When the plaintiff has no right of any nature in the suit property, the question of protecting the right does not arise. The suit is liable to be dismissed, which is filed by the plaintiff and defendants No.1 and 2 to defeat the claim of this defendant.

8.Basing the rival contentions of the parties, the trial Court framed the following issues and additional issues :-

1. Whether the plaintiff is entitled to specific

performance of Agreement of Sale in respect of

suit schedule property ?

2. Whether the plaintiff is entitled to refund of the

sale consideration as an alternate relief, if he is

not entitled to the first relief?

3. To what relief?

ADDITIONAL ISSUES :-

1. Whether the agreement of Sale dated 20.06.2005 is a genuine document. If so, is it enforceable?

2. Whether the plaintiff and defendant No.2 jointly purchased the suit schedule property?

3. Whether the Family Settlement Deed dated 01.02.1999 is a true document?

:: 13 of 25 :: A.S.No. 24 of 2017

9.During the course of trial before the trial Court, PWs 1 to 3 were examined and Ex.A1 to Ex.A12 were marked on behalf of the plaintiff. Whereas, on behalf of the defendant, DWs 1 to 3 were examined and Ex.B1 to Ex.B9 were marked.

10.After considering the oral and documentary evidence on record, the trial Court dismissed the suit. Being aggrieved by the said Judgment, the Plaintiff preferred the present Appeal by challenging the same on various grounds, which are urged as follows:

1. The Judgment and Decree dated 19.09.2013 is

against law, weight of evidence and probabilities

of the case.

2. The Lower Court ought not to have suo moto

reopened the suit and directed the parties to

produce additional evidence after the final

arguments in the suit and reserved the suit for

judgment.

:: 14 of 25 :: A.S.No. 24 of 2017

3. The Lower Court ought to have seen the fact that

the Appellant is in peaceful possession and

enjoyment of the suit schedule property.

4. The Lower Court ought to have taken adverse note

of the fact that the Defendant No.3 in the suit has

not filed the Agreement of Sale, through which,

she was claiming rights in the suit property.

5. The Lower Court ought to have seen the fact that

the Appellant is in peaceful possession and

enjoyment of the suit schedule property, as an

absolute owner especially in view of the

documentary and oral evidence presented by the

Appellant/Plaintiff.

6. The Lower Court has given undue weightage to the

bald allegations made Respondent/Defendant No.3

in proof of which she has not produced even a

shred of evidence and dismissed the suit basing on

such bald allegations

7. The Lower Court has omitted to note that the

Appellant/Plaintiff has already filed an additional

chief examination affidavit in which the

:: 15 of 25 :: A.S.No. 24 of 2017

Appellant/Plaintiff has admitted that certain

typing errors have crept inadvertently and sought

the permission of the Court to rectify the same and

the Court was pleased to grant permission for the

same and has taken the Additional Chief

Examination of PW1 on file as such the above

unintended mistakes stood rectified. But, the

Lower Court has not perused/considered the

complete record on the file of the suit and has

formed erroneous opinion and has passed the

Judgment and Decree basing on such opinion

rather than on the evidence on record.

8. The learned trial court has caused prejudice to the

Appellant, as basing the entire judgment only on

presumption, that the Respondent has shifted the

burden on to the Respondent, which cannot be

taken into consideration to decree the suit against

the Appellant, which cause serious doubt on the

authenticity and reasons or grounds on which the

impugned judgment :: 16 of 25 :: A.S.No. 24 of 2017

11. In view of the rival contentions raised by both the parties, the points that arise for consideration are :-

1) Whether the plaintiff is entitled for declaration and injunction as prayed for ?

2) Whether the Judgment and Decree dated 19.09.2013 in O.S.No.475 of 2007 passed by the learned III Senior Civil Judge, City Civil Court,

Secunderabad is in accordance with law and facts of the case?

13. POINT NO.1 :- Whether the plaintiff is entitled for declaration and injunction as prayed for ?

This being an Appellate Court, the evidence on record can be reappreciated to find out whether any illegality is committed by the

Trial Court in dismissing the suit.

MATERIAL EVIDENCE OF THE PLAINTIFF:-

14.It is admitted by the plaintiff as PW1, G.Satyanarayana that he came to know recently that Defendant No.3 purchased the suit schedule property from Defendant No.1. Defendant No.3 filed

O.S.No. 105/2005 on the file of the I Addl. Chief Judge, CCC,

Secunderabad. Except Ex.A1, he has no other document to show :: 17 of 25 :: A.S.No. 24 of 2017 that he purchased the suit schedule property. He filed the suit for ½ share of the house. There is no prayer in this suit for partition of the said house. He does not know about the execution of Agreement of

Sale by Defendant No.1 as GPA Holder of Defendant No.2 in favour of Defendant No.3. After payment of total sale consideration,

Defendant No.2 executed Ex.A3 in favour of Defendant No.1. In

Ex.A3, it was mentioned that Defendant No.1 should sell the property and receive the sale consideration and be paid to defendant

No.2. There is one joint family house, which is not yet divided among Defendant No.1, his deceased brother and he. Till today, he did not seek partition of that house.

15.It is the evidence of PW2, G.Sunder that he attested the receipt of Rs. 1,50,000/- executed on a stamp paper. On the said document, plaintiff, defendant No.1 and 2, he and one Yadagrii signed. He does not know the number of pages of the document on which he signed, but he signed on the 1st page. He did not observe whether he and others used the same pen or different pens are to sign on Ex.A1. He does not know who scribed Ex.A1 but by the time it was placed before him, it was prepared. He cannot identify the hand writing of the scriber. He did not observe whether he attested first or Yadagiri attested it first.

:: 18 of 25 :: A.S.No. 24 of 2017

16.It is the evidence of PW3, M.Vijaya Kumar that there is no proof to show that he was physically present at the relevant point of transaction between Defendant No.1 and 2.

17.It is the evidence of DW1, G.Narasimha that initially in

Ex.A12 his name was typed as vendee. But, when they objected, subsequently, the name of the plaintiff was inserted above his name.

It was done before execution of Ex.A12. Plaintiff took the link documents from the executant of Ex.A12. He does not know defendant No.3. Ex.A9 was executed in 1989 and it was notarized in 1990.

18.It is the evidence of DW2, Battu Laxminarasaiah that he did not attest Ex.A12.

19.It is the evidence of DW3, A.Ramulu that A.Gopal Yadav is his elder brother and his elder brtoher is residing in the premises

No.6-4-53, Bholapur, Secunderabad which is near to his house. He got acquaintance with the plaintiff and Defendant No.1 in sale transactions. Ex.A2 (Settlement Deed) is a fabricated document. As per present market value, plaint schedule property is worth Rs.20

Lakhs. He paid Rs. 6 Lakhs to Defendant No.1 in cash. Defendant

No.3 also got knowledge about the present transaction as she is his wife. Defendant No.2 is not his relative. On enquiry with defendant :: 19 of 25 :: A.S.No. 24 of 2017

No.2, she told that she executed GPA only in favour of defendant

No.1 and not against any other person. Ex.B9/Order did not whisper about Panchayat held by the elders. He does not know about the circumstances that existed between the husband and wife at that time. In Ex.B9, there is no mention about plaintiff. He is claiming suit schedule property basing on the Agreement of Sale executed by

Defendant No.1 on 20.06.2005. He did not file Agreement of Sale alleged to have been executed by Defendant No.1. Since the

Agreement of Sale was recorded in O.S.No.105 of 2007 on the file of

I ACJ Court, he did not file the same in the present suit. He can provide the CC of Agreement of Sale. At the time of execution of

Sale, defendant No.1, daughter of Defendant No.1 and his wife and plaintiff and plaintiff’s wife were present. The house belongs to defendant No.1 and in the next portion, plaintiff is residing.

Agreement was entered in respect of house bearing No.6-4-434,

Bholakpur and the place of execution is 6-4-35/5.

20. CRUCIAL DOCUMENTS ON BEHALF OF THE PLAINTIFF :-

The Plaintiff is relying on Receipt dated 07.06.1992 under

Ex.A1 and contended that Defendant No.2 received Rs.2,40,000/- towards total sale consideration and handed over the physical possession of the house bearing No. 6-4-434, admeasuring 137.22 :: 20 of 25 :: A.S.No. 24 of 2017 sq. yards. Registration of the said property will be executed in favour of plaintiff and defendant No.1 as and when demanded.

Ex.A2 is the Family Settlement Deed dated 1.2.1999

between the plaintiff and defendant No.1, under which, it was mentioned that both the plaintiff and defendant No.1 partitioned the property orally. The Second Party consented for giving of GPA in favour of Defendant No.1 by Defendant No.2. Ex.A2 further shows that consent of plaintiff and defendant No.1 must be there for alienation of the suit schedule house.

Ex.A3 is the registered GPA executed by defendant

No.2, Smt. Marrie Sarvamma in favour of Defendant No.1,

G.Narsimha on 19.6.1992 stating that she is sole owner of the suit property bearing No. 6-4-434 to an extent of 137.2 sq. yards and she is not in a position to supervise the said property. So, she appointed defendant No.1 to sign sale deeds, etc. on her behalf.

Ex.A4 is the Gift Deed, dated 29.12.1982, through which defendant No.2 became the owner of the suit property.

Ex.A12 is the Agreement of Sale dated 5.10.1989

executed by defendant No.2 in favour of Defendant No.1 and plaintiff in respect of the suit property.

:: 21 of 25 :: A.S.No. 24 of 2017

21. CRUCIAL DOCUMENTS ON BEHALF OF THE DEFENDANTS :-

Ex.B1 to Ex.B8 are CC of proceedings pertaining to the suits in O.S.No.1494/2005 and O.S.No. 105/2005 and also

O.P.No.433/2008.

As seen from the entire material on record including the rival contentions of the plaintiff and defendants, the question arises that:-

22. POINT :- Whether the plaintiff is having any right or

valid document to seek for specific performance of

Agreement of Sale?

As per the case of the plaintiff, he and defendant No.1 being the brothers purchased House bearing No.6-4-434 admeasuring 137.22 sq. yards situated at Bholakpur, Secunderabad in the year 1992 from Defendant No.2 and Defendant No.2 executed a receipt

dated 7.6.1992. As per the said contentions of the plaintiff, plaintiff

is trying to enforce the Agreement of Sale executed in the year 1992 and also receipt dated 7.6.1992. But, Ex.A12 shows the sale consideration as Rs.2,80,000/- only. But first page of Agreement of

Sale creates doubt about the date and name of the plaintiff,

G.Satyanarayana in the said Agreement. All the lines in the concerned page of Ex.A12 are in similar lane. But, whereas, the :: 22 of 25 :: A.S.No. 24 of 2017 line containing the name of plaintiff is not in the alignment with the other lines. Even if we examine the last page i.e. 3rd page of

Ex.A12 shows that G.Satyanarayana’s signature is mentioned below the signature and name of Defendant No.2. Signature of plaintiff appears to be inserted between the names of Defendant No.2 and

Defendant No.1.

Since Ex.A12 is the unregistered Agreement of Sale, one can bring old non-judicial stamp paper and can create document like

Ex.A12. Therefore, Ex.A12 does not inspire confidence as to its genuineness.

It appears that it is created for the purpose of this case. Date of the document is 5.10.1989. But, attestation by notary was made on 17.2.1990 i.e. after four months of Ex.A12. Such attestation by notary on 17.2.1990 do not make the Agreement of

Sale/Ex.A12 as genuine and valid one. So, this Court is the opinion that Ex.A12 is not a genuine document and it cannot be enforceable.

Another important lacunae in Ex.A12 is that Defendant No.2’s thumb impression was there above the typed word “Vendor” and under the said word, the word “Vendee and name of defendant

No.2 was typed. But, the name of “G.Satyanarayana” was not :: 23 of 25 :: A.S.No. 24 of 2017 typed under his signature. So, it appears that signature of plaintiff was inserted between the signatures of defendants No.1 and 2. As such, this Court is of the opinion that Ex.A12 is not valid document and it is fabricated, created for the purpose of this case.

23.As seen from Ex.A12, the Agreement of Sale was alleged to be executed by defendant No.2 in favour of Plaintiff and Defendant

No.1 on 5.10.1989. Defendant No.2 received Rs.1,00,000/- and the remaining consideration of Rs. 1,80,000/- will be paid at the time of registration i.e. within three months from the date of

Agreement of Sale. But, Ex.A1 shows that on 1.5.1992, defendant

No.2 received Rs.90,000/- and on 7.6.1992, i.e. on the date of

Ex.A1, Defendant No.2 received Rs.1,50,000/- that is in total

Defendant No.2 received Rs.2,40,000/-. But, as per Ex.A12, the consideration is Rs.2,80,0000/- but, not Rs.2,40,000/-. So, Ex.A1 and Ex.A12 are inconsistent.

24.Ex.A3 is unregistered Family Settlement Deed dated 1.2.2019, between plaintiff and defendant No.1. It appears that plaintiff and defendant No.1 colluded together to avoid sale made by Defendant No.1 in favour of Defendant No.3. Ex.A2 is not registered one. So, it can also be easily created.

:: 24 of 25 :: A.S.No. 24 of 2017

25.Further more, the genuine document is GPA executed by

Defendant No.2 in favour of Defendant No.1 authorizing Defendant

No.1 to execute a sale deed in respect of the suit schedule property. The said GPA is dated 19.6.1992 wherein Defendant No.1 gave authorization to Defendant No.2. Ex.B7 shows that Defendant

No.3 got Judgment in her favour in O.S.No.105/2005 for specific performance directing the defendants No.1 and 2 to execute Sale

Deed in favour of Defendant No.3 in respect of the suit property on 10.10.2007. No evidence is adduced by the plaintiff to show that the decree in favour of defendant No.1 did not become final.

26.In view of the discussion made supra, it appears that defendant No.1 alone purchased the property from defendant No.2 and got GPA and they sold the same to Defendant No.3. Defendant

No.1 neither purchased the property nor got GPA from Defendant

No.2, to avoid sale of suit property in favour of Defendant No.3, the present suit is filed on fabricated documents i.e. Ex.A1, Ex.A2 and

Ex.A12. So, the plaintiff is not entitled for specific performance in respect of suit schedule property. When there is no Agreement of

Sale between plaintiff and Defendant No.2, question of refund of amount does arise. Plaintiff and Defendant No.1 never purchased the suit property and that the Family Settlement Deed dated :: 25 of 25 :: A.S.No. 24 of 2017 1.2.1999 is a fabricated document for the purpose of case.

Therefore, I hold Point No.1 as against the plaintiff holding that plaintiff is not entitled for specific performance as prayed for.

27. POINT NO.2 :- Whether the Judgment and Decree dated

19.09.2013 in O.S.No.475 of 2007 passed by the learned III

Senior Civil Judge, City Civil Court, Secunderabad is in

accordance with law and facts of the case?

The Judgment and Decree dated 19.09.2013 in O.S.No.475 of 2007 passed by the learned III Senior Civil Judge, City Civil Court,

Secunderabad is in accordance with law and needs no interference.

This Court holds the Point No.2 accordingly.

28.In the result, the Appeal is hereby dismissed.

Typed to my dictation, corrected and pronounced by me in the open Court on this the 18th day of April, 2024.

I ADDITIONAL CHIEF JUDGE,

CITY CIVIL COURT, SECUNDERABAD.

APPENDIX OF EVIDENCE - NIL

I ADDITIONAL CHIEF JUDGE,

CITY CIVIL COURT, SECUNDERABAD.

IN THE COURT OF THE I ADDITIONAL CHIEF JUDGE,

CITY CIVIL COURT, SECUNDERABAD.

Present : SRI JANGA JEEVAN KUMAR

I Additional Chief Judge

DATED THIS THE 16th DAY OF APRIL, 2024

A.S. NO. 2 OF 2019

Between:

1. Mr. J. Mahender Jain (Died per Lrs)

2. Sm.t Aruna Kumari Jain W/o J. Mahender Jain

3. Sakshi Jain D/o J. Mahender Jain

4. Meet Jain S/o J. Mahender Jain -- Appellants

AND

The Deputy Commissioner, Greater Hyderabad Municipal Corporation --Respondent

On Appeal against the Judgment and Decree dated

31.10.2018 in O.S.No.107 of 2014 passed by the learned I

Junior Civil Judge, City Civil Court, Secunderabad.

O.S. NO. 107 OF 2014

Between :-

Mr. J. Mahender Jain S/o Jayantilal Jain -- Plaintiff

AND

The Deputy Commissioner, Greater Hyderabad Municipal Corporation --Defendants

This Appeal is coming before me for final hearing and disposal in the presence of Sri Wasim Ahmed Khan, Advocate for the :: 2 of 22 :: A.S.No. 2 of 2019

Appellants and of Sri R.Sudhakar, Advocate for Respondent and the matter having been heard and stood over for consideration till this day, this Court delivered the following :-

J U D G M E N T

1. Initially, this Appeal is filed by the Appellant/J.Mahender Jain challenging Judgment and Decree dated 31.10.2018 in O.S.No. 107 of 2014 passed by the learned I Junior Civil Judge, City Civil Court,

Secunderabad, dismissing the suit. During pendency of the appeal, the sole Appellant/ J. Mahender Jain died and his LRs were brought on record as per Orders dated 10.02.2023 in I.A.No.1410 of 2022.

2.The plaintiff filed the suit in O.S.No.107 of 2014 on the file of I

Junior Civil Judge, City Civil Court, Secunderabad for declaration of impugned Notice dated 14.2.2014 issued under Sec. 452 of the HMC

Act is bad in law, illegal void and ultravires and to set side the same and perpetual injunction against the defendant restraining it from interfering with the plaintiff’s possession or from demolishing the suit schedule property.

3. THE BRIEF AVERMENTS IN THE PLAINT ARE AS

FOLLOWS :-

The plaintiff is the absolute owner and possessor of property bearing premises No.8-1-26 to 28, Shop No.3, situated at :: 3 of 22 :: A.S.No. 2 of 2019

Shivajinagar, Market Street, Secunderabad, having purchased the same under registered Sale Deed dated 11.03.2010. After purchasing the suit schedule property, he is exercising all the rights of ownership and possession by letting out the same to a tenant by name Gopalakrishna. The GHMC has already assessed the schedule property in the municipal records in the name of the

Plaintiff and they have given the number as 8-1-26 to 28, Shop

No.3 and collecting Commercial property tax from the Plaintiff, after duly assessing them in their property assessment register.

While so, the officials of the Defendant came to the suit property on 15.02.2014 and the I Junior Civil Judge, City Civil Court,

Secunderabad has directed the GHMC to demolish II and III Floor of the above building in a suit vide O.S.No.779/2010 filed by

K.Lakshmi, a neighbour against the owners of the above property.

In said case, the owners filed A.S.No. 16/2014 on the file of the I

Additional Chief Judge, City Civil Court, Secunderabad and

obtained interim suspension of the lower court Judgment and

Decree date 4.12.2013 in I.Α.Νο.318/2014. Thereafter, the

Defendant has issued a notice dated 14.02.2014 under Section 452 of GHMC Act interalia contending that originally the owner has obtained permission for residential purpose and converted the same into commercial shop and the Plaintiff was asked to submit :: 4 of 22 :: A.S.No. 2 of 2019 reply within 7 days. Hence, the plaintiff has submitted a detailed reply dated 19.02.2014 stating that the notice is bad in law and contrary to the provisions of GHMC Act and that she is not aware that the owners of the building have commenced the work without issuing notice under Section 440 of the HMC Act, after obtaining the Sanction or they have contravened the terms and conditions of the Sanction and committed deviations and she is not aware about the issuance of Sec.452 notice to the owners on 19.06.2009, as the owners never informed to her. The plaintiff is not aware that the owners have filed O.S.No.498/2009, on the file of the City Civil

Court or about obtaining injunction order, as she was not party to it. Similarly, the Plaintiff is also not aware about the dismissal of

O.S.No.498 and 335 of 2009 filed by the owners, as he was not

party to them. He is not aware about filling of W.P.No.2691/2011 by Smt.K.Lakshmi or about filing of W.P.No.28258/2012 by

P.Krishnamurthy, as the Plaintiff was not party to it. The plaintiff is also paying the property taxes regularly and at no point of time, the plaintiff was not informed by the GHMC that the schedule property was originally meant for residential use, but now being used for commercial purpose. Now after so many years, the

Defendant has now for the first time issued the impugned notice

dated 14.2.2014, informing the Plaintiff that residential portion is

:: 5 of 22 :: A.S.No. 2 of 2019 converted into commercial one by the Builder. The impugned notice issued by the Defendant/GHMC is not applicable to the

Plaintiff, as he is not erecting or erected the suit property/building.

The suit property is not creating any nuisance or problem to the public nor its existence is posing any threat to the common public.

The Plaintiff has already let-out the above mulgi to a tenant in the year 2010 itself and ever since, the tenant is in possession of the same. The impugned notice is completely illegal, arbitrary and unconstitutional and also bad in law and contrary to the provisions of GHMC Act and therefore, the same has to be declared as void, illegal and not binding on the Plaintiff. The officials of the

Defendant have come to the suit property on 22.02.2014 and threatened the Plaintiff and others with dire consequences that they will come and demolish the suit property. However, on the resistance of the Plaintiff and other occupiers of the adjacent mulgies, the officials of the Defendant went away, leaving threats that they will come again with more force and demolish the suit property. Now, the plaintiff is apprehending that the

Defendant/GHMC may any time come and demolish the suit property, in which case, the Plaintiff shall suffer heavy and irreparable loss. Hence the Plaintiff is constrained to file the above suit for Declaration and Consequential Injunction restraining the :: 6 of 22 :: A.S.No. 2 of 2019

Defendant/GHMC from interfering with the Plaintiff's peaceful possession or from demolishing the suit property

4. DEFENDANT FILED WRITTEN STATEMENT :-

The defendant denied the averments mentioned in the plaint and submitted that the suit is not maintainable either in law or facts. The Plaintiff filed the present suit against the defendant without issuing notice under Sec.685 of HMC Act, which is mandatory. It is submitted by the defendant that Smt. K.Lakshmi has filed a suit in O.S.No 779 of 2010 against GHMC and Jamshed

Hall Trust and the same is decreed on 04.12.2013 with the

Following Judgment "In the result, suit is decreed without costs by granted perpetual Injunction restraining defendants 1 to 3 from carrying out any further construction activity in the schedule B property. Further, defendants are directed to remove the illegal constructions in the ‘B’ schedule property, which are affecting the easementary rights of the plaintiffs". As per the above order, the officials of the Defendant Corporation has issued final notice under

Sec. 636 of HMC Act, 1955 upon Jamshed Hall Trust and demolished the deviations and illegal constructions, which are in possession of Jamshed Hall trust. For the other owners and the

Plaintiffs, the officials of the Defendant corporation have issued the :: 7 of 22 :: A.S.No. 2 of 2019 show cause notice under Sec.452 of the HMC Act, 1955 duly giving (7) days time on 14.02.2014. The plaintiff and other owners submitted their explanations on 20.02.2014. Aggrieved by the action initiated by the defendant corporation, Jamshed Hall Trust has filed appeal suit in A.S.No.16 of 2014 and the Plaintiff has filed the present suit. It is the duty of the Plaintiff to verify the sanctioned plan before purchasing any property and she cannot submit that she is not aware of anything. It is a fact that the building permission has been granted to Jamshed Hall Trust for the proposed construction of ground and first floor for residential purpose vide permit No.173/81 dated 29.04.2009 in the File

No.3277/TPS/C-18/NZ/ GHMC/B5/2008 within premises No.8-1-26 to 28 situated at Market street, Secunderabad. While constructing the building Jamshed Hall Trust resorted to an illegal and unauthorized digging of ground and laid the slab for cellar floor, which is not covered by the sanctioned plan. Hence, the officials of the defendant corporation have issued the show cause notice under Sec.452 of the HMC Act, 1955, dated 18.06.2009 upon

Jamshed Hall Trust. The Jamshed Hall Trust without submitting their explanation have suo-motto approached the Hon'ble City Civil

Court in I.A.No.635/2009 in O.S.No 498/2009 to safeguard their illegal and unauthorized construction of cellar, which are not :: 8 of 22 :: A.S.No. 2 of 2019 covered by the sanctioned plan. Under the shelter of the court orders, Jamshed Hall Trust has constructed the building consisting of cellar, ground + (3) upper floors and partly fourth floor and converted the residential building into commercial purpose. It is fault of the Plaintiff since she has purchased the property without

Verifying the sanctioned plan. It is submitted by the defendant that Smt. K.Lakshmi has also filed Writ petition No. 2691 of 2011

before the Hon'ble High Court against GHMC & Jamshed Hall Trust

with a prayer to direct the GHMC to take steps for the removal of illegal construction made by Jamshed Hall Trust in the premises bearing No. 8-1-26(old No. 6828), situated at Shivaji Nagar,

Market street, Secunderabad. Further, another neighbour Sri

P.Krishna Murthy has also filed W.P.No 28258 of 2012 against

GHMC & Jamshed Hall Trust with a prayer to direct GHMC to remove all the illegal constructions made by the Jamshed Hall

Trust at the Premises bearing No. 8-1-26 to 28 (old No. 6828), situated at Shivaji Nagar, Market street, Secunderabad. In terms of judgment and decree in O.S.No.779 of 2010, the officials of the defendant corporation have issued the show cause notice under

Sec.452 of the HMC Act, 1955 on 14.02.2014. The plaintiff himself is requesting to regularize the deviations, which clearly indicates that the plaintiff is aware of the deviations and illegal construction.

:: 9 of 22 :: A.S.No. 2 of 2019

Moreover, at present, there is no Building Regularization Scheme.

The Building Penalisation Scheme was introduced in the year 2008 for regularization of the constructions made before 15.12.2007.

Hence, the construction made by the plaintiff is not applicable under Building Penalization Scheme. Moreover, the Building

Penalisation scheme is closed on 31-05-2013. Further, the Building cannot be regularized under Section 455-A of the HMC Act, 1955 since the building is constructed in violation of required mandatory setbacks. The vehicles coming to the shops are parking on the road margin and causing inconvenience to the general public as well as the neighbours, who have filed the complaint petitions and also suits & writ petitions in the lower court and High court respectively. The allegations of the plaintiff that the defendant corporation visited the site and tried to demolish is false and in correct. The illegal and unauthorized constructions are not covered by the sanctioned plan. Hence, the defendant prayed to dismiss the suit with exemplary costs.

5.Basing the rival contentions of the parties, the trial Court has framed the following issues and additional issues :-

1. Whether the plaintiff is entitled for perpetual injunction as prayed for?

2. To what relief?

:: 10 of 22 :: A.S.No. 2 of 2019

6.During the course of trial before the trial Court, PW1 was examined and Ex.A1 to Ex.A8 were marked on behalf of the plaintiff and whereas, on behalf of the defendant, DW1 was examined and

Ex.B1 to B7 were marked.

7.After considering the oral and documentary evidence on record, the trial Court dismissed the suit. Being aggrieved by the said

Judgment, the Plaintiff preferred the present Appeal by challenging the same on various grounds, which are urged as follows:

1. That the decree under the Appeal is contrary to law and merits of the case.

2. The trial Court dismissed the suit even though the

plaintiff has established her case and discharged

the burden.

3. The defendant failed to discharge the onus as the

burden had shifted on them as per Sec. 101 to 104

of the Evidence Act.

4. The learned judge has failed to see that Sec. 452

Notice was not at all applicable to the plaintiff.

:: 11 of 22 :: A.S.No. 2 of 2019

5. The learned judge has failed to see that the DW1

without issuing Sec. 636 Notice has falsely

contended that the GHMC has the same and he was

asked to produce the same, failed to produce the

same.

6. The learned judge has failed to see that the

Plaintiff was not party to the earlier litigation or

cases filed by the neighbours against the original

owners/vendors of the plaintiff.

7. The learned judge has erred in holding that the

Plaintiff cannot come within the meaning of

bonafide purchaser.

8. The trial Court failed to see that a new scheme

was introduced by the Government in the year

2015.

9. The learned judge has failed to see that the

Plaintiff applied for regularization as per 2015 BRS

scheme on 16.12.2015.

:: 12 of 22 :: A.S.No. 2 of 2019

10. The learned judge ought to have decreed the

suit, as the Court got Sec.685 Notice dispensed

with while filing the suit.

11. The trial Court erred in holding that the

plaintiff is not entitled for perpetual injunction in

view of Sec. 41 (A) of Specific Relief Act against

the legal proceedings issued by the defendant. In

fact, the said objection or defence was not taken

by the defendant.

12. The trial Court did not consider the written arguments and citations filed by the plaintiff.

8. Heard the learned counsel for Appellant.

9. In view of the rival contentions raised by both the parties, the points that arise for consideration are :-

1) Whether the plaintiff is entitled for declaration and injunction as prayed for ?

2) Whether the Judgment and Decree dated 31.10.2018 in O.S.No. 107 of 2014 passed by the I

Junior Civil Judge, City Civil Court, Secunderabad is

in accordance with law and facts of the case?

:: 13 of 22 :: A.S.No. 2 of 2019

10. POINT NO.1 :- Whether the plaintiff is entitled for declaration and injunction as prayed for ?

This being an Appellate Court, the evidence on record can be reappreciated to find out whether any illegality is committed by the

Trial Court in dismissing the suit.

WRITTEN ARGUMENTS FILED BY BOTH THE PARTIES

It is the contention of the learned counsel for plaintiff that plaintiff did not make any construction or done any deviation after purchasing the suit schedule property. Hence, the impugned notice issued to the plaintiff is illegal and not applicable to the plaintiff.

Sec.452 notice will be issued to the persons, who are making constructions or who made constructions. In the notice, it was not mentioned that the plaintiff made construction. The plaintiff is a bonafide purchaser.

11.As seen from the written arguments filed by the plaintiff, it is replica of grounds of appeal. Further, this Court perused the entire written arguments of the plaintiff meticulously. The counsel for the plaintiff mentioned in the written arguments about the decision in the case of Viqarunnissa Begum (Died) and Ors. v. Municipal Corporation of Hyderabad reported in 2009 (2) ALT 652. But, the counsel for plaintiff did not file any citation pertaining to the above said case.

:: 14 of 22 :: A.S.No. 2 of 2019

12.On the other hand, the learned counsel for the defendant argued that all the contentions of the plaintiff are false and that the plaintiff is not entitled for any relief.

13. Now the point that arises for consideration is :-

Whether the plaintiff is entitled for declaration of

impugned Notice dated 14.2.2014 issued under

Sec. 452 of the HMC Act is bad in law, illegal void

and ultravires and to set side the same?

Let us have a glance of Sec. 452 of the HMC Act 1955, which reads as under :-

Section 452(1) in Greater Hyderabad Municipal

Corporation Act, 1955 :- (1) If the Commissioner is satisfied that the construction or re-construction of any building or execution of any work as described in section 433 is commenced or carried out contrary to the provisions of the Act or building rules or bye-laws made thereunder, he shall make a provisional order requiring the person who is constructing or re-constructing such building or executing such work or has constructed or re- :: 15 of 22 :: A.S.No. 2 of 2019 constructed such building or executed such work to demolish such unauthorized construction or re- construction or work within a period specified to bring such construction or re-construction of the building or work in conformity with the provisions of the Act or building rules or Bye-laws made thereunder and may also direct that until the said order is complied with, the concerned person shall refrain from proceeding with, such construction or reconstruction of the building or work.

In view of the above provision of law, it appears that if the erection of any building or execution of any such work as is mentioned Sec.433 is commenced or carried out contrary to the provisions of the Act or Building Laws, the Commissioner shall issue written notice requiring the person, who is constructing or re- constructing such building or executing such work or has constructed or re-constructed such building or executed such work to show cause why such building or work was not removed, altered and pull down. Upon receiving of said notice that person, who attained personally or through an agent to show cause sufficient cause. If such person failed to show sufficient cause to the satisfaction of the :: 16 of 22 :: A.S.No. 2 of 2019

Commissioner, the Commissioner may remove, alter or pull-down building or work.

Sec. 433 of the HMC Act, 1955 reads as under :-

433. Notice to be given to the Commissioner of intention to make additions, etc., to buildings.-

Every person who shall intend -

(a) to make any addition to a building; or

(b)to make any alteration or repairs to a building; not being a frame-building, involving the removal or re- erection of any external or party-wall thereof or of any wall which supports the roof thereof, to an extent exceeding one-half of such wall above the plinth level, such half to be measured in superficial feet; or

(c)to make any alteration or repairs to a framebuilding, involving the removal or re-erection of more than one-half of the posts in any such wall thereof as aforesaid or involving the removal or re-erection of any such wall thereof as aforesaid to an extent exceeding one-half of such wall above the plinth level, such half to be measured in superficial feet; or :: 17 of 22 :: A.S.No. 2 of 2019

(d)to make any alteration in a building involving :-(i) the sub-division of any room in such building so as to convert the same into two or more separate rooms;(ii) the conversion of any passage or space in such building into a room or rooms; or

(e)to remove or reconstruct any portion of a building abutting on a street which stands within the regular line of such street; Shall give to the Commissioner in a form obtained for the purpose under section 435 notice of his intention, specifying the portion of the building in which such work is to be executed, the nature and extent of the intended work, the particular part or parts, if any, of such work which is or are intended to be used for human habitation and the name of the person whom he intends to employ to supervise its execution.

14.It is an admitted fact that defendant had given notice under

Sec. 452 of the HMC Act, 1955 to the plaintiff. The plaintiff admitted in his evidence that the defendant issued notice under Ex.A2 and he gave reply under Ex.A3. Ex.A2 Notice states that Sri Gulabnoo

Yadgar Chenoy obtained building permission for the proposed construction of ground and first floor for residential purpose within :: 18 of 22 :: A.S.No. 2 of 2019 the premises No.8-1-26 to 28, situated at Market Street,

Secunderabad vide permit No.173/81 dated 24.4.2009 in File

No.3277/TPS/C-18/NZ/GHMC/B5/2008 and commenced the construction work without issuing the commencement of work notice under Sec.440 of the HMC Act, 1955 and further, has not complied with the conditions stipulated on the sanctioned plan.

15.While constructing the building, the owners have carried out the construction contrary to the sanctioned plan by excavating the ground for construction of cellar, which is illegal and unauthorized for which, the defendant issued the show cause notice under Sec. 452 of the HMC Act, 1955 and in response to that, they approached the City

Civil Court and obtained injunction order. During the pendency of the suit, they completed the construction work by constructing the building consisting of cellar for parking, ground floor for shops, first floor for prayer hall, second and third floors and pent-house for residential purpose instead of permitted ground and first floor i.e.

illegally constructed cellar, second, third floors and pent-house at 4th floor and also converted the ground floor for commercial purpose.

The said suit in O.S.No.489/2009 and O.S.No.335/2009 were dismissed. Then Smt.K.Lakshmi has approached the City Civil Court, :: 19 of 22 :: A.S.No. 2 of 2019

16.The City Civil Court decreed the suit in favour of K.Lakshmi by directing the defendants not to make any further constructions and the defendant herein was directed to remove the illegal constructions in ‘B’ Schedule property, which are affecting the easementary rights of the said plaintiffs. Smt.K.Lakhsmi and P.Krishna Murthy approached the Hon’ble High Court by filing writ petitions with prayer to take action against illegal constructions made at Premises No.8-1- 26 to 28, situated at Shivaji Nagar, Market Street, Secunderabad.

Therefore, it is deemed that the plaintiff violated the provisions contained in Sec.428 and 433 of the HMC Act, 1955 and also

G.O.Ms.No.86-A, dated 3.3.2006, Building Bue-Laws and Zoning

Regulations, 1981.

17.The plaintiff issued reply notice under Ex.A3 stating that he is the absolute owner having purchased the same under registered Sale

Deed on 11.03.2010. Ex.A4 to Ex.A7 show that the plaintiff is the owner of the suit schedule property having purchasing the same in the year 2010.

18.As seen from the sanctioned plan under Ex.B3, only sanction was pertaining to construction of ground and first floors. Nothing has been elicited in the cross-examination of DW1 to disbelieve his evidence.

:: 20 of 22 :: A.S.No. 2 of 2019

19. BUYER BE AWARE :-

It is an admitted fact that the plaintiff purchased the suit schedule property in the year 2010 under Ex.A1. By the time, plaintiff purchased the property, it was not completed. A prudent man while purchasing the property should see whether the said building is constructed as per the sanctioned plan or not. But, in the present case, the plaintiff is saying that he is a bonafide purchaser and did not see the sanctioned plan. In cross- examination PW1 admitted that he verified the sanctioned plan and purchased the suit property. The sanctioned plan reveals that the suit property is for commercial purpose. He again stated that he does not know that the GHMC granted the sanction for residential purpose, but not for commercial purpose.

20.By the above said evidence of PW1, it appears that he did not thoroughly go through the sanctioned plan of the said property. Firstly, the entire building was constructed against the sanctioned plan illegally. Further more, the suit property should be used as residential purpose only, but not for commercial purpose. PW1 admitted that he gave the suit schedule property for lease for a shop for furniture shop. So, it appears that the plaintiff :: 21 of 22 :: A.S.No. 2 of 2019 is using the suit property not for residential purpose but using the same for commercial purpose. So, whatever contentions made by the defendant are proved by the evidence of PW1 and also as per

Ex.B3.

21.The burden of proof lies on the plaintiff to prove that the notice issued by the defendant is illegal and she is entitled for injunction. But, in the present case, the plaintiff failed to prove his contentions. On the other hand, it is clearly established that not only the suit property, but also entire building under the names of

Jamshed Hall Trust was illegally constructed against the sanctioned plan or contrary to the sanctioned plan illegally and unauthorizedly. Further more, it is established that plaintiff is entitled only to use the suit property for residential purpose but not for commercial purpose. But in the present case, the plaintiff is using the suit property for commercial purpose and he did not produce any evidence to show that he is entitled to use the suit property for commercial purpose. Consequently, the plaintiff is not entitled for any declaration or injunction as prayed for. This Court holds the Point No.1 against the plaintiff.

:: 22 of 22 :: A.S.No. 2 of 2019

22. POINT NO.2 :- Whether the Judgment and Decree dated

31.10.2018 in O.S.No.107 of 2014 passed by the I Junior Civil

Judge, City Civil Court, Secunderabad is in accordance with

law and facts of the case?

In view of the discussion made supra and also on perusal of the Judgment of the trial Court, it appears that the learned I Junior

Civil Judge, City Civil Court, Secunderabad passed the Judgment

dated 31.10.2018 in O.S.No.107 of 2014 in accordance with law and

facts of the case and it is to be confirmed. This Court holds the

Point No.2 accordingly.

23.In the result, the Appeal is hereby dismissed.

Typed to my dictation, corrected and pronounced by me in the open Court on this the 16th day of April, 2024.

I ADDITIONAL CHIEF JUDGE,

CITY CIVIL COURT, SECUNDERABAD.

APPENDIX OF EVIDENCE - NIL

I ADDITIONAL CHIEF JUDGE,

CITY CIVIL COURT, SECUNDERABAD.

IN THE COURT OF THE I ADDITIONAL CHIEF JUDGE,

CITY CIVIL COURT, SECUNDERABAD.

Present : SRI JANGA JEEVAN KUMAR

I Additional Chief Judge

DATED THIS THE 16th DAY OF APRIL, 2024

A.S. NO. 1 OF 2019

Between:

1. Smt. P. Manjula W/o P. Vaman Rao (died per Lrs)

2. P.Vaman Rao S/o P.Kannaiah

3. P.Rama Krishna S/o P.Vaman Rao -- Appellants

AND

The Deputy Commissioner, Greater Hyderabad Municipal Corporation --Respondent

On Appeal against the Judgment and Decree dated

31.10.2018 in O.S.No.106 of 2014 passed by the learned I

Junior Civil Judge, City Civil Court, Secunderabad.

O.S. NO. 106 OF 2014

Between :-

Smt. P. Manjula W/o P. Vaman Rao -- Plaintiff

AND

The Deputy Commissioner, Greater Hyderabad Municipal Corporation --Defendants

This Appeal is coming before me for final hearing and disposal in the presence of Sri Wasim Ahmed Khan, Advocate for the

Appellants and of Sri R.Sudhakar, Advocate for Respondent and the :: 2 of 22 :: A.S.No. 1 of 2019 matter having been heard and stood over for consideration till this day, this Court delivered the following :-

J U D G M E N T

1. Initially, this Appeal is filed by the Appellant/Smt.P.Manjula challenging Judgment and Decree dated 31.10.2018 in O.S.No. 106 of 2014 passed by the learned I Junior Civil Judge, City Civil Court,

Secunderabad, dismissing the suit. During pendency of the appeal, the sole Appellant/Smt.P.Manjula died and her LRs are brought on record as per Orders dated 4.8.2022 in I.A.No.428 of 2021.

2.The plaintiff filed the suit in O.S.No.106 of 2014 on the file of I

Junior Civil Judge, City Civil Court, Secunderabad for declaration of impugned Notice dated 14.2.2014 issued under Sec. 452 of the HMC

Act is bad in law, illegal void and ultravires and to set side the same and perpetual injunction against the defendant restraining it from interfering with the plaintiff’s possession or from demolishing the suit schedule property.

3. THE BRIEF AVERMENTS IN THE PLAINT ARE AS

FOLLOWS :-

The plaintiff is the absolute owner and possessor of property bearing premises No.8-1-26 to 28, Shop No.1, situated at

Shivajinagar, Market Street, Secunderabad, having purchased the :: 3 of 22 :: A.S.No. 1 of 2019 same under registered Sale Deed dated 28.09.2010. After purchasing the suit schedule property, she is exercising all the rights of ownership and possession by letting out the same to a tenant by name G.Kailasapathy. The GHMC has already assessed the schedule property in the municipal records in the name of the

Plaintiff and they have given the number as 8-1-26 to 28, Shop

No.1 and collecting Commercial property tax from the Plaintiff, after duly assessing them in their property assessment register.

While so, the officials of the Defendant came to the suit property on 15.02.2014 and the I Junior Civil Judge, City Civil Court,

Secunderabad has directed the GHMC to demolish II and III Floor of the above building in a suit vide O.S.No.779/2010 filed by

K.Lakshmi, a neighbour against the owners of the above property.

In said case, the owners filed A.S.No. 16/2014 on the file of the I

Additional Chief Judge, City Civil Court, Secunderabad and

obtained interim suspension of the lower court Judgment and

Decree date 4.12.2013 in I.Α.Νο.318/2014. Thereafter, the

Defendant has issued a notice dated 14.02.2014 under Section 452 of GHMC Act interalia contending that originally the owner has obtained permission for residential purpose and converted the same into commercial shop and the Plaintiff was asked to submit reply within 7 days. Hence, the plaintiff has submitted a detailed :: 4 of 22 :: A.S.No. 1 of 2019 reply dated 19.02.2014 stating that the notice is bad in law and contrary to the provisions of GHMC Act and that she is not aware that the owners of the building have commenced the work without issuing notice under Section 440 of the HMC Act, after obtaining the Sanction or they have contravened the terms and conditions of the Sanction and committed deviations and she is not aware about the issuance of Sec.452 notice to the owners on 19.06.2009, as the owners never informed to her. The plaintiff is not aware that the owners have filed O.S.No.498/2009, on the file of the City Civil

Court or about obtaining injunction order, as she was not party to it. Similarly, the Plaintiff is also not aware about the dismissal of

O.S.No.498 and 335 of 2009 filed by the owners, as he was not

party to them. He is not aware about filling of W.P.No.2691/2011 by Smt.K.Lakshmi or about filing of W.P.No.28258/2012 by

P.Krishnamurthy, as the Plaintiff was not party to it. The plaintiff is also paying the property taxes regularly and at no point of time, the plaintiff was not informed by the GHMC that the schedule property was originally meant for residential use, but now being used for commercial purpose. Now after so many years, the

Defendant has now for the first time issued the impugned notice

dated 14.2.2014, informing the Plaintiff that residential portion is

converted into commercial one by the Builder. The impugned :: 5 of 22 :: A.S.No. 1 of 2019 notice issued by the Defendant/GHMC is not applicable to the

Plaintiff, as she is not erecting or erected the suit property/building. The suit property is not creating any nuisance or problem to the public nor its existence is posing any threat to the common public. The Plaintiff has already let-out the above mulgi to a tenant in the year 2010 itself and ever since the tenant is in possession of the same The impugned notice is completely illegal, arbitrary and unconstitutional and also bad in law and contrary to the provisions of GHMC Act and therefore the same has to be declared as void, illegal and not binding on the Plaintiff. The officials of the Defendant have come to the suit property on 22.02.2014 and threatened the Plaintiff and others with dire consequences that they will come and demolish the suit property.

However, on the resistance of the Plaintiff and other occupiers of the adjacent mulgies, the officials of the Defendant went away, leaving threats that they will come again with more force and demolish the suit property. Now, the plaintiff is apprehending that the Defendant/GHMC may any time come and demolish the suit property, in which case, the Plaintiff shall suffer heavy and irreparable loss. Hence the Plaintiff is constrained to file the above suit for Declaration and Consequential Injunction restraining the :: 6 of 22 :: A.S.No. 1 of 2019

Defendant/GHMC from interfering with the Plaintiff's peaceful possession or from demolishing the suit property

4. DEFENDANT FILED WRITTEN STATEMENT :-

The defendant denied the averments mentioned in the plaint and submitted that the suit is not maintainable either in law or facts. The Plaintiff filed the present suit against the defendant without issuing notice under Sec.685 of HMC Act, which is mandatory. It is submitted by the defendant that Smt. K.Lakshmi has filed a suit in O.S.No 779 of 2010 against GHMC and Jamshed

Hall Trust and the same is decreed on 04.12.2013 with the

Following Judgment "In the result, suit is decreed without costs by granted perpetual Injunction restraining defendants 1 to 3 from carrying out any further construction activity in the schedule B property. Further, defendants are directed to remove the illegal constructions in the ‘B’ schedule property, which are affecting the easementary rights of the plaintiffs". As per the above order, the officials of the Defendant Corporation has issued final notice under

Sec. 636 of HMC Act, 1955 upon Jamshed Hall Trust and demolished the deviations and illegal constructions, which are in possession of Jamshed Hall trust. For the other owners and the

Plaintiffs, the officials of the Defendant corporation have issued the :: 7 of 22 :: A.S.No. 1 of 2019 show cause notice under Sec.452 of the HMC Act, 1955 duly giving (7) days time on 14.02.2014. The plaintiff and other owners submitted their explanations on 20.02.2014. Aggrieved by the action initiated by the defendant corporation, Jamshed Hall Trust has filed appeal suit in A.S.No.16 of 2014 and the Plaintiff has filed the present suit. It is the duty of the Plaintiff to verify the sanctioned plan before purchasing any property and she cannot submit that she is not aware of anything. It is a fact that the building permission has been granted to Jamshed Hall Trust for the proposed construction of ground and first floor for residential purpose vide permit No.173/81 dated 29.04.2009 in the File

No.3277/TPS/C-18/NZ/ GHMC/B5/2008 within premises No.8-1-26 to 28 situated at Market street, Secunderabad. While constructing the building Jamshed Hall Trust resorted to an illegal and unauthorized digging of ground and laid the slab for cellar floor, which is not covered by the sanctioned plan. Hence, the officials of the defendant corporation have issued the show cause notice under Sec.452 of the HMC Act, 1955, dated 18.06.2009 upon

Jamshed Hall Trust. The Jamshed Hall Trust without submitting their explanation have suo-motto approached the Hon'ble City Civil

Court in I.A.No.635/2009 in O.S.No 498/2009 to safeguard their illegal and unauthorized construction of cellar, which are not :: 8 of 22 :: A.S.No. 1 of 2019 covered by the sanctioned plan. Under the shelter of the court orders, Jamshed Hall Trust has constructed the building consisting of cellar, ground + (3) upper floors and partly fourth floor and converted the residential building into commercial purpose. It is fault of the Plaintiff since she has purchased the property without

Verifying the sanctioned plan. It is submitted by the defendant that Smt. K.Lakshmi has also filed Writ petition No. 2691 of 2011

before the Hon'ble High Court against GHMC & Jamshed Hall Trust

with a prayer to direct the GHMC to take steps for the removal of illegal construction made by Jamshed Hall Trust in the premises bearing No. 8-1-26(old No. 6828), situated at Shivaji Nagar,

Market street, Secunderabad. Further, another neighbour Sri

P.Krishna Murthy has also filed W.P.No 28258 of 2012 against

GHMC & Jamshed Hall Trust with a prayer to direct GHMC to remove all the illegal constructions made by the Jamshed Hall

Trust at the Premises bearing No. 8-1-26 to 28 (old No. 6828), situated at Shivaji Nagar, Market street, Secunderabad. In terms of judgment and decree in O.S.No.779 of 2010, the officials of the defendant corporation have issued the show cause notice under

Sec.452 of the HMC Act, 1955 on 14.02.2014. The plaintiff herself is requesting to regularize the deviations, which clearly indicates that the plaintiff is aware of the deviations and illegal construction.

:: 9 of 22 :: A.S.No. 1 of 2019

Moreover, at present, there is no Building Regularization Scheme.

The Building Penalisation Scheme was introduced in the year 2008 for regularization of the constructions made before 15.12.2007.

Hence, the construction made by the plaintiff is not applicable under Building Penalization Scheme. Moreover, the Building

Penalisation scheme is closed on 31-05-2013. Further, the Building cannot be regularized under Section 455-A of the HMC Act, 1955 since the building is constructed in violation of required mandatory setbacks. The vehicles coming to the shops are parking on the road margin and causing inconvenience to the general public as well as the neighbours, who have filed the complaint petitions and also suits & writ petitions in the lower court and High court respectively. The allegations of the plaintiff that the defendant corporation visited the site and tried to demolish is false and in correct. The illegal and unauthorized constructions are not covered by the sanctioned plan. Hence, the defendant prayed to dismiss the suit with exemplary costs.

5.Basing the rival contentions of the parties, the trial Court has framed the following issues and additional issues :-

1. Whether the plaintiff is entitled for perpetual injunction as prayed for?

2. To what relief?

:: 10 of 22 :: A.S.No. 1 of 2019

6.During the course of trial before the trial Court, PW1 was examined and Ex.A1 to A12 were marked on behalf of the plaintiff and whereas, on behalf of the defendant, DW1 was examined and

Ex.B1 to B7 were marked.

7.After considering the oral and documentary evidence on record, the trial Court dismissed the suit. Being aggrieved by the said

Judgment, the Plaintiff preferred the present Appeal by challenging the same on various grounds, which are urged as follows:

1. That the decree under the Appeal is contrary to law and merits of the case.

2. The trial Court dismissed the suit even though the

plaintiff has established her case and discharged

the burden.

3. The defendant failed to discharge the onus as the

burden had shifted on them as per Sec. 101 to 104

of the Evidence Act.

4. The learned judge has failed to see that Sec. 452

Notice was not at all applicable to the plaintiff.

:: 11 of 22 :: A.S.No. 1 of 2019

5. The learned judge has failed to see that the DW1

without issuing Sec. 636 Notice has falsely

contended that the GHMC has the same and he was

asked to produce the same, failed to produce the

same.

6. The learned judge has failed to see that the

Plaintiff was not party to the earlier litigation or

cases filed by the neighbours against the original

owners/vendors of the plaintiff.

7. The learned judge has erred in holding that the

Plaintiff cannot come within the meaning of

bonafide purchaser.

8. The trial Court failed to see that a new scheme

was introduced by the Government in the year

2015.

9. The learned judge has failed to see that the

Plaintiff applied for regularization as per 2015 BRS

scheme on 16.12.2015.

:: 12 of 22 :: A.S.No. 1 of 2019

10. The learned judge ought to have decreed the

suit, as the Court got Sec.685 Notice dispensed

with while filing the suit.

11. The trial Court erred in holding that the

plaintiff is not entitled for perpetual injunction in

view of Sec. 41 (A) of Specific Relief Act against

the legal proceedings issued by the defendant. In

fact, the said objection or defence was not taken

by the defendant.

12. The trial Court did not consider the written arguments and citations filed by the plaintiff.

8. Heard the learned counsel for Appellant.

9. In view of the rival contentions raised by both the parties, the points that arise for consideration are :-

1) Whether the plaintiff is entitled for declaration and injunction as prayed for ?

2) Whether the Judgment and Decree dated 31.10.2018 in O.S.No. 106 of 2014 passed by the I

Junior Civil Judge, City Civil Court, Secunderabad is

in accordance with law and facts of the case?

:: 13 of 22 :: A.S.No. 1 of 2019

10. POINT NO.1 :- Whether the plaintiff is entitled for declaration and injunction as prayed for ?

This being an Appellate Court, the evidence on record can be reappreciated to find out whether any illegality is committed by the

Trial Court in dismissing the suit.

WRITTEN ARGUMENTS FILED BY BOTH THE PARTIES

It is the contention of the learned counsel for plaintiff that plaintiff did not make any construction or done any deviation after purchasing the suit schedule property. Hence, the impugned notice issued to the plaintiff is illegal and not applicable to the plaintiff.

Sec.452 notice will be issued to the persons, who are making constructions or who made constructions. In the notice, it was not mentioned that the plaintiff made construction. The plaintiff is a bonafide purchaser.

11.As seen from the written arguments filed by the plaintiff, it is replica of grounds of appeal. Further, this Court perused the entire written arguments of the plaintiff meticulously. The counsel for the plaintiff mentioned in the written arguments about the decision in the case of Viqarunnissa Begum (Died) and Ors. v. Municipal Corporation of Hyderabad reported in 2009 (2) ALT 652. But, the counsel for plaintiff did not file any citation pertaining to the above said case.

:: 14 of 22 :: A.S.No. 1 of 2019

12.On the other hand, the learned counsel for the defendant argued that all the contentions of the plaintiff are false and that the plaintiff is not entitled for any relief.

13. Now the point that arises for consideration is :-

Whether the plaintiff is entitled for declaration of

impugned Notice dated 14.2.2014 issued under

Sec. 452 of the HMC Act is bad in law, illegal void

and ultravires and to set side the same?

Let us have a glance of Sec. 452 of the HMC Act 1955, which reads as under :-

Section 452(1) in Greater Hyderabad Municipal

Corporation Act, 1955 :- (1) If the Commissioner is satisfied that the construction or re-construction of any building or execution of any work as described in section 433 is commenced or carried out contrary to the provisions of the Act or building rules or bye-laws made thereunder, he shall make a provisional order requiring the person who is constructing or re-constructing such building or executing such work or has constructed or re- :: 15 of 22 :: A.S.No. 1 of 2019 constructed such building or executed such work to demolish such unauthorized construction or re- construction or work within a period specified to bring such construction or re-construction of the building or work in conformity with the provisions of the Act or building rules or Bye-laws made thereunder and may also direct that until the said order is complied with, the concerned person shall refrain from proceeding with, such construction or reconstruction of the building or work.

In view of the above provision of law, it appears that if the erection of any building or execution of any such work as is mentioned Sec.433 is commenced or carried out contrary to the provisions of the Act or Building Laws, the Commissioner shall issue written notice requiring the person, who is constructing or re- constructing such building or executing such work or has constructed or re-constructed such building or executed such work to show cause why such building or work was not removed, altered and pull down. Upon receiving of said notice that person, who attained personally or through an agent to show cause sufficient cause. If such person failed to show sufficient cause to the satisfaction of the :: 16 of 22 :: A.S.No. 1 of 2019

Commissioner, the Commissioner may remove, alter or pull-down building or work.

Sec. 433 of the HMC Act, 1955 reads as under :-

433. Notice to be given to the Commissioner of intention to make additions, etc., to buildings.-

Every person who shall intend -

(a) to make any addition to a building; or

(b)to make any alteration or repairs to a building; not being a frame-building, involving the removal or re- erection of any external or party-wall thereof or of any wall which supports the roof thereof, to an extent exceeding one-half of such wall above the plinth level, such half to be measured in superficial feet; or

(c)to make any alteration or repairs to a framebuilding, involving the removal or re-erection of more than one-half of the posts in any such wall thereof as aforesaid or involving the removal or re-erection of any such wall thereof as aforesaid to an extent exceeding one-half of such wall above the plinth level, such half to be measured in superficial feet; or :: 17 of 22 :: A.S.No. 1 of 2019

(d)to make any alteration in a building involving :-(i) the sub-division of any room in such building so as to convert the same into two or more separate rooms;(ii) the conversion of any passage or space in such building into a room or rooms; or

(e)to remove or reconstruct any portion of a building abutting on a street which stands within the regular line of such street; Shall give to the Commissioner in a form obtained for the purpose under section 435 notice of his intention, specifying the portion of the building in which such work is to be executed, the nature and extent of the intended work, the particular part or parts, if any, of such work which is or are intended to be used for human habitation and the name of the person whom he intends to employ to supervise its execution.

14.It is an admitted fact that defendant had given notice under

Sec. 452 of the HMC Act, 1955 to the plaintiff. The plaintiff admitted in her evidence that the defendant issued notice under Ex.A2 and she gave reply under Ex.A3. Ex.A2 Notice states that Sri Gulabnoo

Yadgar Chenoy obtained building permission for the proposed construction of ground and first floor for residential purpose within :: 18 of 22 :: A.S.No. 1 of 2019 the premises No.8-1-26 to 28, situated at Market Street,

Secunderabad vide permit No.173/81 dated 24.4.2009 in File

No.3277/TPS/C-18/NZ/GHMC/B5/2008 and commenced the construction work without issuing the commencement of work notice under Sec.440 of the HMC Act, 1955 and further, has not complied with the conditions stipulated on the sanctioned plan.

15.While constructing the building, the owners have carried out the construction contrary to the sanctioned plan by excavating the ground for construction of cellar, which is illegal and unauthorized for which, the defendant issued the show cause notice under Sec. 452 of the HMC Act, 1955 and in response to that, they approached the City

Civil Court and obtained injunction order. During the pendency of the suit, they completed the construction work by constructing the building consisting of cellar for parking, ground floor for shops, first floor for prayer hall, second and third floors and pent-house for residential purpose instead of permitted ground and first floor i.e.

illegally constructed cellar, second, third floors and pent-house at 4th floor and also converted the ground floor for commercial purpose.

The said suit in O.S.No.489/2009 and O.S.No.335/2009 were dismissed. Then Smt.K.Lakshmi has approached the City Civil Court, :: 19 of 22 :: A.S.No. 1 of 2019

16.The City Civil Court decreed the suit in favour of K.Lakshmi by directing the defendants not to make any further constructions and the defendant herein was directed to remove the illegal constructions in ‘B’ Schedule property, which are affecting the easementary rights of the said plaintiffs. Smt.K.Lakhsmi and P.Krishna Murthy approached the Hon’ble High Court by filing writ petitions with prayer to take action against illegal constructions made at Premises No.8-1- 26 to 28, situated at Shivaji Nagar, Market Street, Secunderabad.

Therefore, it is deemed that the plaintiff violated the provisions contained in Sec.428 and 433 of the HMC Act, 1955 and also

G.O.Ms.No.86-A, dated 3.3.2006, Building Bue-Laws and Zoning

Regulations, 1981.

17.The plaintiff issued reply notice under Ex.A3 stating that she is the absolute owner having purchased the same under registered Sale

Deed on 28.9.2010. Ex.A4 to Ex.A10 and Ex.A12 show that the plaintiff is the owner of the suit schedule property having purchasing the same in the year 2010.

18.As seen from the sanctioned plan under Ex.B3, only sanction was pertaining to construction of ground and first floors. Nothing has been elicited in the cross-examination of DW1 to disbelieve his evidence.

:: 20 of 22 :: A.S.No. 1 of 2019

19. BUYER BE AWARE :-

It is an admitted fact that the plaintiff purchased the suit schedule property in the year 2010 under Ex.A1. By the time, plaintiff purchased the property, it was not completed. A prudent man while purchasing the property should see whether the said building is constructed as per the sanctioned plan or not. But, in the present case, the plaintiff is saying that she is a bonafide purchaser and did not see the sanctioned plan. In cross- examination PW1 admitted that she verified the sanctioned plan and purchased the suit property. The sanctioned plan reveals that the suit property is for commercial purpose. She again stated that she does not know that the GHMC granted the sanction for residential purpose, but not for commercial purpose.

20.By the above said evidence of PW1, it appears that she did not thoroughly go through the sanctioned plan of the said property. Firstly, the entire building was constructed against the sanctioned plan illegally. Further more, the suit property should be used as residential purpose only, but not for commercial purpose. PW1 admitted that she gave the suit schedule property for lease for a shop for selling coconuts. So, it appears that the :: 21 of 22 :: A.S.No. 1 of 2019 plaintiff is using the suit property not for residential purpose but using the same for commercial purpose. So, whatever contentions made by the defendant are proved by the evidence of PW1 and also as per Ex.B3.

21.The burden of proof lies on the plaintiff to prove that the notice issued by the defendant is illegal and she is entitled for injunction. But, in the present case, the plaintiff failed to prove her contentions. On the other hand, it is clearly established that not only the suit property, but also entire building under the names of Jamshed Hall Trust was illegally constructed against the sanctioned plan or contrary to the sanctioned plan illegally and unauthorizedly. Further more, it is established that plaintiff is entitled only to use the suit property for residential purpose but not for commercial purpose. But in the present case, the plaintiff is using the suit property for commercial purpose and she did not produce any evidence to show that she is entitled to use the suit property for commercial purpose. Consequently, the plaintiff is not entitled for any declaration or injunction as prayed for. This Court holds the Point No.1 against the plaintiff.

:: 22 of 22 :: A.S.No. 1 of 2019

22. POINT NO.2 :- Whether the Judgment and Decree dated

31.10.2018 in O.S.No. 106 of 2014 passed by the I Junior Civil

Judge, City Civil Court, Secunderabad is in accordance with

law and facts of the case?

In view of the discussion made supra and also on perusal of the Judgment of the trial Court, it appears that the learned I Junior

Civil Judge, City Civil Court, Secunderabad passed the Judgment

dated 31.10.2018 in O.S.No.106 of 2014 in accordance with law and

facts of the case and it is to be confirmed. This Court holds the

Point No.2 accordingly.

23.In the result, the Appeal is hereby dismissed.

Typed to my dictation, corrected and pronounced by me in the open Court on this the 16th day of April, 2024.

I ADDITIONAL CHIEF JUDGE,

CITY CIVIL COURT, SECUNDERABAD.

APPENDIX OF EVIDENCE - NIL

I ADDITIONAL CHIEF JUDGE,

CITY CIVIL COURT, SECUNDERABAD.

IN THE COURT OF THE I ADDITIONAL CHIEF JUDGE,

CITY CIVIL COURT, SECUNDERABAD.

Present : SRI JANGA JEEVAN KUMAR

I Additional Chief Judge

DATED THIS THE 16th DAY OF APRIL, 2024

A.S. NO. 4 OF 2019

Between:

1. Mrs. Aban H Patel W/o Hosi E Patel

2. Miss Sunnu E. Patel D/o late Erachshaw H Patel -- Appellants AND

The Deputy Commissioner, Greater Hyderabad Municipal Corporation --Respondent

On Appeal against the Judgment and Decree dated

31.10.2018 in O.S.No.125 of 2014 passed by the learned I

Junior Civil Judge, City Civil Court, Secunderabad.

O.S. NO. 125 OF 2014

Between :-

1. Mrs. Aban H Patel W/o Hosi E Patel

2. Miss Sunnu E. Patel D/o late Erachshaw H Patel -- Plaintiffs

AND

The Deputy Commissioner, Greater Hyderabad Municipal Corporation --Defendants

This Appeal is coming before me for final hearing and disposal in the presence of Sri Wasim Ahmed Khan, Advocate for the :: 2 of 22 :: A.S.No. 4 of 2019

Appellants and of Sri R.Sudhakar, Advocate for Respondent and the matter having been heard and stood over for consideration till this day, this Court delivered the following :-

J U D G M E N T

1. This Appeal is filed by the Appellants challenging Judgment and

Decree dated 31.10.2018 in O.S.No. 125 of 2014 passed by the learned I Junior Civil Judge, City Civil Court, Secunderabad, dismissing the suit.

2.The plaintiff filed the suit in O.S.No.125 of 2014 on the file of I

Junior Civil Judge, City Civil Court, Secunderabad for declaration of impugned Notice dated 14.2.2014 issued under Sec. 452 of the HMC

Act is bad in law, illegal void and ultravires and to set side the same and perpetual injunction against the defendant restraining it from interfering with the plaintiff’s possession or from demolishing the suit schedule property.

3. THE BRIEF AVERMENTS IN THE PLAINT ARE AS

FOLLOWS :-

The plaintiff is the absolute owner and possessor of property bearing premises No.8-1-26 to 28/Flat No.S-2, Second Floor, situated at Shivajinagar, Market Street, Secunderabad, having purchased the same under registered Sale Deed dated :: 3 of 22 :: A.S.No. 4 of 2019 06.08.2010. After purchasing the suit schedule property, she is exercising all the rights of ownership and possession by residing in it with her family. The GHMC has already assessed the schedule property in the municipal records in the name of the Plaintiff and they have given the number as 8-1-26 to 28/Flat No.S-2 and collecting property tax from the Plaintiff, after duly assessing them in their property assessment register. While so, the officials of the

Defendant came to the suit property on 15.02.2014 and the I

Junior Civil Judge, City Civil Court, Secunderabad has directed the

GHMC to demolish II and III Floor of the above building in a suit vide O.S.No.779/2010 filed by K.Lakshmi, a neighbour against the owners of the above property. In said case, the owners filed

A.S.No. 16/2014 on the file of the I Additional Chief Judge, City

Civil Court, Secunderabad and obtained interim suspension of the lower court Judgment and Decree date 4.12.2013 in

I.Α.Νο.318/2014. Thereafter, the Defendant has issued a notice

dated 14.02.2014 under Section 452 of GHMC Act interalia

contending that originally the owner has obtained permission for groudn and first floor, but constructed additional floors and the

Plaintiffs were asked to submit reply within 7 days. Hence, the plaintiffs have submitted a detailed reply dated 20.02.2014 stating that the notice is bad in law and contrary to the provisions of :: 4 of 22 :: A.S.No. 4 of 2019

GHMC Act and that they were not aware that the owners of the building have commenced the work without issuing notice under

Section 440 of the HMC Act, after obtaining the Sanction or they have contravened the terms and conditions of the Sanction and committed deviations and they were not aware about the issuance of Sec.452 notice to the owners on 19.06.2009, as the owners never informed to them. The plaintiffs were not aware that the owners have filed O.S.No.498/2009, on the file of the City Civil

Court or about obtaining injunction order, as they were not party to it. Similarly, the Plaintiffs are also not aware about the dismissal of O.S.No.498 and O.S.No.335 of 2009 filed by the owners, as they were not party to them. The plaintiffs are not aware about filling of W.P.No.2691/2011 by Smt.K.Lakshmi or about filing of

W.P.No.28258/2012 by P.Krishnamurthy, as the Plaintiffs were not party to it. The plaintiffs purchased the suit property absolutely in good fair under registered Sale Deed and ever since, thye were enjoying the suit property by peacefully residing in it and paying the property taxes regularly and at no point of time, the plaintiffs were not informed by the GHMC that their property was illegally constructed. Now after so many years, the Defendant has now for the first time issued the impugned notice under Sec. 452, informing that the Flat is illegally constructed by the Builder. The :: 5 of 22 :: A.S.No. 4 of 2019 impugned notice issued by the Defendant/GHMC is not applicable to the Plaintiffs, as they are not erecting or erected the suit property/building. The suit property is not creating any nuisance or problem to the public nor its existence is posing any threat to the common public. The impugned notice is completely illegal, arbitrary and unconstitutional and also bad in law and contrary to the provisions of GHMC Act and therefore, the same has to be declared as void, illegal and not binding on the Plaintiffs. The officials of the Defendant have come to the suit property on 01.03.2014 and 06.03.2014 and threatened the Plaintiffs and others with dire consequences that they will come and demolish the suit property. However, on the resistance of the Plaintiffs and other occupiers of the adjacent portions, the officials of the

Defendant went away, leaving threats that they will come again with more force and demolish the suit property. Now, the plaintiff is apprehending that the Defendant/GHMC may any time come and demolish the suit property, in which case, the Plaintiffs shall suffer heavy and irreparable loss. Hence, the Plaintiffs are constrained to file the above suit for Declaration and consequential Injunction restraining the Defendant/GHMC from interfering with the

Plaintiff's peaceful possession or from demolishing the suit property.

:: 6 of 22 :: A.S.No. 4 of 2019

4. DEFENDANT FILED WRITTEN STATEMENT :-

The defendant denied the averments mentioned in the plaint and submitted that the suit is not maintainable either in law or facts. The Plaintiffs filed the present suit against the defendant without issuing notice under Sec.685 of HMC Act, which is mandatory. It is submitted by the defendant that Smt. K.Lakshmi has filed a suit in O.S.No 779 of 2010 against GHMC and Jamshed

Hall Trust and the same is decreed on 04.12.2013 with the

Following Judgment "In the result, suit is decreed without costs by granted perpetual Injunction restraining defendants 1 to 3 from carrying out any further construction activity in the schedule B property. Further, defendants are directed to remove the illegal constructions in the ‘B’ schedule property, which are affecting the easementary rights of the plaintiffs". As per the above order, the officials of the Defendant Corporation has issued final notice under

Sec. 636 of HMC Act, 1955 upon Jamshed Hall Trust and demolished the deviations and illegal constructions, which are in possession of Jamshed Hall trust. For the other owners and the

Plaintiffs, the officials of the Defendant corporation have issued the show cause notice under Sec.452 of the HMC Act, 1955 duly giving (7) days time on 14.02.2014. The plaintiff and other owners :: 7 of 22 :: A.S.No. 4 of 2019 submitted their explanations on 19.02.2014. Aggrieved by the action initiated by the defendant corporation, Jamshed Hall Trust has filed appeal suit in A.S.No.16 of 2014 and the Plaintiff has filed the present suit. It is the duty of the Plaintiffd to verify the sanctioned plan before purchasing any property and they cannot submit that they are not aware of anything. It is a fact that the building permission has been granted to Jamshed Hall Trust for the proposed construction of ground and first floor for residential purpose vide permit No.173/81 dated 29.04.2009 in the File

No.3277/TPS/C-18/NZ/ GHMC/B5/2008 within premises No.8-1-26 to 28 situated at Market street, Secunderabad. While constructing the building, Jamshed Hall Trust resorted to an illegal and unauthorized digging of ground and laid the slab for cellar floor, which is not covered by the sanctioned plan. Hence, the officials of the defendant corporation have issued the show cause notice under Sec.452 of the HMC Act, 1955, dated 18.06.2009 upon

Jamshed Hall Trust. The Jamshed Hall Trust without submitting their explanation have suo-motto approached the Hon'ble City Civil

Court in I.A.No.635/2009 in O.S.No 498/2009 to safeguard their illegal and unauthorized construction of cellar, which are not covered by the sanctioned plan. Under the shelter of the court orders, Jamshed Hall Trust has constructed the building consisting :: 8 of 22 :: A.S.No. 4 of 2019 of cellar, ground + (3) upper floors and partly fourth floor and converted the residential building into commercial purpose. It is fault of the Plaintiff since she has purchased the property without

Verifying the sanctioned plan. It is submitted by the defendant that Smt. K.Lakshmi has also filed Writ petition No. 2691 of 2011

before the Hon'ble High Court against GHMC & Jamshed Hall Trust

with a prayer to direct the GHMC to take steps for the removal of illegal construction made by Jamshed Hall Trust in the premises bearing No. 8-1-26(old No. 6828), situated at Shivaji Nagar,

Market street, Secunderabad. Further, another neighbour Sri

P.Krishna Murthy has also filed W.P.No 28258 of 2012 against

GHMC & Jamshed Hall Trust with a prayer to direct GHMC to remove all the illegal constructions made by the Jamshed Hall

Trust at the Premises bearing No. 8-1-26 to 28 (old No. 6828), situated at Shivaji Nagar, Market street, Secunderabad. In terms of judgment and decree in O.S.No.779 of 2010, the officials of the defendant corporation have issued the show cause notice under

Sec.452 of the HMC Act, 1955 on 14.02.2014. The plaintiffs themselves are requesting to regularize the deviations, which clearly indicates that the plaintiffs were aware of the deviations and illegal construction. Moreover, at present, there is no Building

Regularization Scheme. The Building Penalisation Scheme was :: 9 of 22 :: A.S.No. 4 of 2019 introduced in the year 2008 for regularization of the constructions made before 15.12.2007. Hence, the construction made by the plaintiff is not applicable under Building Penalization Scheme.

Moreover, the Building Penalisation scheme is closed on 31.05.2013. Further, the Building cannot be regularized under

Section 455-A of the HMC Act, 1955 since the building is constructed in violation of required mandatory setbacks. The vehicles coming to the shops are parking on the road margin and causing inconvenience to the general public as well as the neighbours, who have filed the complaint petitions and also suits & writ petitions in the lower court and High court respectively. The allegations of the plaintiff that the defendant corporation visited the site and tried to demolish is false and in correct. The illegal and unauthorized constructions are not covered by the sanctioned plan. Hence, the defendant prayed to dismiss the suit with exemplary costs.

5.Basing the rival contentions of the parties, the trial Court has framed the following issues and additional issues :-

1. Whether the plaintiff is entitled for perpetual injunction as prayed for?

2. To what relief?

:: 10 of 22 :: A.S.No. 4 of 2019

6.During the course of trial before the trial Court, PW1 was examined and Ex.A1 to Ex.A14 were marked on behalf of the plaintiffs and whereas, on behalf of the defendant, DW1 was examined and Ex.B1 to B5 were marked.

7.After considering the oral and documentary evidence on record, the trial Court dismissed the suit. Being aggrieved by the said

Judgment, the Plaintiff preferred the present Appeal by challenging the same on various grounds, which are urged as follows:

1. That the decree under the Appeal is contrary to law and merits of the case.

2. The trial Court dismissed the suit even though the

plaintiff has established her case and discharged

the burden.

3. The defendant failed to discharge the onus as the

burden had shifted on them as per Sec. 101 to 104

of the Evidence Act.

4. The learned judge has failed to see that Sec. 452

Notice was not at all applicable to the plaintiff.

5. The learned judge has failed to see that the DW1

without issuing Sec. 636 Notice has falsely

:: 11 of 22 :: A.S.No. 4 of 2019

contended that the GHMC has the same and he was

asked to produce the same, failed to produce the

same.

6. The learned judge has failed to see that the

Plaintiff was not party to the earlier litigation or

cases filed by the neighbours against the original

owners/vendors of the plaintiff.

7. The learned judge has erred in holding that the

Plaintiff cannot come within the meaning of

bonafide purchaser.

8. The trial Court failed to see that a new scheme

was introduced by the Government in the year

2015.

9. The learned judge has failed to see that the

Plaintiff applied for regularization as per 2015 BRS

scheme on 16.12.2015.

10. The learned judge ought to have decreed the

suit, as the Court got Sec.685 Notice dispensed

with while filing the suit.

:: 12 of 22 :: A.S.No. 4 of 2019

11. The trial Court erred in holding that the

plaintiff is not entitled for perpetual injunction in

view of Sec. 41 (A) of Specific Relief Act against

the legal proceedings issued by the defendant. In

fact, the said objection or defence was not taken

by the defendant.

12. The trial Court did not consider the written arguments and citations filed by the plaintiff.

8. Heard the learned counsel for Appellant.

9. In view of the rival contentions raised by both the parties, the points that arise for consideration are :-

1) Whether the plaintiff is entitled for declaration and injunction as prayed for ?

2) Whether the Judgment and Decree dated 31.10.2018 in O.S.No. 125 of 2014 passed by the I

Junior Civil Judge, City Civil Court, Secunderabad is

in accordance with law and facts of the case?

:: 13 of 22 :: A.S.No. 4 of 2019

10. POINT NO.1 :- Whether the plaintiff is entitled for declaration and injunction as prayed for ?

This being an Appellate Court, the evidence on record can be reappreciated to find out whether any illegality is committed by the

Trial Court in dismissing the suit.

WRITTEN ARGUMENTS FILED BY BOTH THE PARTIES

It is the contention of the learned counsel for plaintiffs that plaintiffs did not make any construction or done any deviation after purchasing the suit schedule property. Hence, the impugned notice issued to the plaintiffs is illegal and not applicable to the plaintiffs.

Sec.452 notice will be issued to the persons, who are making constructions or who made constructions. In the notice, it was not mentioned that the plaintiffs made construction. The plaintiffs are bonafide purchasers.

11.As seen from the written arguments filed by the plaintiffs, it is replica of grounds of appeal. Further, this Court perused the entire written arguments of the plaintiffs meticulously. The counsel for the plaintiffs mentioned in the written arguments about the decision in the case of Viqarunnissa Begum (Died) and Ors. v. Municipal

Corporation of Hyderabad reported in 2009 (2) ALT 652. But, the :: 14 of 22 :: A.S.No. 4 of 2019 counsel for plaintiffs did not file any citation pertaining to the above said case.

12.On the other hand, the learned counsel for the defendant argued that all the contentions of the plaintiffs are false and that the plaintiffs is not entitled for any relief.

13. Now the point that arises for consideration is :-

Whether the plaintiffs is entitled for declaration of

impugned Notice dated 14.2.2014 issued under

Sec. 452 of the HMC Act is bad in law, illegal void

and ultravires and to set side the same?

Let us have a glance of Sec. 452 of the HMC Act 1955, which reads as under :-

Section 452(1) in Greater Hyderabad Municipal

Corporation Act, 1955 :- (1) If the Commissioner is satisfied that the construction or re-construction of any building or execution of any work as described in section 433 is commenced or carried out contrary to the provisions of the Act or building rules or bye-laws made thereunder, he shall make a provisional order requiring the person :: 15 of 22 :: A.S.No. 4 of 2019 who is constructing or re-constructing such building or executing such work or has constructed or re- constructed such building or executed such work to demolish such unauthorized construction or re- construction or work within a period specified to bring such construction or re-construction of the building or work in conformity with the provisions of the Act or building rules or Bye-laws made thereunder and may also direct that until the said order is complied with, the concerned person shall refrain from proceeding with, such construction or reconstruction of the building or work.

In view of the above provision of law, it appears that if the erection of any building or execution of any such work as is mentioned Sec.433 is commenced or carried out contrary to the provisions of the Act or Building Laws, the Commissioner shall issue written notice requiring the person, who is constructing or re- constructing such building or executing such work or has constructed or re-constructed such building or executed such work to show cause why such building or work was not removed, altered and pull down. Upon receiving of said notice that person, who attained :: 16 of 22 :: A.S.No. 4 of 2019 personally or through an agent to show cause sufficient cause. If such person failed to show sufficient cause to the satisfaction of the

Commissioner, the Commissioner may remove, alter or pull-down building or work.

Sec. 433 of the HMC Act, 1955 reads as under :-

433. Notice to be given to the Commissioner of intention to make additions, etc., to buildings.-

Every person who shall intend -

(a) to make any addition to a building; or

(b)to make any alteration or repairs to a building; not being a frame-building, involving the removal or re- erection of any external or party-wall thereof or of any wall which supports the roof thereof, to an extent exceeding one-half of such wall above the plinth level, such half to be measured in superficial feet; or

(c)to make any alteration or repairs to a framebuilding, involving the removal or re-erection of more than one-half of the posts in any such wall thereof as aforesaid or involving the removal or re-erection of any such wall thereof as aforesaid to an extent :: 17 of 22 :: A.S.No. 4 of 2019 exceeding one-half of such wall above the plinth level, such half to be measured in superficial feet; or

(d)to make any alteration in a building involving :-(i) the sub-division of any room in such building so as to convert the same into two or more separate rooms;(ii) the conversion of any passage or space in such building into a room or rooms; or

(e)to remove or reconstruct any portion of a building abutting on a street which stands within the regular line of such street; Shall give to the Commissioner in a form obtained for the purpose under section 435 notice of his intention, specifying the portion of the building in which such work is to be executed, the nature and extent of the intended work, the particular part or parts, if any, of such work which is or are intended to be used for human habitation and the name of the person whom he intends to employ to supervise its execution.

14.It is an admitted fact that defendant had given notice under

Sec. 452 of the HMC Act, 1955 to the plaintiffs. The PW1 admitted in her evidence that the defendant issued notice under Ex.A2 and she gave reply under Ex.A3. Ex.A2 Notice states that Sri Gulabnoo :: 18 of 22 :: A.S.No. 4 of 2019

Yadgar Chenoy obtained building permission for the proposed construction of ground and first floor for residential purpose within the premises No.8-1-26 to 28, situated at Market Street,

Secunderabad vide permit No.173/81 dated 24.4.2009 in File

No.3277/TPS/C-18/NZ/GHMC/B5/2008 and commenced the construction work without issuing the commencement of work notice under Sec.440 of the HMC Act, 1955 and further, has not complied with the conditions stipulated on the sanctioned plan.

15.While constructing the building, the owners have carried out the construction contrary to the sanctioned plan by excavating the ground for construction of cellar, which is illegal and unauthorized for which, the defendant issued the show cause notice under Sec. 452 of the HMC Act, 1955 and in response to that, they approached the City

Civil Court and obtained injunction order. During the pendency of the suit, they completed the construction work by constructing the building consisting of cellar for parking, ground floor for shops, first floor for prayer hall, second and third floors and pent-house for residential purpose instead of permitted ground and first floor i.e.

illegally constructed cellar, second, third floors and pent-house at 4th floor and also converted the ground floor for commercial purpose.

:: 19 of 22 :: A.S.No. 4 of 2019

The said suit in O.S.No.489/2009 and O.S.No.335/2009 were dismissed. Then Smt.K.Lakshmi has approached the City Civil Court,

16.The City Civil Court decreed the suit in favour of K.Lakshmi by directing the defendants not to make any further constructions and the defendant herein was directed to remove the illegal constructions in ‘B’ Schedule property, which are affecting the easementary rights of the said plaintiffs. Smt.K.Lakhsmi and P.Krishna Murthy approached the Hon’ble High Court by filing writ petitions with prayer to take action against illegal constructions made at Premises No.8-1- 26 to 28, situated at Shivaji Nagar, Market Street, Secunderabad.

Therefore, it is deemed that the plaintiff violated the provisions contained in Sec.428 and 433 of the HMC Act, 1955 and also

G.O.Ms.No.86-A, dated 3.3.2006, Building Bue-Laws and Zoning

Regulations, 1981.

17.The plaintiffs issued reply notice under Ex.A3 stating that they are the absolute owners having purchased the same under registered

Sale Deed on 28.9.2010. Ex.A4 to Ex.A13 show that the plaintiffs are the owner of the suit schedule property having purchasing the same in the year 2010.

18.As seen from the sanctioned plan under Ex.B3, only sanction was pertaining to construction of ground and first floors. Nothing has :: 20 of 22 :: A.S.No. 4 of 2019 been elicited in the cross-examination of DW1 to disbelieve his evidence.

19. BUYER BE AWARE :-

It is an admitted fact that the plaintiffs purchased the suit schedule property in the year 2010 under Ex.A1. By the time, plaintiffs purchased the property, it was not completed. A prudent man while purchasing the property should see whether the said building is constructed as per the sanctioned plan or not. But, in the present case, the plaintiffs is saying that they are the bonafide purchasers and did not see the sanctioned plan. In cross- examination PW1 admitted that they verified the sanctioned plan and purchased the suit property. The sanctioned plan reveals that the suit property is for commercial purpose. She again stated that she does not know that the GHMC granted the sanction for residential purpose, but not for commercial purpose.

20.By the above said evidence of PW1, it appears that she did not thoroughly go through the sanctioned plan of the said property. Firstly, the entire building was constructed against the sanctioned plan illegally. Further more, the suit property should be used as residential purpose only, but not for commercial purpose. PW1 admitted that she gave the suit schedule property :: 21 of 22 :: A.S.No. 4 of 2019 for lease for a shop for selling coconuts. So, it appears that the plaintiffs are using the suit property not for residential purpose but using the same for commercial purpose. So, whatever contentions made by the defendant are proved by the evidence of PW1 and also as per Ex.B3.

21.The burden of proof lies on the plaintiffs to prove that the notice issued by the defendant is illegal and they are entitled for injunction. But, in the present case, the plaintiffs failed to prove their contentions. On the other hand, it is clearly established that not only the suit property, but also entire building under the names of Jamshed Hall Trust was illegally constructed against the sanctioned plan or contrary to the sanctioned plan, illegally and unauthorizedly. Further more, it is established that plaintiffs are entitled only to use the suit property for residential purpose but not for commercial purpose. But in the present case, the plaintiff is using the suit property for commercial purpose and they did not produce any evidence to show that they are entitled to use the suit property for commercial purpose. Consequently, the plaintiffs are not entitled for any declaration or injunction as prayed for. This

Court holds the Point No.1 against the plaintiff.

:: 22 of 22 :: A.S.No. 4 of 2019

22. POINT NO.2 :- Whether the Judgment and Decree dated

31.10.2018 in O.S.No. 125 of 2014 passed by the I Junior Civil

Judge, City Civil Court, Secunderabad is in accordance with

law and facts of the case?

In view of the discussion made supra and also on perusal of the Judgment of the trial Court, it appears that the learned I Junior

Civil Judge, City Civil Court, Secunderabad passed the Judgment

dated 31.10.2018 in O.S.No.125 of 2014 in accordance with law and

facts of the case and it is to be confirmed. This Court holds the

Point No.2 accordingly.

23.In the result, the Appeal is hereby dismissed.

Typed to my dictation, corrected and pronounced by me in the open Court on this the 16th day of April, 2024.

I ADDITIONAL CHIEF JUDGE,

CITY CIVIL COURT, SECUNDERABAD.

APPENDIX OF EVIDENCE - NIL

I ADDITIONAL CHIEF JUDGE,

CITY CIVIL COURT, SECUNDERABAD.

IN THE COURT OF THE I ADDITIONAL CHIEF JUDGE,

CITY CIVIL COURT, SECUNDERABAD.

Present : SRI JANGA JEEVAN KUMAR

I Additional Chief Judge

DATED THIS THE 16th DAY OF APRIL, 2024

A.S. NO. 3 OF 2019

Between:

Jayantilal Jain S/o late Otarmal Jain -- Appellant AND

The Deputy Commissioner, Greater Hyderabad Municipal Corporation --Respondent

On Appeal against the Judgment and Decree dated

31.10.2018 in O.S.No.127 of 2014 passed by the learned I

Junior Civil Judge, City Civil Court, Secunderabad.

O.S. NO. 127 OF 2014

Between :-

Jayantilal Jain S/o late Otarmal Jain -- Plaintiff

AND

The Deputy Commissioner, Greater Hyderabad Municipal Corporation --Defendants

This Appeal is coming before me for final hearing and disposal in the presence of Sri Wasim Ahmed Khan, Advocate for the

Appellants and of Sri R.Sudhakar, Advocate for Respondent and the matter having been heard and stood over for consideration till this day, this Court delivered the following :- :: 2 of 20 :: A.S.No. 3 of 2019

J U D G M E N T

1. This Appeal is filed by the Appellant challenging Judgment and

Decree dated 31.10.2018 in O.S.No. 127 of 2014 passed by the learned I Junior Civil Judge, City Civil Court, Secunderabad, dismissing the suit.

2.The plaintiff filed the suit in O.S.No.127 of 2014 on the file of I

Junior Civil Judge, City Civil Court, Secunderabad for declaration of impugned Notice dated 14.2.2014 issued under Sec. 452 of the HMC

Act is bad in law, illegal void and ultravires and to set side the same and perpetual injunction against the defendant restraining it from interfering with the plaintiff’s possession or from demolishing the suit schedule property.

3. THE BRIEF AVERMENTS IN THE PLAINT ARE AS

FOLLOWS :-

The plaintiff is the absolute owner and possessor of property bearing premises No.8-1-26 to 28, Southern Side of Flat No.S-1,

Second Floor, situated at Shivajinagar, Market Street,

Secunderabad, having purchased the same under registered Sale

Deed dated 23.05.2012. After purchasing the suit schedule property, he is exercising all the rights of ownership and possession by residing in it with their family. The GHMC has already assessed :: 3 of 20 :: A.S.No. 3 of 2019 the schedule property in the municipal records in the name of the

Plaintiff and they have given the number as 8-1-26 to 28/Flat No.S- 1 and collecting Commercial property tax from the Plaintiff, after duly assessing them in their property assessment register. While so, the officials of the Defendant came to the suit property on 15.02.2014 and the I Junior Civil Judge, City Civil Court,

Secunderabad has directed the GHMC to demolish II and III Floor of the above building in a suit vide O.S.No.779/2010 filed by

K.Lakshmi, a neighbour against the owners of the above property.

In said case, the owners filed A.S.No. 16/2014 on the file of the I

Additional Chief Judge, City Civil Court, Secunderabad and obtained

interim suspension of the lower court Judgment and Decree date 4.12.2013 in I.Α.Νο.318/2014. Thereafter, the Defendant has issued a notice dated 14.02.2014 under Section 452 of GHMC Act interalia contending that originally the owner has obtained permission for residential purpose and converted the same into commercial shop and the Plaintiff was asked to submit reply within 7 days. Hence, the plaintiff has submitted a detailed reply dated 19.02.2014 stating that the notice is bad in law and contrary to the provisions of GHMC Act and that he is not aware that the owners of the building have commenced the work without issuing notice under

Section 440 of the HMC Act, after obtaining the Sanction or they :: 4 of 20 :: A.S.No. 3 of 2019 have contravened the terms and conditions of the Sanction and committed deviations and she is not aware about the issuance of

Sec.452 notice to the owners on 19.06.2009, as the owners never informed to her. The plaintiff is not aware that the owners have filed O.S.No.498/2009, on the file of the City Civil Court or about obtaining injunction order, as she was not party to it. Similarly, the

Plaintiff is also not aware about the dismissal of O.S.No.498 and 335 of 2009 filed by the owners, as he was not party to them. He is not aware about filling of W.P.No.2691/2011 by Smt.K.Lakshmi or about filing of W.P.No.28258/2012 by P.Krishnamurthy, as the

Plaintiff was not party to it. The plaintiff is also paying the property taxes regularly and at no point of time, the plaintiff was not informed by the GHMC that the schedule property was illegally constructed. Now after so many years, the Defendant has now for the first time issued the impugned notice under Sec.452, informing that the Flat is illegally constructed by the Builder. The impugned notice issued by the Defendant/GHMC is not applicable to the

Plaintiff, as he is not erecting or erected the suit property/building.

The suit property is not creating any nuisance or problem to the public nor its existence is posing any threat to the common public.

The impugned notice is completely illegal, arbitrary and unconstitutional and also bad in law and contrary to the provisions :: 5 of 20 :: A.S.No. 3 of 2019 of GHMC Act and therefore, the same has to be declared as void, illegal and not binding on the Plaintiff. The officials of the

Defendant have come to the suit property on 01.03.2014 and 06.03.2014 and threatened the Plaintiff and others with dire consequences that they will come and demolish the suit property.

However, on the resistance of the Plaintiff and other occupiers of the adjacent mulgies, the officials of the Defendant went away, leaving threats that they will come again with more force and demolish the suit property. Now, the plaintiff is apprehending that the Defendant/GHMC may any time come and demolish the suit property, in which case, the Plaintiff shall suffer heavy and irreparable loss. Hence the Plaintiff is constrained to file the above suit for Declaration and Consequential Injunction restraining the

Defendant/GHMC from interfering with the Plaintiff's peaceful possession or from demolishing the suit property

4. DEFENDANT FILED WRITTEN STATEMENT :-

The defendant denied the averments mentioned in the plaint and submitted that the suit is not maintainable either in law or facts. The Plaintiff filed the present suit against the defendant without issuing notice under Sec.685 of HMC Act, which is mandatory. It is submitted by the defendant that Smt. K.Lakshmi has filed a suit in O.S.No 779 of 2010 against GHMC and Jamshed :: 6 of 20 :: A.S.No. 3 of 2019

Hall Trust and the same is decreed on 04.12.2013 with the

Following Judgment "In the result, suit is decreed without costs by granted perpetual Injunction restraining defendants 1 to 3 from carrying out any further construction activity in the schedule B property. Further, defendants are directed to remove the illegal constructions in the ‘B’ schedule property, which are affecting the easementary rights of the plaintiffs". As per the above order, the officials of the Defendant Corporation has issued final notice under

Sec.636 of HMC Act, 1955 upon Jamshed Hall Trust and demolished the deviations and illegal constructions, which are in possession of

Jamshed Hall trust. For the other owners and the Plaintiffs, the officials of the Defendant corporation have issued the show cause notice under Sec.452 of the HMC Act, 1955 duly giving (7) days time on 14.02.2014. The plaintiff and other owners submitted their explanations on 20.02.2014. Aggrieved by the action initiated by the defendant corporation, Jamshed Hall Trust has filed appeal suit in A.S.No.16 of 2014 and the Plaintiff has filed the present suit. It is the duty of the Plaintiff to verify the sanctioned plan before purchasing any property and she cannot submit that she is not aware of anything. It is a fact that the building permission has been granted to Jamshed Hall Trust for the proposed construction of ground and first floor for residential purpose vide permit No.173/81 :: 7 of 20 :: A.S.No. 3 of 2019

dated29.04.2009intheFileNo.3277/TPS/C-18/NZ/

GHMC/B5/2008 within premises No.8-1-26 to 28 situated at Market street, Secunderabad. While constructing the building Jamshed Hall

Trust resorted to an illegal and unauthorized digging of ground and laid the slab for cellar floor, which is not covered by the sanctioned plan. Hence, the officials of the defendant corporation have issued the show cause notice under Sec.452 of the HMC Act, 1955, dated 18.06.2009 upon Jamshed Hall Trust. The Jamshed Hall Trust without submitting their explanation have suo-motto approached the Hon'ble City Civil Court in I.A.No.635/2009 in O.S.No 498/2009 to safeguard their illegal and unauthorized construction of cellar, which are not covered by the sanctioned plan. Under the shelter of the court orders, Jamshed Hall Trust has constructed the building consisting of cellar, ground + (3) upper floors and partly fourth floor and converted the residential building into commercial purpose. It is fault of the Plaintiff since she has purchased the property without

Verifying the sanctioned plan. It is submitted by the defendant that

Smt. K.Lakshmi has also filed Writ petition No. 2691 of 2011 before the Hon'ble High Court against GHMC & Jamshed Hall Trust with a prayer to direct the GHMC to take steps for the removal of illegal construction made by Jamshed Hall Trust in the premises bearing

No. 8-1-26(old No. 6828), situated at Shivaji Nagar, Market street, :: 8 of 20 :: A.S.No. 3 of 2019

Secunderabad. Further, another neighbour Sri P.Krishna Murthy has also filed W.P.No 28258 of 2012 against GHMC & Jamshed Hall

Trust with a prayer to direct GHMC to remove all the illegal constructions made by the Jamshed Hall Trust at the Premises bearing No. 8-1-26 to 28 (old No. 6828), situated at Shivaji Nagar,

Market street, Secunderabad. In terms of judgment and decree in

O.S.No.779 of 2010, the officials of the defendant corporation have

issued the show cause notice under Sec.452 of the HMC Act, 1955 on 14.02.2014. The plaintiff himself is requesting to regularize the deviations, which clearly indicates that the plaintiff is aware of the deviations and illegal construction. Moreover, at present, there is no

Building Regularization Scheme. The Building Penalisation Scheme was introduced in the year 2008 for regularization of the constructions made before 15.12.2007. Hence, the construction made by the plaintiff is not applicable under Building Penalization

Scheme. Moreover, the Building Penalisation scheme is closed on 31-05-2013. Further, the Building cannot be regularized under

Section 455-A of the HMC Act, 1955 since the building is constructed in violation of required mandatory setbacks. The vehicles coming to the shops are parking on the road margin and causing inconvenience to the general public as well as the neighbours, who have filed the complaint petitions and also suits & :: 9 of 20 :: A.S.No. 3 of 2019 writ petitions in the lower court and High court respectively. The allegations of the plaintiff that the defendant corporation visited the site and tried to demolish is false and in correct. The illegal and unauthorized constructions are not covered by the sanctioned plan.

Hence, the defendant prayed to dismiss the suit with exemplary costs.

5.Basing the rival contentions of the parties, the trial Court has framed the following issues and additional issues :-

1. Whether the plaintiff is entitled for perpetual injunction as prayed for?

2. To what relief?

6.During the course of trial before the trial Court, PW1 was examined and Ex.A1 to Ex.A10 were marked on behalf of the plaintiff and whereas, on behalf of the defendant, DW1 was examined and

Ex.B1 to B5 were marked.

7.After considering the oral and documentary evidence on record, the trial Court dismissed the suit. Being aggrieved by the said

Judgment, the Plaintiff preferred the present Appeal by challenging the same on various grounds, which are urged as follows:

1. That the decree under the Appeal is contrary to law and merits of the case.

:: 10 of 20 :: A.S.No. 3 of 2019

2. The trial Court dismissed the suit even though the

plaintiff has established her case and discharged

the burden.

3. The defendant failed to discharge the onus as the

burden had shifted on them as per Sec. 101 to 104

of the Evidence Act.

4. The learned judge has failed to see that Sec. 452

Notice was not at all applicable to the plaintiff.

5. The learned judge has failed to see that the DW1

without issuing Sec. 636 Notice has falsely

contended that the GHMC has the same and he was

asked to produce the same, failed to produce the

same.

6. The learned judge has failed to see that the Plaintiff

was not party to the earlier litigation or cases filed

by the neighbours against the original

owners/vendors of the plaintiff.

7. The learned judge has erred in holding that the

Plaintiff cannot come within the meaning of

bonafide purchaser.

:: 11 of 20 :: A.S.No. 3 of 2019

8. The trial Court failed to see that a new scheme was

introduced by the Government in the year 2015.

9. The learned judge has failed to see that the Plaintiff

applied for regularization as per 2015 BRS scheme

on 16.12.2015.

10. The learned judge ought to have decreed the

suit, as the Court got Sec.685 Notice dispensed with

while filing the suit.

11. The trial Court erred in holding that the

plaintiff is not entitled for perpetual injunction in

view of Sec. 41 (A) of Specific Relief Act against the

legal proceedings issued by the defendant. In fact,

the said objection or defence was not taken by the

defendant.

12. The trial Court did not consider the written arguments and citations filed by the plaintiff.

8. Heard the learned counsel for Appellant.

9. In view of the rival contentions raised by both the parties, the points that arise for consideration are :- :: 12 of 20 :: A.S.No. 3 of 2019

1) Whether the plaintiff is entitled for declaration and injunction as prayed for ?

2) Whether the Judgment and Decree dated 31.10.2018 in O.S.No. 127 of 2014 passed by the I

Junior Civil Judge, City Civil Court, Secunderabad is

in accordance with law and facts of the case?

10. POINT NO.1 :- Whether the plaintiff is entitled for declaration and injunction as prayed for ?

This being an Appellate Court, the evidence on record can be reappreciated to find out whether any illegality is committed by the

Trial Court in dismissing the suit.

WRITTEN ARGUMENTS FILED BY BOTH THE PARTIES

It is the contention of the learned counsel for plaintiff that plaintiff did not make any construction or done any deviation after purchasing the suit schedule property. Hence, the impugned notice issued to the plaintiff is illegal and not applicable to the plaintiff.

Sec.452 notice will be issued to the persons, who are making constructions or who made constructions. In the notice, it was not mentioned that the plaintiff made construction. The plaintiff is a bonafide purchaser.

:: 13 of 20 :: A.S.No. 3 of 2019

11.As seen from the written arguments filed by the plaintiff, it is replica of grounds of appeal. Further, this Court perused the entire written arguments of the plaintiff meticulously. The counsel for the plaintiff mentioned in the written arguments about the decision in the case of Viqarunnissa Begum (Died) and Ors. v. Municipal Corporation of Hyderabad reported in 2009 (2) ALT 652. But, the counsel for plaintiff did not file any citation pertaining to the above said case.

12.On the other hand, the learned counsel for the defendant argued that all the contentions of the plaintiff are false and that the plaintiff is not entitled for any relief.

13. Now the point that arises for consideration is :-

Whether the plaintiff is entitled for declaration of

impugned Notice dated 14.2.2014 issued under

Sec. 452 of the HMC Act is bad in law, illegal void

and ultravires and to set side the same?

Let us have a glance of Sec. 452 of the HMC Act 1955, which reads as under :-

Section 452(1) in Greater Hyderabad Municipal

Corporation Act, 1955 :- (1) If the Commissioner is satisfied that the construction or re-construction of any building or :: 14 of 20 :: A.S.No. 3 of 2019 execution of any work as described in section 433 is commenced or carried out contrary to the provisions of the Act or building rules or bye-laws made thereunder, he shall make a provisional order requiring the person who is constructing or re-constructing such building or executing such work or has constructed or re-constructed such building or executed such work to demolish such unauthorized construction or re-construction or work within a period specified to bring such construction or re- construction of the building or work in conformity with the provisions of the Act or building rules or Bye-laws made thereunder and may also direct that until the said order is complied with, the concerned person shall refrain from proceeding with, such construction or reconstruction of the building or work.

In view of the above provision of law, it appears that if the erection of any building or execution of any such work as is mentioned

Sec.433 is commenced or carried out contrary to the provisions of the

Act or Building Laws, the Commissioner shall issue written notice requiring the person, who is constructing or re-constructing such building or executing such work or has constructed or re-constructed such building or executed such work to show cause why such building or work was not removed, altered and pull down. Upon receiving of said notice that person, who attained personally or through an agent to show cause sufficient cause. If such person failed to show sufficient :: 15 of 20 :: A.S.No. 3 of 2019 cause to the satisfaction of the Commissioner, the Commissioner may remove, alter or pull-down building or work.

Sec. 433 of the HMC Act, 1955 reads as under :-

433. Notice to be given to the Commissioner of intention to make additions, etc., to buildings.- Every person who shall intend -

(a) to make any addition to a building; or

(b)to make any alteration or repairs to a building; not being a frame-building, involving the removal or re- erection of any external or party-wall thereof or of any wall which supports the roof thereof, to an extent exceeding one-half of such wall above the plinth level, such half to be measured in superficial feet; or

(c)to make any alteration or repairs to a framebuilding, involving the removal or re-erection of more than one-half of the posts in any such wall thereof as aforesaid or involving the removal or re-erection of any such wall thereof as aforesaid to an extent exceeding one-half of such wall above the plinth level, such half to be measured in superficial feet; or :: 16 of 20 :: A.S.No. 3 of 2019

(d)to make any alteration in a building involving :-(i) the sub-division of any room in such building so as to convert the same into two or more separate rooms;(ii) the conversion of any passage or space in such building into a room or rooms; or

(e)to remove or reconstruct any portion of a building abutting on a street which stands within the regular line of such street; Shall give to the Commissioner in a form obtained for the purpose under section 435 notice of his intention, specifying the portion of the building in which such work is to be executed, the nature and extent of the intended work, the particular part or parts, if any, of such work which is or are intended to be used for human habitation and the name of the person whom he intends to employ to supervise its execution.

14.While constructing the building, the owners have carried out the construction contrary to the sanctioned plan by excavating the ground for construction of cellar, which is illegal and unauthorized for which, the defendant issued the show cause notice under Sec. 452 of the

HMC Act, 1955 and in response to that, they approached the City Civil

Court and obtained injunction order. During the pendency of the suit, :: 17 of 20 :: A.S.No. 3 of 2019 they completed the construction work by constructing the building consisting of cellar for parking, ground floor for shops, first floor for prayer hall, second and third floors and pent-house for residential purpose instead of permitted ground and first floor i.e. illegally constructed cellar, second, third floors and pent-house at 4th floor and also converted the ground floor for commercial purpose. The said suit in O.S.No.489/2009 and O.S.No.335/2009 were dismissed. Then

Smt.K.Lakshmi has approached the City Civil Court,

15.The City Civil Court decreed the suit in favour of K.Lakshmi by directing the defendants not to make any further constructions and the defendant herein was directed to remove the illegal constructions in ‘B’ Schedule property, which are affecting the easementary rights of the said plaintiffs. Smt.K.Lakhsmi and P.Krishna Murthy approached the Hon’ble High Court by filing writ petitions with prayer to take action against illegal constructions made at Premises No.8-1-26 to 28, situated at Shivaji Nagar, Market Street, Secunderabad. Therefore, it is deemed that the plaintiff violated the provisions contained in

Sec.428 and 433 of the HMC Act, 1955 and also G.O.Ms.No.86-A,

dated 3.3.2006, Building Bue-Laws and Zoning Regulations, 1981.

16.The plaintiff issued reply notice under Ex.A2 stating that he is the absolute owner of suit property having purchased the same under :: 18 of 20 :: A.S.No. 3 of 2019 registered Sale Deed on 23.05.2012. Ex.A3 to Ex.A9 show that the plaintiff is the owner of the suit schedule property having purchasing the same in the year 2012.

17.As seen from the sanctioned plan under Ex.B3, only sanction was pertaining to construction of ground and first floors. Nothing has been elicited in the cross-examination of DW1 to disbelieve his evidence.

18. BUYER BE AWARE :-

It is an admitted fact that the plaintiff purchased the suit schedule property in the year 2012 under Ex.A1. By the time, plaintiff purchased the property, it was not completed. A prudent man while purchasing the property should see whether the said building is constructed as per the sanctioned plan or not. But, in the present case, the plaintiff is saying that he is a bonafide purchaser and did not see the sanctioned plan. In cross-examination PW1 admitted that he verified the sanctioned plan and purchased the suit property. The sanctioned plan reveals that the suit property is for commercial purpose. He again stated that he does not know that the GHMC granted the sanction for residential purpose, but not for commercial purpose.

:: 19 of 20 :: A.S.No. 3 of 2019

19.By the above said evidence of PW1, it appears that he did not thoroughly go through the sanctioned plan of the said property.

Firstly, the entire building was constructed against the sanctioned plan illegally. So, whatever contentions made by the defendant are proved by the evidence of PW1 and also as per Ex.B3.

20.The burden of proof lies on the plaintiff to prove that the notice issued by the defendant is illegal and she is entitled for injunction. But, in the present case, the plaintiff failed to prove his contentions. On the other hand, it is clearly established that not only the suit property, but also entire building under the names of

Jamshed Hall Trust was illegally constructed against the sanctioned plan or contrary to the sanctioned plan illegally and unauthorizedly.

Consequently, the plaintiff is not entitled for any declaration or injunction as prayed for. This Court holds the Point No.1 against the plaintiff.

21. POINT NO.2 :- Whether the Judgment and Decree dated

31.10.2018 in O.S.No.127 of 2014 passed by the I Junior Civil

Judge, City Civil Court, Secunderabad is in accordance with law

and facts of the case?

In view of the discussion made supra and also on perusal of the Judgment of the trial Court, it appears that the learned I Junior :: 20 of 20 :: A.S.No. 3 of 2019

Civil Judge, City Civil Court, Secunderabad passed the Judgment

dated 31.10.2018 in O.S.No.127 of 2014 in accordance with law and

facts of the case and it is to be confirmed. This Court holds the

Point No.2 accordingly.

22.In the result, the Appeal is hereby dismissed.

Typed to my dictation, corrected and pronounced by me in the open Court on this the 16th day of April, 2024.

I ADDITIONAL CHIEF JUDGE,

CITY CIVIL COURT, SECUNDERABAD.

APPENDIX OF EVIDENCE - NIL

I ADDITIONAL CHIEF JUDGE,

CITY CIVIL COURT, SECUNDERABAD.