Sri K Sreenivasa Rao

IN THE COURT OF THE XXVII ADDITIONAL CHIEF JUDGE,

CITY CIVIL COURT: SECUNDERABAD.

Present : Sri.K. Sreenivasa Rao, XXVII Addl. Chief Judge, City Civil Court, Secunderabad.

DATED THIS THE 28th DAY OF DECEMBER, 2018.

O.S. NO. 170 OF 2011

Between:

Dr. T.G.K. Mahadev rep. by his GPA Holder Wg. Cdr. T.S.Mahadev --Plaintif

A N D

1. Amitesh Jeet Singh

2. Army Welfare Cooperative Housing Society rep. by its General Secretary

3. The Secunderabad Cantonment Board rep. by its CEO--Defendants

This suit is coming on this day before me for final hearing in the presence of Sri K.Sreedhar Reddy, Advocate for the plaintif and of Sri D.S.Rao, Advocate for defendant No.1 and of Sri K.R.Koteshwar Rao, Advocate defendant No.3. and defendant No.2 remained ex parte and the matter having been heard and stood over till this day for consideration, this Court delivered the following :

// J U D G M E N T //

1.This suit is filed for mandatory injunction directing D1 to remove the room in front of the dwelling unit at ground floor constructed, by encroaching upon the open place and to remove the extension of roof on the sides of the dwelling unit on ground floor as shown in the plaint plan and as shown in plaint A to F schedules in red colour. In case of failure of D1,

D3 may be directed to remove the illegal and unauthorized constructions of

D1.

2.According to the plaintif, he is absolute owner and possessor of dwelling unit bearing Flat No.184, First Floor, Type IV, Sector ‘A’ of

Survey No. 157/1 of Thokatta Village, Secunderabad Cantonment and in

Sy.No.56/2 of Kakaguda Village, Secunderabad Cantonment. Originally, the dwelling unit was constructed by Army Welfare Housing Organization (AWHO), New Delhi which is a parent body of the D2 Society for welfare of armed persons. The plaintif’s brother Wg. Cdr. T.S.Mahadev purchased the said dwelling unit from the original allottee under the housing scheme in the year 1996. Thereafter, the regular Conveyance Deed was executed in favour of plaintif’s brother by D2 Society. The dwelling unit was gifted by his brother and GPA Holder T.S.Mahadev in favour of his son Vikas

Sathidev by registered Gift Settlement Deed dated 6.1.2007, who in turn gifted the same in favour of plaintif by registered Gift Settlement Deed

dated 5.5.2008.

3.Two flats over ground floor and above it, two dwelling units were constructed over common walls and roof leaving open space for air, light and ventilation. In the Rules framed by D2 Society, no member is allowed to make any alterations to the existing structures occupied over the ground floor without permission and no objection from D2 Society and the first floor occupant. If any new constructions are carried out, the member has to obtain permission from the Secunderabad Cantonment

Board (D3).

4.The plaintif and his wife are doctors and are working in UK.

Presently, his brother and GPA holder of plaintif are staying in the suit dwelling unit who used to always be on the tour flying all over the country as he is pilot in the United Helicharters Pvt. Ltd. Mumbai.

5.By taking undue advantage of their absence, D1 alongwith parents high-handedly encroached the open space in front of their dwelling unit and constructed a room and also extended the roof area all the rooms all around the dwelling unit of D1. The plaintif’s brother visited in May, 2011 and surprised to notice the changes of dwelling unit of D1.

Immediately, plaintif’s brother informed D2 Society. They also visited and asked about unauthorized construction of D1 over his dwelling unit. Due to illegal construction D1, the rights of plaintif’s dwelling unit will be greatly jeoparized, the entire privacy, air, light and ventilation will be efected greatly. There will be no security and it is easy to climb up to enter into the suit building. The entire constructions of D1 is in utter violation of the rules and regulations of the D2 Society and without approval of Secunderabad

Cantonment Board (D3). D1 paid deaf ear about the complaint of the plaintif and D2 Society is not responding to plaintif. Hence, the suit for mandatory injunction.

6.Due to illegal construction, the entire appearance of suit dwelling unit is in bad shape and lost its value apart from efecting easementary rights of light, air and ventilation and also privacy and safety.

Therefore, D1 is liable to pay damages of Rs.10 Lakhs.

7.Written Statement was filed by D1 stating that the suit dwelling unit is on the first floor above the dwelling unit of D1. Father of D1 is a retired Army Officer, Major J.B.S. Anand. All the occupants modified their dwelling units almost. D1 is forced to modify as per the requirements and also to overcome the vastu dosham i.e. negative force. D1 made some minor modifications to his unit which are very negligible and they do not deprive any easementary rights of free flow of air, light, visibility, etc. of plaintif. Infact the modifications of D1 bring beautification to locality of D2

Society. Therefore, neither D2 nor D3 objected for the same. Almost 95% dwelling units have been modified as on today. After purchasing it, defendant unit No.183, Ground Floor, it was full of vastu defects and required minor additions and alterations. D1 deposited Rs. 7,500/- towards security deposit to carry out repairs including additions and alterations and it amounts to permission. D1 took oral permission personally from the occupants of dwelling unit No.1 and 4, First Floor i.e.

GPA Holder of plaintif informed the same over telephone talk dated 14.9.2010. The plaintif with the instigation of D2 Society filed the present suit with false averments.

8.This Court has no territorial jurisdiction to try the matter because the plaintif and D1 are members of D2 Society. As per bye laws of D2, the dispute between members have to be referred to the Registrar of Societies.

9.D2 remained ex parte.

10.D3 filed written statement that due to erection of the serenity of design and uniform layout is efected thereby causing discomfort to the neighbours. The representation of plaintif is marked to D3 without any request to take action on the issue. Before contemplating action on the constructions raised by D1 by referring the matter to the Board of D3, the plaintif approached this Court and filed the present suit.

11.Basing on the pleadings, the following issues are settled for trial:-

1)Whether the constructions or extensions made by the 1st defendant encroached the area of the plaintif ?

2)Whether the constructions made by the 1st defendant on the alleged reason of vasthu is legal?

3)Whether the extensions made by the 1st defendant without any sanction plan or approval is sustainable in law?

4)Whether the plaintif is entitled for mandatory injunction sought for?

5)To what relief?

The following additional issues are also settled:-

1)Whether this Court has no territorial jurisdiction to try the suit?

2)Whether the dispute between the plaintif and defendant

No.1 is hit by the provisions of Cooperative Societies Act relief?

12.On behalf of plaintif, PW1 to PW3 were examined and Exs.A1 to A10 were marked. On behalf of the defendants, DW1 to DW3 were examined and Exs.B1 to B19 were marked.

13.Heard the arguments. Written arguments are filed by the plaintif and D1.

ISSUES NO.1 to 3 :-

14. PW1 is GPA Holder and brother of plaintif. According to him, plaintif is absolute owner and possessor of dwelling unit bearing Flat

No.184, First Floor, Type IV, Sector ‘A’ of Survey No. 157/1 of Thokatta

Village, Secunderabad Cantonment and in Sy.No.56/2 of Kakaguda

Village, Secunderabad Cantonment. Originally, the dwelling unit was constructed by Army Welfare Housing Organization (AWHO), New Delhi which is a parent body of the D2 Society for welfare of armed persons. The plaintif’s brother Wg. Cdr. T.S.Mahadev purchased the said dwelling unit from the original allottee under the housing scheme in the year 1996.

Thereafter, the regular Conveyance Deed was executed in favour of plaintif’s brother by D2 Society. The dwelling unit was gifted by his brother and GPA Holder T.S.Mahadev in favour of his son Vikas Sathidev by registered Gift Settlement Deed dated 6.1.2007, who in turn gifted the same in favour of plaintif by registered Gift Settlement Deed dated 5.5.2008.

15.Two flats over ground floor and above it, two dwelling units were constructed over common walls and roof leaving open space for air, light and ventilation. In the Rules framed by D2 Society, no member is allowed to make any alterations to the existing structures occupied over the ground floor without permission and no objection from D2 Society and the first floor occupant. If any new constructions are carried out, the member has to obtain permission from the Secunderabad Cantonment

Board (D3).

16.The plaintif and his wife are doctors and are working in UK.

Presently, his brother and GPA holder of plaintif are staying in the suit dwelling unit who used to always be on the tour flying all over the country as he is pilot in the United Helicharters Pvt. Ltd. Mumbai.

17.It is the case of plaintif that by taking undue advantage of their absence, D1 alongwith parents high-handedly encroached the open space in front of their dwelling unit and constructed a room and also extended the roof area all the rooms all around the dwelling unit of D1. The plaintif’s brother visited in May, 2011 and surprised to notice the changes of dwelling unit of D1. Immediately, plaintif’s brother informed D2 Society.

They also visited and asked about unauthorized construction of D1 over his dwelling unit. Due to illegal construction D1, the rights of plaintif’s dwelling unit will greatly jeoparized, the entire privacy, air, light and ventilation will be efected greatly. There will be no security and it is easy to climb up to enter into the suit building. The entire constructions of D1 is in utter violation of the rules and regulations of the D2 Society and without approval of Secunderabad Cantonment Board (D3). D1 paid deaf year about the complaint of the plaintif and D2 Society is not responding to plaintif. Due to illegal construction, the entire appearance of suit dwelling unit is in bad shape and lost its value apart from efecting easementary rights of light, air and ventilation and also privacy and safety. Therefore,

D1 is liable to pay damages of Rs.10 Lakhs.

18.The preliminary objection was taken by D1 stating that PW1 is not authorized to file the suit and depose. Ex.A4 is GPA executed by plaintif in favour of PW1. Clause 2 of Ex.A4 shows that PW1 is authorized to engage advocate. Clause 2 of GPA reads follows:

“To engage advocates, sign vakalat, verify and sign plaints, written statements etc. before the Court and settle any dispute and to deal with all matters connected with any dispute if any with reference to the mentioned property. “to deal with all matters” means including giving evidence on behalf of plaintif. It is true that the plaintif is not residing in India since 2008. PW1 is in occupation of first floor bearing No.184.”

19.DW1 admitted that plaintif is a doctor and he gave GPA in favour of his brother.

20.PW1 noticed the complete additions and extensions to the front, rear side and a kitchen during his short stay during the month of May and June 2011. Exs.B1 to B6 are photographs with front and side views but, not rear side view. According to PW1, two air conditioners were fixed on rear side at a distance of three feet from his window and it is causing not only noise pollution but also damaged sewerage pipeline of plaintif.

According to PW1, the open area is common for ground and first floor and it cannot be exclusive for ground floor people (D1). However, there is no such document seen by PW1.

21.PW2 is occupant of flat No.22 in that locality. His flat is situated in first floor. Besides that he was the General Secretary of the

Management Committee during 2006 to 2011. He deposed that as per

AWHO, Delhi, no alteration/modification or authorization shall be taken without prior permission of the Management Committee / Cantonment

Board. He sought for clarifications from AWHO, New Delhi about the exclusive rights of ground floor owners. It is replied by AWHO that in the event of natural calamities, both ground floor and first floor dwelling units have to build the dwelling units as per the existing plinth area allotted to the flat owners. Since GPA Holder of Flat No. 183 (D1) claimed absolute ownership of 348 sq. yards against 103 sq. yards, he is required to submit an affidavit stating that no alteration / modification would be carried out and the same was submitted by D1.

22.However, PW2 also made temporary shed over the garage, which belongs to him and the garage was converted as a living room without permission from AWHO. Till today, there is no rectification deed executed by D2 Society modifying the extent of land in respect of registered sale deeds.

23.PW3 is occupant of Flat No.157. He is a member of Army

Welfare Organization (AWHO). He never saw D1 as he is a resident of

New Delhi. His parents lived in flat No. 183. It is said by him that no owner has any exclusive right to the land enclosed to the compounds of G + 1 units except the duplex houses which are owned singly and exclusively by one owner. He deposed that D1 made some constructions in common area and beyond his boundaries. D1 made some alterations without getting prior permission from the Society or from the Cantonment Board. It is said by PW3 that as a member of Society, they should not do so and it is against the existing Society byelaws and Cantonment byelaws. PW3 admitted that as per Ex.A1 sale deed, the ground floor owner will have exclusive ownership over the abutting land to the ground floor unit apart from the undivided share in the building. However, PW3 stated that many owners of ground floor modified the structures in the open land and till today, the society did not take any action against such ground floor owners.

24.DW1 (D1) admitted that all the portions are newly constructed portions. There is no mention in their byelaws if there is any vastu problem (negative force), they can convert the building according to their vastu rectification without permitted sanction from D2 or D3. DW1 confirmed that bathroom is rectified, dinning room is modified, front portion also is modified and it is a room. However, DW1 asserted that he made such constructions within his four walls. But DW1 cannot forget the fact that he is bound by the byelaws. It is admitted by DW1 that as per Ex.B8, registered Conveyance Deed dated 16.4.2004, “those portions of open areas like cuts and ducts specifically provided for ventilation or for drainage purpose will not be altered by any members.”

25.DW1 also confirmed that he gave an affidavit to D2 Society that he will not make new construction in the open area. Notwithstanding such affidavit, DW1 made a room in the open area.

26.DW1 further admitted that there is resolution in the D2 Society for making modification it is incumbent upon him to get no objection certificate from the connected owners. His assertion that he obtained oral permission over telephone from the plaintif do not inspire the confidence of the Court.

27.DW1 admitted that on 4.6.2011, D2 society issued notice to him to remove his construction, declaring the modification as unauthorized structures.

28.DW2 is General Secretary of Army Welfare Cooperative

Housing Society Ltd. According to him, the purchasers found that the constructions do not suit their requirements and not meet the vastu needs.

Therefore, the said owners got modified the structures to suit their requirements without any sanction and permission from D3 Cantonment

Board. He added that ground floor unit (D1) was allotted excess land in and around the building by collecting excess cost and the same was mentioned in registered conveyance deed and the first floor unit (plaintif) shall not be entitled to have any right of whatsoever nature in respect of excess land allotted to the ground floor unit holders.

29.As per by law No.48 of the Society byelaws:-

If any dispute touching the business of the Society, other than a dispute regarding disciplinary action taken by the Society or its Committee against a paid employee of the Society arises:-

(a) among members, past members and person claiming through members and deceased members, or

(b) between members, past members, person claiming through members, past members or deceased members and the Society, its Committee, or any office, agent or servant of the Society or

(c) between the Society or its Committee and any past Committee, any officer, agent or past servant or the nominee, heirs or legal representatives of the deceased officer, deceased agent or deceased servant of Society ; or

(d) between the Society and any other registered Society; such dispute shall be referred to the Registrar for decision.

30.As per byelaw No.40 of the Society :-

No permanent additions / alterations shall be made by the member owner of the house/flat/dwelling unit including garages and servants quarters except with the written prior sanction of the AWHO and the

Society and the Secunderabad Cantonment/Hyderabad Municipal

Corporation authorities.

31. DW2 stated that they have not amended byelaw No.40 so far.

D2 Society filed suit against one Col.KN.V.V. Vijay Kumar for the unauthorized construction on the Society land and the suit is decreed. His constructions are removed by himself. They have filed some other suits in

Secunderabad court for removal of constructions of some others. DW2 did not see that D1 raised backside compound wall upto the height of 3 ft.

which is obstructing the ventilation of plaintif.

32.DW3 is the Cantonment Board Planner, Secunderabad

Cantonment Board. He observed that D1 has extended the construction on the open area in between the garages on the ground floor and the dimension of room is 10’ x 12’ and the said construction was made without any prior permission from D3 Board. DW3 stated that they are statutory municipal board and they will take action for demolition by following due process of law. In August, 2012 he visited the disputed site. According to his visit, except 10’ x 12’ room, there is no other deviation or illegal construction in respect of dwelling unit of D1. As per visit, the so-called construction of D1 is as per Ex.B19 photographs. In front of the garage, there is no construction. The ingress and egress of first floor is not blocked and it is having free access. DW3 stated that when there is violation within

FSI, the Cantonment Board can regulate the same as per building byelaws. As per Ex.B19, photo, air and light are not blocked to the first floor, DW3 said. He visited the site as it is unauthorized construction. If there is construction on the sluices, drainages and water pipes the same is inconvenient to opposite party, DW3 said. For construction of anything one has to take permission from the Cantonment Board, according to

DW3. If there is no such permission for such construction, it is illegal. In the instant case, such illegal constructions are taken place.

33.Ex.A7 is letter dated 31.5.2011 addressed by plaintif to the

General Secretary, Army Welfare Cooperative Housing Society, Goutam

Enclave, Secunderabad bringing about the dispute between members. The said letter copy is marked to CEO, Secunderabad Cantonment Board. The suit is filed on 13.6.2011. It is admitted by PW1 that after Ex.A7 notice, D3 sent their officials and they have taken measurements. Therefore, it is clear that upon Ex.A7, notice, D3 board officials acted upon. It is said by DW3 from Secunderabad Cantonment Board that when they are about to act upon, the plaintif filed the present suit. Ex.A10 photographs show AC machines put up by D1 and other structures.

34.For the aforementioned reasons, issues No.1 to 3 are held against the 1st defendant.

ADDITIONAL ISSUES NO.1 AND 2 :-

35.Under byelaw No.48, if any dispute touching the business of the Society, other than a dispute regarding disciplinary action taken by the Society or its Committee against a paid employee of the Society arises:-

(a) among members, past members and person claiming through members and deceased members, or

(b) between members, past members, person claiming through members, past members or deceased members and the Society, its Committee, or any office, agent or servant of the Society or

(c) between the Society or its Committee and any past Committee, any officer, agent or past servant or the nominee, heirs or legal representatives of the deceased officer, deceased agent or deceased servant of Society ; or

(d) between the Society and any other registered Society; such dispute shall be referred to the Registrar for decision.

36.According to PW1, the matter was referred to D2 Society and the Society did not refer the same to the Registrar of Societies. PW1 stated that the Society addressed letter dated 4.6.2011 directing the owner of dwelling units No.1 to 3 to remove the construction portions and the extensions. But PW1 did not refer the matter to the Registrar for decision.

PW2 is not aware that some of the members of D2 society approached

Registrar of Societies for their problems. DW1 stated that on 4.6.2011,

Society gave notice to him to remove the construction, declaring the modification as unauthorized modifications. D2 society addressed a letter

dated 4.1.2011 to the plaintif for removal of the unauthorized constructions

of 1st defendant (Ex.A9). Apart from that, the Society filed some other suits in Secunderabad Court for removal of structures of some others vide the evidence of DW2. They have informed all the members that they must obtain permission from the Secunderabad Cantonment Board for making construction.

37.Under Sec. 126 of the Cooperatives Societies Act, 1964, no suit shall be instituted against the Society or any of its officer in respect of any act touching the management or the business of the Society unless notice is delivered to the Registrar of Cooperative Societies. In the present case, no notice was issued by the plaintif to the Registrar of Cooperative

Societies although 2nd defendant is a Army Welfare Cooperative Housing

Society. On this ground, the suit fails.

38.Under Sec. 61 of the AP Cooperatives Societies Act, 1964, if there is any dispute touching the management or business of the Society among the members, such dispute shall be referred only to the Registrar of

Cooperative Society for decision and the jurisdiction of the civil Court is ousted. In the instant case, there is no documentary evidence to the efect that the matter is referred to the Registrar of Societies for decision. On this ground also, the suit fails.

39.Therefore, Additional Issues No.1 and 2 are held against the plaintif.

ISSUE NO.4 :-

40.The next prayer of the plaintif is that Rs.10 Lakhs is to be awarded towards damages for causing great hardship and loss to the business of the plaintif by D1. However, there is no evidence adduced that the plaintif sustained any loss of business. DW1 denied that because he put up the AC machines in the backyard, the tenants are not coming for rent and therefore, he is liable to pay Rs. 10 Lakhs damages to the plaintif.

In the circumstances and as additional issues are held against plaintif, the plaintif is not entitled for damages and issue No.4 is held against the plaintif.

ISSUE NO.5 :-

41.In the result, the suit is dismissed. No costs.

Dictated to Personal Assistant, transcribed and typed by her,

corrected and pronounced by me in the Open Court on this the 28th day of December, 2018.

XXVII Addl. Chief Judge, City Civil Court,Secunderabad.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintif : For Defendants

PW.1 : T.G.K. MahadevDW.1 : J.B.S. Anand PW.2 : K.P. Vijay KumarDW.2 : Col. T. Mahesh Kumar PW.3 : Wg. Commandar (Retd) V.S. Reddy DW.3 : M. Gopala Krishna

Documents marked for the plaintif

Ex.A1 :CC of Conveyance Deed executed by D2 in favour of TS Mahadev TPA dt. 23.4.2004

Ex.A2 :CC of Gift Deed in favour of plaintif by Vikas Sathidev TS Mahadev dt. 6.1.2007

Ex.A3 :CC of Gift Deed in favour of plaintif by Vikas Sathidev dt. 5.6.2008

Ex.A4 :GPA executed by plaintif in favour of his brother TS Mahadev

Ex.A5 :AWCHS Byelaws copy (photostat copy)

Ex.A6 :Copy of complaint with acknowledgment of D2 by plaintif dt. 31.5.2011

Ex.A7 :Copy of complaint with acknowledgment to D3 by plaintif dt. 31.5.2011

Ex.A8 :Suit schedule house plan issued by D2 (Photostate copy)

Ex.A9 :Reply issued by D2 to plaintif dt 4.6.2011

Ex.A10 : Three photographs of plaint schedule with negatives

Documents marked for Defendants

Ex.B1 toPhotographs alongwith CD B6 :

Ex.B7 :Original Notarized GPA dt. 17.3.2016 executed by D1 by appointing his father Major (Retd.) J.B.S.Anand

Ex.B8 :CC of regd. Conveyance Deed bearing Doc.No.661/2004 dt. 16.4.2004

Ex.B9 :CC of regd. Sale Deed bearing Doc.No.1036/2007 dt. 31.05.2007

Ex.B10 : CC of regd. Sale Deed bearing Doc.No.1440/2010 dt. 31.08.2010

Ex.B11 : CC of regd. Rectification Deed bearing Doc.No.855/2016 dt. 28.07.2016

Ex.B12 : CC of regd. Sale Deed bearing Doc.No.600/2004 dt. 15.4.2004

Ex.B13 : CC of regd. Sale Deed bearing Doc.No.1125/2004 dt. 20.4.2004

Ex.B14 : CC of regd. Sale Deed bearing Doc.No.769/2004 dt. 23.4.2004

Ex.B15 : CC of regd. Sale Deed bearing Doc.No.820/2004 dt. 26.4.2004

Ex.B16 : CC of regd. Sale Deed bearing Doc.No.1054/2004 dt. 12.5.2004

Ex.B17 : CC of letter dt. 30.3.2016 issued by D2 to D1

Ex.B18 : CC issued by D2 with regard to enquiry report of Divisional Cooperative Officer, Secunderabad Division, dt.24.11.2015 in

Rc.No.922/2012 Hsg.

Ex.B19 : Photographs (9 Nos.) alongwith CD

XXVII Addl. Chief Judge, City Civil Court, Secunderabad.

IN THE COURT OF THE XXVII ADDL. CHIEF JUDGE,

CITY CIVIL COURT, SECUNDERABAD.

Present : Sri.K. Sreenivasa Rao, XXVII Addl. Chief Judge, City Civil Court, Secunderabad.

DATED THIS THE 17th DAY OF DECEMBER , 2018

A.S. NO. 81 OF 2014

Between:

1. Smt. Abeda Begum

2. Abdul Sayeed

3. M.A. Jaleel--Appellants.

A N D

1. The District Collector

2. The Tahsildar, Musheerabad

3. The Deputy Director Survey & Land Records --Respondents.

On appeal against Judgment and Decree dated 7.7.2014 in

O.S.No.78/2008 on the file of I Junior Civil Judge, City Civil Court,

Secunderabad.

O.S. NO. 78 OF 2008

Between:

1. Smt. Abeda Begum

2. Abdul Sayeed

3. M.A. Jaleel--Plaintiffs.

A N D

1. The District Collector

2. The Tahsildar, Musheerabad

3. The Deputy Director Survey & Land Records --Respondents.

This Appeal is coming before me for final hearing in the presence of Sri G.Balesh, Advocate for the Appellant and of AGP, Advocate for respondents and the matter is comming over for consideration till this day, the court delivered the following :

J U D G M E N T

1. This Appeal is filed against the Judgment and Decree dated 07.07.2014 of I Junior Civil Judge, City Civil Court, Secunderabad in

O.S.No. 78 of 2008 dismissing the suit for declaration and perpetual

injunction.

2. The Appellants are the plaintiffs. According to them, one

Mohd. Abdullah S/o Abdul Khader purchased 6000 sq. Yards in Sy.No.7 (new) and Sy.No.2/1-2 (old) of Musheerabad Village from its original owners by registered sale deed dated 16.10.1956 and possession was delivered to him. Mohd. Abdullah made layout of plots with the permission of Municipal Corporation, Secunderabad, vide permission

No.5284/60, dated 12.9.1960. After the death of said Abdullah, his wife

Smt. Zubedia Begum and other legal heirs sold plot Nos. 13 and 14, admeasuring 895.55 sq. yards to the plaintiffs 1 to 3 and their brother

Abdul Hafeez and Abdul Azeez through registered sale deed dated 4.2.1977. Abdul Azeez execucted registered release deed dated 20.4.2002 in favour of plaintiffs. Abdul Azeez made Hibanama of his share in favour of plaintiff No.3.

3. One Ganesham claiming that he also purchased plots

Nos.13 and 14, filed O.S.1561/1978 in the Court of I Asst. Judge, City

Civil Court, Secunderabad for permanent injunction against the present plaintiffs and the same was dismissed on 21.4.1982 holding that the plaintiff was not in possession of the suit schedule property, against which, Ganesham filed A.S.No.267/1982 on the file of I Addl. Chief

Judge, Secunderabad and the same was dismissed on 3.9.1982.

Ganesh also filed suit O.S.No.1374/1984 for recovery of possession of plots No.13 and 14 and the same was dismissed on 30.6.2001 on the file of III Senior Civil Judge, City Civil Court, Secunderabad. Aggrieved by the same, Ganesh filed CCCA No. 231/2001 on the file of Hon’ble High

Court and a compromise was arrived on 24.11.2004, as per which, the plaintiffs herein got their share 373 sq. yards (suit schedule property) and appellants in CCCA No.231/2001 got 511 sq. yards.

4.While so, a survey was conducted in the year 1974 and notice under Sec. 9 (2) of the AP Survey and Boundaries Act was issued in the name of Umar, S/o Abdullah. Subsequently, Annexure-13 in Form No.33 is issued, which is clearly mentioning the name of Umar son of

Md.Abdullah. On 6.5.2006 a name board was installed in the plaintiffs land stating that “this land is a government land”. The plaintiffs submitted representation dated 9.5.2006 to D1 stating all the facts. But to their surprise in column No. 20 of Town Survey Register, the name of

Md. Abdullah S/o Umar was rounded off and it is mentioned as “G-Abadi and GVM land” and the word GVM land was struck off without any signature, who rounded off the name of Md. Abdullah. In the remarks column, the name of Mohd. Abdullah S/o Umar was mentioned. The entries made in the Town Survey Register are contrary to the entries made in Annexure 13 in Form No. 33 of the year 1774. Even as per the

Annexure in column No.4, the name of the government is not mentioned in

Sy.No.7. Without issuing any notice to Md. Abdullah, those entries are made, which are contrary to the entries made in Sec. 9 (1) and 9(2) notices.

5. Written Statement was filed by D2, Tahsildar, Musheerabad

Mandal stating that the suit schedule property was identified on the ground and found that it is existing in T.S.No.1, 2 Block-H, Ward No.148 of Zamistanpur Village, Musheerabad Mandal. As per TSLR records, the

TS Nos.1, 2 Block-H, Ward No.148 admeasuring 463 sq.yards and 276 sq. meters situated in Zamistanpur Village and recorded in Col.No.20 as ‘G’ Abadi and government road. The State Government of Andhra

Pradesh is the absolute owner and possessor of the suit property.

6. The Collector, Hyderabad vide Lr.No.C3/5917/17/2007 has issued orders to allot the above said government land to the Housing

Board, Hyderabad for construction of school building. Accordingly, notification has been published by D2 office calling for objections. When the matter stood thus, the above suit has been filed by the plaintiff.

7. As per the Town Survey and Land Register copy, the suit schedule property is showed in Col.No.10 of Revenue Register as “Abadi” as well as in the column No.20, name of the present enjoyer, showed as “Govt Abadi” which clearly goes to prove that the suit schedule property is a government land and the plaintiffs have no manner of right, title over the suit schedule property.

8. The suit property is a government land, which is vacant on ground. AS there is every chance to encroach the valuable government vacant lands, therefore, D2 with the help of the staff, erected sign board indicating that his property belongs to government 2 years back itself.

9. During the time of town survey conducted by the A.P. Land

Survey Department in the year 1964-71, the Surveying Officer during his course of survey land, the suit schedule property was found that its existing in T.S. No.1, 2, Block-H, Ward 148 fo Zamistanpur Village,

Musheerabad Mandal, Hyderabad District, as government land i.e.,

G.Abadi and the said piece of land is a suit schedule land encroached by one Omer S/o Mohd. Abdullah, the same was recorded in Col No.23, i.e.

remarks column of Town Survey Land Register. Originally, the said Omer

S/o Mohd. Abdullah, has made layout of his land in Survey No.7 of

Musheerabad (V) which is border boundary of Zamistanpur (V). The said boundary land of Zamistanpur Village is government land, the same is suit schedule property and the said land is not in Sy.No.7 of the

Musheerabad Village, as alleged by the plaintiff. The said Mohd. Omer

S/o Abdullah, tactfully converted / encroached the schedule land by way of encroachment, which is exclusively government land, shown as “G-

Abadi” in TSLR. The suit schedule property is a government land and defendants have authority to use the land for the general public. The suit is bad for want of Sec. 80 CPC notice.

10. Basing on the pleadings, the following issues are settled by the Trial Court:

1. Whether the suit is maintainable?

2. Whether the plaintiffs are entitled for a declaration of alter or cancel the entry made under Column No.20 of Town Survey Register inserting G-Abadi by rounding off the name of Mohd. Abdullah, S/o Umar, without any authority or mentioning any proceedings number, date and signature of the officer, who rounded off the said name and restore the same?

3. Whether the plaintiffs are entitled for a permanent injunciton restraining the defendants from interfering with the plaint schedule property?

4. To what relief?

11. During the course of trial, the trial Court examined PWs.1 to 3 and Exs.A1 to A15(a) were marked on behalf of the plaintiffs. DW.1 was examined and Exs.B1 to B3 were marked on behalf of the defendants.

Ultimately the suit was dismissed by the trial Court, aggrieved by which, the present appeal is filed.

12. Heard the arguments. Written Arguments are filed on behalf of both the parties.

13. The points for consideration are :-

1. Whether the plaintiffs are entitled for alteration and cancellation of the entry made under Column No.20 of Town Survey Register inserting G-Abadi by rounding off the name of Mohd. Abdullah, S/o

Umar, without any authority or mentioning any proceedings number, date and signature of the officer, who rounded off the said name and restore the same?

2. Whether the plaintiffs are entitled for perpetual injunction restraining the defendants from interfering with the suit schedule property?

3. To what relief?

POINT NO.1 : -

14. PW1 is 2nd plaintiff. He said that originally one Md. Abdul

Khader pruchased 6000 sq. yards in Sy.No.7 p(new) and Sy.No.2/1-2 (old) of Musheerabad Village by virtue of Ex.A1, regisstered sale deed of 1956. The said Md. Adbullah made layout of the plots with the permission of Municipal Corporation, Secunderabad vide permission No.

5284/60 dated 12.9.1960. After the death of Md. Abdullah, his wife

Zubedia Begum and other legal heirs sold plots No.13 and 14, admeasuring 895.55 sq. yards to plaintiffs 1 to 3 and their brothers Abdul

Hafeez and Abdul Azeez by virtue of Ex.A2 registered sale deed dated 4.2.1977. By virtue of E.A3 Release Deed dated 20.04.2002, Abudul

Hafeez released his share in favour of plaintiffs. Abudl Azeez made

Hibanama to his share in favour of 3rd plaintiff.

15. While so, one Ganesham claiming that he also purchased plot No.13 and 14, filed O.S.No.1561/1978 on the file of I Asst. Chief

Judge, City Civil Court, Secunderabad against the plaintiffs herein and

the same was dismissed 21.04.1982. Ganesham also filed appeal in

A.S.No.267/1982 on the file of I Addl. Chief Judge and it was dismissed

on 3.9.1982. Ganesham also filed O.S.No.1374/1984 for recovery of possession of plots 13 and 14 purchased by the plaintiffs herein and their brothers. The said suit was dismissed vide Ex.A7, Judgment in

O.S.No.1374/1984 dated 30.06.2001 on the file of III Senior Civil Judge,

City Civil Court, Secunderabad, aggrieved by which, Ganesh filed CCCA

No. 231/2001 on the file of the Hon’ble High Court and the same was compromised on 24.11.2004, by virtue of which, the plaintiffs got their share 373 sq. yards and appellants in CCCA No. 231/2001 got 511 sq.

yards. As per the said compromise, the plaintiffs herein and the

Ganesham demarcated their land and fixed boundaries and they are in physical possession and enjoyment of their respective lands. According to the plaintiffs, a survey was conducted in the year 1974. Notice under

Sec.9(2) of the AP Survey and Boundaries Act was issued in the name of

Umar, S/o Md. Abdullah. Subsequently, Annexure-13 in Form No.33 is issued, which is clearly mentioning the name of Umar, son of

Md.Abdullah. Ex.A5 is notice under Sec.9(2) dated 31.5.1974. Ex.A6 is

Annexure 13 in Form No. 33 dated 31.5.1974.

16. While so, the plaintiffs noticed that a name board was erected on 6.5.2006 in the suit land stating that it is a government land.

The plaintiffs submtited a representation dated 9.5.2006 to 1st defendant stating all the facts. But to their surprise, in column No.20 of the Town

Survey Register, the name of Md. Abdullah, S/o Umer was rounded off and in that place it is written as “G-Abadi” and “GVM land”. Again the word “GVM land” was struck off without any proceedings number, date and designation of the officer, who made the same.

17. The contention of the defendants is that suit schedule property is not situated in Musheerabad, but it is in Zamisthanpur.

According to them, As per the Town Survey and Land Register copy, the suit schedule property is showed in Col.No.10 of Revenue Register as “Abadi” as well as in the column No.20, name of the present enjoyer, showed as “Govt Abadi” which clearly goes to prove that the suit schedule property is a government land and the plaintiffs have no manner of right, title over the suit schedule property.

18. The suit property is a government land, which is vacant on ground. There is every chance to encroach the valuable government vacant lands, therefore, D2 with the help of the staff, erected sign board indicating that this property belongs to government 2 years back itself.

19. During the time of town survey conducted by the A.P. Land

Survey Department in the year 1964-71, the Surveying Officer during his course of survey land, the suit schedule property was found that its existing in T.S. No.1, 2, Block-H, Ward 148 fo Zamistanpur Village,

Musheerabad Mandal, Hyderabad District as government land i.e.,

G.Abadi and the said piece of land is a suit schedule land encroached by one Omer S/o Mohd. Abdullah, the same was recorded in Col No.23, i.e.

remarks column of Town Survey Land Register. Originally, the said Omer

S/o Mohd. Abdullah, has made layout of his land in Survey No.7 of

Musheerabad (V) which is border boundary of Zamistanpur (V), the said boundary land of Zamistanpur Village is government land, the same is suit schedule property and the said land is not in Sy.No.7 of the

Musheerabad Village, as alleged by the plaintiff. The said Mohd. Omer

S/o Abdullah, tactfully converted / encroached the schedule land by way of encroachment, which is exclusively government land, shown as “G-

Abadi” in TSLR. The suit schedule property is a government land and defendants have authority to use the land for the general public.

20. According to PW1, in the year 1979, he obtained permission from Municipal Corporation, Secunderabad to construct a compound wall and a room vide Ex.A11, MCH permision for construction of compound wall and a room. As per Ex.A10, Town Survey Register extract, the name of Md. Abdullah S/o Umar was written off/ rounded off and in red ink, there is mention as “G-Abadi” and “GVM land”. Again the word “GVM land” was struck off in red ink. As per PW1, in the year 2006, the government put up a board that the land belongs to government. PW1 issued notice in that aspect, but, there is no reply.

21. There is no dispute that Ex.A10 Town Survey Register,

Column 20 does not bear any authority or proceedings number or date or signature of the Officer, who rounded off the name of Md. Abdullah, S/o

Umar. With regard to this aspect, there are clear admissions made by

DW1, who is Tahsildar, Musheerabad Mandal. He only reiterated in the evidence that suit schedule property is a government land. As per DW1, based on the revenue records and survey conducted by the survey authority, TSLR records have been prepared. DW1 admitted that if any changes are required to be made in the revenue records, there shall be necessary proceedings incorporating the designation of the Officer with signature and date. DW1, however, stated that in Hyderabad district there is no such procedure. There is no explanation why Hyderabad is exempted from the procedure prescribed. DW1 did not verify whether column No.7 of Ex.A10 Abadi tallies with the entries made in the revenue record such as pahanies, kasra pahanies, sethwars. DW1 did not verify the entries made in column No.10 of Ex.A10 Town Survey

Register dated 15.5.2007 with plan. DW1 admitted that in T.S.No.8 there is mention of 7/P and Musheerabad vide Ex.A15(a), Hyderabad District

Town Survey Register Ward No.148. DW1 admitted that at column No.20 of TS No.7, there is mention “G” electric substation and substation, and name of the village is mentioned as Musheerabad.

22. DW1 admitted that the name of Abdullah, S/o Umar was rounded off and written “GVM land” which is again struck off and written as “G-Abadi” in column No.20 of Ex.A14 Town Survey Land Register. As per DW1, the inspector, SLR, Hyderabad is competent person to explain why the name of Abdullah, S/o Umar was not rounded off in Column

No.23 of Ex.A10 Town Survey Register. But the respondents / defendants did not examine the said competent witness.

23. PWs 2 and 3 were examined in support of the plaintiffs’ case.

24. Thus, the fact remains that Ex.A10, Column 20 is without any mention of authority or proceedings number or date or signature of the Officer, who rounded off the name of Mohd. Abdullah, S/o Umar.

Therefore, to this extent, the appellants / plaintiffs are entiteld for the relief. The appeal shall be allowed to the extent that the above mentioned entry in Column No.20 in Ex.A10 shall be cancelled.

25. DW1 did not file pahani for the year 1964-65 alongwith

Naksa of 1358 Fasli. DW1 stated that the contents of Ex.A13 kasra pahani for the year 1954-55 belong to Musheerabad Mandal Village whereas the suit schedule property falls in Zamisthanpur. If the suit schedule property falls in Zamistanpur but not Musheerabad, then respondents / defendants shall take out the necessary proceedings by issuing notice to the appellants / plaintiffs. They cannot unilaterally round off the name of Mohd. Abdullah, S/o Umar in Ex.A10, Column No.20 and make their own entries, without the knowledge of the appellants / plaintiffs herein. There is no evidence at all whether any notice was issued to the appellants/ plaintiffs before rounding off the name of Mohd. Abdullah, S/o

Umar in Ex.A10, Column No.20.

26. As regards Sec.80 CPC Notice, the plaintiffs got issued

Ex.A9 Notice to the District Collector, Hyderabad with regard to subject matter. That can be treated as Sec.80 CPC Notice to the Government

Authorities. Hence, the suit is not bad on that ground.

27. In view of the aforementioned discussion, appeal is partly allowed to the extent that entry made under Column No.20 of Town

Survey Register inserting G-Abadi by rounding off the name of Md.

Abdullah, S/o Umar, without any authority or mentioning any proceedings number, date and signature of the Officer, who rounded off the name of

Md. Abdullah, S/o Umar, is cancelled and restored. Point No.1 is accordingly found in favour of the appellants/plaintiffs.

POINT NO.2 :-

28. PW2 stated that the suit schedule property is under the physical possession of the government. PW3 stated that the suit schedule property at present is in the name of government and there is a sign board that the property belongs to the government. When the possession is not with the plaintiffs/ appellants, they are not entitled for permanent injunction. Therefore, this point is held against the appellants / plaintiffs.

POINT NO.3 :-

29. In the result, appeal is partly allowed to the extent that entry made under Column No.20 of Town Survey Register inserting G-Abadi by rounding off the name of Md. Abdullah, S/o Umar, without any authority or mentioning any proceedings number, date and signature of the Officer, who rounded off the name of Md. Abdullah S/o Umer, is cancelled and restored.

30. The appeal is dismissed in respect of perpetual injunction relief.

31. Each party shall bear their own costs.

Dictated to Stenographer, transcribed by her, corrected and

pronounced by me in the open court, on this the 17th day of December,

2018.

XXVII Addl. Chief Judge, City Civil Court, Secunderabad.

APPENDIX OF EVIDENCE

NIL.

XXVII Addl. Chief Judge, City Civil Court: Secunderabad.

The suit can be partly allowed to the extent mentioned above. However, the appellants / plaintiffs utterly failed to issue Sec. 80 CPC notice to the respondent before instituting the suit. Filing of petition under Sec. 80(2)

CPC on 18.2.2008 is only for the limited purpose of numbering the suit.

But it does not work out to the entire suit. Under Sec.80(2) CPC, the

Court shall not grant relief in the suit whether interim or otherwise except after giving two months prior notice to the government. Not only the plaint shall contain statment that notice was issued to the government. In the instant case they are lacking. Therefore, the suit is bad for want of Sec.

80 CPC notice. The trial Court didn ot given any finding regarding

Sec.80 (2) CPC notice. It simply mentioned that in view of urgency of the matter, the suit was numbered. It is mentioned by the trial Court wrongly that the defendants are not disputing about the maintainability of the suit, irrespective of the clear pleading by the defendant that the plaintiff has not followed the mandatory provisions of Sec.80 CPC and has not issued any prior notice before filing of the suit. Hence, the suit is liable to be dismissed.

In view of the aforementioned discussion, the suit as well as the appeal fails.

In the result, the appeal is dismissed.

IN THE COURT OF THE XXVII ADDITIONAL CHIEF JUDGE,

CITY CIVIL COURT: SECUNDERABAD.

Present : Sri.K. Sreenivasa Rao, XXVII Addl. Chief Judge, City Civil Court, Secunderabad.

DATED THIS THE 13th DAY OF DECEMBER, 2018.

O.S. NO. 8 OF 2016

Between:

Gaddam Papaiah Yadav--Plaintif

A N D

1) Gaddam Srinivas Yadav

2) Gaddam Anand Yadav

3) Gaddam Sekhar Yadav --Defendants

This suit is coming on this day before me for final hearing in the presence of Sri M.V.B. Sriram Murthy, Advocate for the plaintif and of Sri R.Ranganathan, Advocate for defendants No.2 & 3 and defendant No.1 remained ex parte and the matter having been heard and stood over till this day for consideration, this Court delivered the following :

// JUDGMENT //

1.This suit is filed for specific performance, directing the defendants to execute the sale deed in favour of plaintif in respect of suit schedule property and for delivery of possession of the suit schedule property after evicting the defendants or alternatively for Rs.20 lakhs to the plaintif.

2.According to the plaintif, there is a joint family property of both parties 2 acres in Sy.No.1, Sitarampur Vilalge, Bowenpally, Secunderabad

Cantonment. O.S.No.368/1985 was filed before the III Addl. Civil Judge, City

Civil Court, Secunderabad claiming 1/4th share to each party and the said suit was decreed on 8.4.1991. One of the parties filed CCCA No.84/1992

before the Hon’ble High Court and the same was dismissed on 28.4.2004.

Against the said dismissal, SLP 25310/2004 was filed before the Hon’ble

Supreme Court and the same was dismissed on 7.8.2006. Thereafter, the trial Court passed final decree on 15.2.2007 and the same was confirmed on 24.9.2007.

3.The defendants and their father requested the plaintif that they are not having money to spend for litigation and asked the plaintif to bear the expenditure for entire litigation and agreed to pay Rs.

20 Lakhs to the plaintif within 4 months of taking possession of their property through Court. It was agreed that in the case of failure, the defendants would execute a registered sale deed for 250 sq. yards from their share to the plaintif without any protest.

4.The parties to the partition suit were given possession of their shares on 19.1.2012 . Since the defendants are cousins of plaintif, no coercive steps were taken on Agreement of Sale dated 16.9.2009 for its execution. In the meanwhile, the first vendor Gaddam Veeraiah i.e.

defendants father died on 16.2.2015. Plaintif demanded defendants and Gaddam Veeraiah to pay Rs. 20 Lakhs after executing the registered sale deed as agreed, but in vain. When the plaintif demanded to renew the agreement of sale dated 16.9.2009, except D1, others refused to do so. First defendant executed a Supplementary Agreement of Sale dated 8.4.2015 stating that the vendors are liable to pay Rs.20 Lakhs or to execute a registered sale deed for 250 sq. yards in favour of plaintif.

Inspite of that, there is no action by the defendants. Hence, the suit.

5. Written Statement was filed by D3 and the same was adopted by D2. D1 remained ex parte. According to D3, it is true that there was an Agreement dated 16.9.2009 agreeing to pay Rs. 20 Lakhs within 4 months of taking possession of the shares by the respective parties, and in the event of failure, a registered sale deed would be executed in favour of plaintif to the extent of suit property. It is true that possession of shares of the parties was taken on 20.4.2007 and within a stipulated period of 4 months, Rs.20 Lakhs was cleared to the plaintif during the lifetime of father of defendants. Due to the relationship between the parties, no document was obtained by the defendants for the payment of the amount. Since the plaintif did not proceed further pursuant to Agreement of Sale dated 16.9.2009 having received the entire due amount from the defendants, the defendants were under the impression that the plaintif has kept up his promise.

6.In order to create limitation to file the suit, as the limitation expired long ago, the plaintif colluded with D2 and clandestinely obtained Supplementary Agreement dated 8.4.2015 signed only by D1. D2 and D3 did not join the Supplementary Agreement. Infact the first defendant is a chronic alcoholic and not in perfect mental condition. The first defendant does not know what kind of document, he was executing. The relief of specific performance is an equitable form of relief and one who sleep over the matter is not entitled for such relief.

Moreover, the suit is not maintainable for want of mandatory notice under

Sec. 16 (c) of the Specific Relief Act.

7. Basing on the above pleadings, the following issues are settled for trial :-

1)Whether the plaintif is entitled for specific performance of conditional Agreement of Sale dated 16.9.2009 and

Supplementary Agreement of Sale dated 08.04.2015, as prayed ?

2)Whether the plaintif is entitled for alternative relief of

Rs.20 Lakhs as prayed ?

3)Whether the suit is barred by limitation?

4)To what relief?

8. On behalf of plaintif, PW1 and PW2 were examined and

Exs.A1 and A2 were marked on behalf of the defendants, DW1 and DW2 were examined.

9. Head arguments.

ISSUE NO.1 AND 3 :-

10. PW1 is plaintif. there is a joint family property of both parties 2 acres in Sy.No.1, Sitarampur Vilalge, Bowenpally,

Secunderabad Cantonment. O.S.No.368/1985 was filed before the III

Addl. Civil Judge, City Civil Court, Secunderabad claiming 1/4th share to each party and the said suit was decreed on 8.4.1991. One of the parties filed CCCA No.84/1992 before the Hon’ble High Court and the same was dismissed on 28.4.2004. Against the said dismissal, SLP 25310/2004 was filed before the Hon’ble Supreme Court and the same was dismissed on 7.8.2006. Thereafter, the trial Court passed final decree on 15.2.2007 and the same was confirmed on 24.9.2007.

11. The defendants and their father requested the plaintif that they are not having money to spend for litigation and asked the plaintif to bear the expenditure for entire litigation and agreed to pay Rs. 20 Lakhs to the plaintif within 4 months of taking possession of their property through Court. It was agreed that in the case of failure, the defendants would execute a registered sale deed for 250 sq. yards from their share to the plaintif without any protest.

12. PW1 also stated that the parties to the partition suit were given possession of their shares on 19.1.2012. Since the defendants are cousins of plaintif, no coercive steps were taken on Agreement of Sale

dated 16.9.2009 for its execution. In the meanwhile, the first vendor

Gaddam Veeraiah i.e. defendants father died on 16.2.2015. Plaintif demanded defendants and Gaddam Veeraiah to pay Rs. 20 Lakhs after executing the registered sale deed as agreed, but in vain. When the plaintif demanded to renew the agreement of sale dated 16.9.2009, except D1, others refused to do so. First defendant executed a

Supplementary Agreement of Sale dated 8.4.2015 stating that the vendors are liable to pay Rs.20 Lakhs or to execute a registered sale deed for 250 sq. yards in favour of plaintif. Inspite of that, there is no action by the defendants.

13. According to him, Ex.A1 is Conditional Agreement of Sale

dated 16.9.2009. According to PW1, the suit is of 1985 and eversince

then, he has been incurring expenditure in the case. But, PW1 did not file any document or statement to show that he incurred expenditure. He is unable to say the advocate fee and court fee paid by him even approximately. As a matter of fact, he does not know the contents of his evidence affidavit, which is prepared by his advocate. He simply signed the chief examination affidavit. PW1 did not send any notice to the defendants demanding dues of Rs. 20 Lakhs. Under Sec.16(c) of the

Specific Relief Act, 1963, there must be notice by the plaintif that he performed his part of contract and demanding the performance of the opposite party. In the instant case, there is no such notice. The oral demands of PW1 during the year 2012, 2013 and 2014 to Veeraiah, father of defendants, do not inspire the confidence of the Court.

Admittedly, Veeraiah is an illiterate person. PW1 admitted that during the whole lifetime of Veeraiah, he did not issue any notice nor did he file any suit against Veeraiah.

14. PW2 stated that he knew all the parties. According to him, the defendants and their father requested PW1 to bear the expenditure and agreed to pay Rs. 20 Lakhs after taking possession of the land. He spoke that there are Agreement and Supplementary Agreement between the parties.

15. DW1 admitted that his father informed father of plaintif by name Laxmaiah to meet the legal expenses due to lack of money with him. DW1 stated that Rs.20 Lakhs was spent towards the legal expenses towards the share of his father. There is no dispute regarding Ex.A1,

Agreement dated 16.9.2009 in favour of plaintif. DW1 admitted that there is no mention in Ex.A1 that in case the amount is not paid within 4 months of taking possession of share of land, sale deed will be registered. Although, a stand was taken by defendants in the pleadings that they paid the Rs.20 Lakhs to the plaintif, DW1 did not file any receipt to prove that they paid entire amount to the plaintif.

16. But in so far as Ex.A2 Supplementary Agreement dated 8.4.2015 is concerned, there is dispute which is relevant to decide the limitation aspect. Admittedly, Ex.A2 was not executed by all the defendants, except by D1, who is a chronic alcoholic. DW2 (D1) admitted that they executed Ex.A1 Agreement. However, according to him, they sold one plot and repaid the amount to plaintif already and the plot was sold by his father to one Sridhar. It is true that DW1 (D1) remained exparte in the suit and there is no document filed evidencing the payment of Rs. 20 Lakhs to plaintif. Ex.A2 Supplementary Agreement was not confronted to DW2, who executed the document in his cross examination, on the part of plaintif.

17. PW1 himself purchased the stamp paper for Ex.A2,

Supplementary Agreement of Sale. PW1 himself got prepared the

Supplement Agreement at the Registrar office by a document writer. The question is whether in the absence of the parties to the document (Ex.A2) such document is valid in the eye of law? The answer is “No”. Because

DW1 being a chronic alcoholic, his signature was obtained successfully by the plaintif on Ex.A2 and there are no signatures of other defendants on Ex.A2 Supplementary Agreement of Sale. When there are no signatures of other defendants on Ex.A2, the same is not binding upon them.

18. Admittedly, the possession of land was taken on 19.1.2012.

As per recitals of Ex.A2 Supplementary Agreement, within 4 months thereafter either amount shall be repaid or 250 sq. yards shall be registered in the name of plaintif. There is no proof of payment of Rs. 20

Lakhs to the plaintif by the defendants. The 4 months period would come to an end by 19.5.2012. Therefore, the date fixed for the performance of the contract is 19.5.2012. Under Art. 54 of the Limitation

Act, 1963, the period of limitation is 3 years for specific performance of contract and the time begins to run from the date fixed for the performance. The 3 years period would come to end by 19.5.2015. But the suit is filed on 7.1.2016 i.e. beyond the period of limitation.

19. It is contended by the learned counsel for defendants that under Sec. 23 of the Indian Contract Act, 1872, sponsoring the litigation is against the public policy and the suit is bad on that ground also here the learned defendants’ counsel cited in Ratanchand Hirachand v.

Askar Nawaz Jung and others (1976) AIR AP 112) of the Hon’ble

High of AP, the relevant para of which is extracted hereunder:

“Even so, the learned counsel for the appellant argued that the plaintif was entitled to a return of all the amounts advanced by him with interest. He relied upon the decisions in Hussain

Baksh v. Rahmat Hussain, ILR (1889) 11 All 128 and

Venkataswamy v. Nagi Reddy, AIR 1962 AP 457. Both were cases of champerty. Both were cases where the agreements were held to be extortionate and unconscionable. In both cases the amounts actually advanced were directed to be refunded. The law is well settled in India that Champertous agreements are not as such opposed to public policy. They will not be enforced if they are extortionate and unconscionable in which the persons advancing the monies will be entitled to get a return of the same. In the present case, we are not concerned with a plain and simple champertous agreement.

The object of the agreement was to influence Ministers and to incur necessary expenditure in connection therewith. There were no two independent agreements one for influencing the

Ministers and the other for advancing monies. The agreement was one whole agreement and if it could not be enforced in part it could not be enforced as a whole. The whole of the agreement was tainted by the vice of being opposed to public policy.”

20. The learned defendants’ counsel further cited in Babu Ram

v. Ram Charan Lal and another ( (1934) AIR (Allahabad) 1023)

wherein it is held as under :

“An agreement to supply funds to carry on a suit in consideration of having a share in the property, if recovered, is not necessarily opposed to public policy, since cases may easily be supposed in which it would be in furtherance of right and justice that a suitor who had a just title to property, and no means to support it, should be assisted in this way. But agreements purporting to be made to meet such cases, when found to be extortionate and unconscionable, so as to be inequitable, or to be entered into for improper objects, as for the purpose of gambling in litigation, or of injuring others by encouraging unrighteous suits, are contrary to public policy, and ought not to have efect given to them.”

21. It is clear from the above rulings that the agreements to be extortionate and unconscionable are not valid in the eye of law. Ex.A1

Agreement is such a document.

22. In view of the aforementioned discussion, issue No.1 and 3 are held against the plaintif.

ISSUE NO.2 :-

23. Alternatively, the plaintif is not entitled for Rs.20 Lakhs as prayed. Issue No.2 is held against the plaintif.

ISSUE NO.4 :-

24. In the result, the suit is dismissed. No costs.

Dictated to Personal Assistant, transcribed and typed by her,

corrected and pronounced by me in the Open Court on this the 13th day of December, 2018.

XXVII Addl. Chief Judge, City Civil Court,Secunderabad.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintif : For Defendants :

PW.1 : Gaddam PapaiahDW.1 : Gaddam Shekar Yadav PW.2 : K. Krishna ReddyDW.2 : Gaddam Srinivas Yadav

Documents marked for the plaintif

Ex.A1 is Conditional Agreement of Sale dated 16.9.2009

Ex.A2 is Supplementary Agreement of Sale dated 8.4.2015

Documents marked for Defendants

XXVII Addl. Chief Judge, City Civil Court, Secunderabad.

1

IN THE COURT OF I ADDL. CHIEF METROPOLITAN

MAGISTRATE : HYDERABAD

Present : Sri K. Sreenivasa Rao, I Addl.Chief Metropolitan Magistrate Hyderabad.

Dated this the 31st day of October, 2014

C.C. No. 532 of 2011

Between: The State rep. by S.I. of Police, PS Saifabad, Hyderabad

…..Complainant

And

Sandeep Raul S/o Late Shyam Kanthi Raul, Aged: 29 years, R/o H.No. 14-2-391, Razak Pura, Lane Beside Paan Mandi, Hyderabad. Presently R/o Plot NO. 26, Transport Road, Near Diamond Point, Kharkhana, Secunderabad. ….Accused

This case is coming before me for final hearing in the presenceofAPPfortheprosecutionand M/s L. Srinivas Rao, Counsel for the accused and after having stood over for consideration till this day, the court delivered the following:

J U D G M E N T

1.The accused was charged in Crime No. 368/2010 under sections 468, 471 and 420 IPC basing on the complaint of

Lw.1 Aijaz Ur Rahman. According to the prosecution, on 17.02.2009 the Operation Manager of Secure Forex Private

Limited, Saifabad received a phone call that one person Gyaara

Shekar stating that he required 2000 US dollars. For the said transaction he called their Operation Manager to Tirmulgherry,

Secunderabad and there the Manager taken the Demand Draft 2 bearing No. 422091 for Rs. 99,084/- drawn on State Bank of

India, Thirumalgiri, Hyderabad and Visa copy, ticket copy, passport copy. Thereafter, the said person was asked to wait for 15 minutes for verification of the Demand Draft in the bank.

Thereafter, the said person went away stating that there was a meeting to him and that he would inform them for delivery of currency. On the same day evening he called and asked them to come to Banjara Hills for delivery of currency. There the

Executive handed-over the currency to Gyaara Shekar. But when the Demand Draft was presented in the bank, it came to know that it is a forged DD. Thus, the said person cheated him by submitting forged DD and false documents.

2.During the course of investigation, on 18.06.2010 Lw.3

V. Purushotham, Branch Manager, State Bank of India,

Thirumalgiri, Hyderabad received information that the accused was arrested by CCS police, Hyderabad in Crime No. 131/2010

U/sec. 379 IPC and he was remanded to judicial custody.

Through the confession, it came to know that the accused is responsible for the present crime also. On P.T. warrant accused was taken into judicial custody in this case. Thus the facts established that the accused introduced himself to Lw.2 Shaik

Rehman, Operation Manager of Secure Forex Private Limited as

Gyaara Shekar and requested to provide 2000 US dollars by giving Indian currency by stating that he is going to US 3 immediately and later the accused fabricated DD for Rs. 99,084/- drawn on State Bank of India, Thirumalgiri, Secunderabad,

Hyderabad and gave to Lw.2 Shaik Rehman although it is only for a sum of Rs. 99/-.

3.This case was taken on file U/s.468, 471 and 420 IPC against the accused.

4.Copies of documents were furnished to the accused

U/s.207 Cr.P.C.

5.The accused was examined U/s.239 Cr.P.C. in which he denied the allegations. Charges U/s. 468, 471 and 420 IPC were framed, read over and explained to the accused, for which he pleaded not guilty and claimed for trial.

6.On behalf of the prosecution PW’s 1 to Pw.4 were examined and EXs.P1 to Ex.P4 were marked.

7.The accused was examined under Section 313 Cr.P.C.

in which he denied the incriminating evidence. He reported no defence witnesses.

8.Heard arguments.

9.The point for determination is whether the prosecution could establish the guilt of the accused beyond all reasonable doubt?

4

10.Pw.1 is the complainant. He is the Finance Manager of

M/s Secure Forex Private Limited, Saifabad, Hyderabad. On 17.02.2009 Lw.2 Shaik Rehman, Operation Manager (examined as Pw.2) received a phone call from Gyaara Shekar stating that he required 2,000 US dollars, for which Pw.2 quoted the price.

For that transaction, the said person called Pw.2 to Thirumalgiri,

Secunderabad. Executive of the Secure Forex Private Limited was sent there. According to Pw.1, Gyaara Shekar gave the passport copy, Visa copy to their Sales Executive (Pw.2) and handed-over

D.D. for Rs. 99,084/-. It is deposed by Pw.1 that they told the accused person to verify the DD issue bank i.e. Tirumalgiri, S.B.I.

After enquiry with the bank they handed-over the currency to the accused. Their Executive went to the bank and confirmed that

DD was issued by that branch. Later, the accused called on their office. Their Executive came down to the office and handed-over the currency to the accused at Banjara Hills where the accused was called upon. Next day when the DD was sent for clearance in

ABN Amro bank, BAnjara Hills, they came to know that the DD was forged one. The prosecution got marked Ex.P2 Bankers cheque in this connection. According to Pw.1, the accused did not tell his actual name. As per the name in the passport, they have issued the currency to the accused and performed the transaction. Thus, the accused cheated them in the name of

Gyaara Shekar. Ex.P1 is the complaint lodged by Pw.1 on 5 15.06.2010.

11.It is clearly mentioned in Ex.P1 that Pw.1 is working as

Manager Finance in Secure Forex Private Limited located at

Saifabad, Hyderabad at the address bearing No. 6-1-57, Nasar

Arcade, beside R.B.I., Saifabad, Hyderabad. In the evidence also

Pw.1 testified that he is working as Finance Manager in the said company. Pw.2 also spoke about the employment of Pw.1 in the said office. Therefore, it is not correct that Pw.1 is not the authorized person to file Ex.P1 complaint or to depose in the

Court, as contended in the cross-examination of Pw.1 on behalf of the accused. It is true that generally the company of complainant ask the customers to come to their office and collect the currency. No customer will know about the dollar rate and on their intimation only, they would come to know dollar rate.

12.Pw.2 who is working as Operation Manager of Secure

Forex Private Limited also corroborated the evidence o,f Pw.1. On 17.02.2009 he received a phone call in the name of Gyaara

Shekar to bring 2000 US dollars stating that he would pay the amount through DD. As per Pw.2, the said person prepared the draft from S.B.I., Thirumalgiri Branch only for Rs. 99/- although he has to prepare the draft for Rs. 99,084/-. It is seen from Pw.2 also, that the said person stated that he has some meeting and deliver the currency in the evening. In the evening, the said 6 person called them to Banjara Hills near ABN Amro bank where they have delivered the currency 2000 US dollars to him, for which he has given a D.D. for Rs. 99,084/-. But when they presented the said DD in the bank, they understood that actually the DD was only for Rs. 99/-, but not for Rs. 99,084/- and that the said person cheated them by giving DD for Rs. 99/- instead of

Rs. 99,084/-. From the bank officials, the Secure Forex Private

Limited company came to know that the accused cheated and he forged the DD. It is seen from Pw.2 that they have showed the

Ex.P2 in the bank, but the banker has checked only the draft and not the amount. Pw.2 denied that they have not delivered any currency to the accused. He also denied that the accused never called them and he never wanted the currency and he never received any currency from them.

13.Pw.3 is the Assistant Manager of State Bank of India,

Thirumalgiri at the relevant time. It is seen from him that on 17.02.2009 Ex.P2 bankers cheque bearing No. 422091 was issued for Rs. 99/- in favour of Secure Forex Private Limited from their branch. On 18.07.2011 police came to them and enquired them and on that Pw.3 verified the bank registers and informed the police that they have issued Ex.P2 bankers cheque for Rs.

99/- only. Pw.3 also issued Ex.P3 Statement to the police. It is made clear by Pw.3 that actually they have issued Ex.P2 bankers cheque for Rs. 99/- only, but it was later manipulated to Rs.

7 99,084/ by adding figures and words in Ex.P2 bankers cheque. A bare look of Ex.P2 bankers cheque clinchingly establish that the figures ‘084’ were added after figures ‘99’ in the cheque. Even for the words also regarding amount, after ‘ninety nine’ only, the word ‘only’ was altered to ‘thousand’ followed by the addition of words ‘eighty four only’. Thus, Ex.P2 bankers cheque was altered materially both in words and figures. Pw.3 does not know who has prepared Ex.P2 bankers cheque in the year 2009. Whoever prepared Ex.P2 bankers cheque for Rs. 99/- it was established beyond all reasonable doubt that it was manipulated by no other than the accused person from Rs. 99/- to Rs. 99,084/-. There is no need to send Ex.P2 bankers cheque for expert opinion, as suggested to the Investigating Officer (Pw.4) on behalf of the accused. Even though Pw.4 did not examine the bank employee who issued Ex.P2 bankers cheque, it is seen from the bank official (Pw.3) that they have issued Ex.P2 bankers cheque for Rs.

99/-, but not for Rs. 99,084/-. A bare look at Ex.P2 bankers cheque clearly establishes that that it was altered from Rs. 99/- to Rs. 99,084/- not only in figures, but also in words. There is no requirement of any expert opinion.

14.As regards the identity of the accused, it is clearly deposed by Pw.1 that the accused called on their office and their

Executive came down to the office and handed-over the currency to the accused at Banjara Hills where the accused was called 8 upon. Therefore, there is no need to give the descriptive particulars of the accused to the police by Pw.1 or Pw.2. Further

Pw.1 and Pw.2 denied that they have never seen the accused and they have identified the accused at the instance of the police. It is seen from Pw.4 that he examined Pw.3 and collected the original

Ex.P2.

15.The fake transaction by the accused was held on 17.02.2009 while Ex.P1 complaint was lodged by Pw.1 on 15.06.2010. Thus, there is one year four months delay in lodging

Ex.P1 complaint. When the evidence clinchingly establish the perpetration of crime by the accused, the said delay does not affect the prosecution case. There is no enmity suggested between the police party and the accused to falsely implicate him in a case. It is clearly deposed by Pw.1 that the accused cheated them in the name of Gyaara Shekar and as such, they lodged Ex.P1 complaint. According to Pw.1, this matter has been discussed with their Managing Director also. Although Pw.2 did not inform in writing about the dollar rate, they have verbally showed cheques and everything to police, as per Pw.2. Pw.2 did not state

before police that the accused called them by landline phone 3 or

4 times. Thus, the omissions sought to be elicited are no material omissions. NO such omissions have been confronted to the

Investigation Officer (Pw.4) on behalf of the accused. Thus, it is clearly established by way of oral and documentary evidence that 9 the accused committed forgery of the document (Ex.P2) for the purpose of cheating. Besides that he used the said document which is forged one fraudulently and dishonestly.

16.Forgery has been described in section 463 IPC as whoever makes any false document or part of a document, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery. Section 465 IPC provides that whoever commits forgery shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both. Under section 468 IPC whoever commits forgery, intending that the document forgbed shall be used for the purpose of cheating shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. 471 IPC provides that whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document. Under section 420 IPC whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security or anything which is signed or sealed, and which is capable of 10 being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine.

17.Here, there is cheating and dishonest intention on the part of the accused from the beginning. In view of the afore- mentioned discussion, the prosecution has proved the guilt of the accused beyond all reasonable doubt for the above mentioned sections. Therefore, the accused is found guilty.

18.The accused is questioned regarding quantum of punishment. He submitted that he is alone in the house and he has to look after his parents. Having parents is a common phenomenon and it is not a special circumstance. In view of the facts and circumstances of this case, there are no reasons to proceed against the accused under section 360 Cr.P.C.

19.In the result, the accused is convicted U/s.248 [2]

Cr.P.C. for the charge U/s. 468 IPC and is sentenced to undergo

Rigorous Imprisonment for Three years and to pay a fine amount of Rs. 100/-, I.D. S.I. for one month. The accused is convicted

U/s.248 [2] Cr.P.C. for the charge U/s. 471 IPC r/w 465 IPC and is sentenced to undergo Rigorous Imprisonment for Two years.

The accused is further convicted U/s.248 [2] Cr.P.C. for the charge U/s. 420 IPC and is sentenced to undergo Rigorous

Imprisonment for Three years and to pay a fine amount of 11

Rs.100/-, I.D. S.I. for one month. All the sentences against the accused under the above counts shall run concurrently. The period of detention undergone by the accused shall be given set- off against the sentence of imprisonment u/sec. 428 Cr.P.C. from 22.06.2010 to 29.06.2010 and 10.12.2013 to 12.12.2013.

Dictated to the Personal Assistant, transcribed by him,

corrected, pronounced by me in the open court on this the 31st day of October, 2014.

I ADDL.CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION :FOR DEFENCE:

PW.1 Aijaz Ur Rahman, complainant Nil PW.2 Shaik Rahman PW.3 V. Purushotham, PW.4 Vijay Kumar, S.I. of Police/IO

EXHIBITS MARKED

FOR PROSECUTION : FOR DEFENCE :

Ex.P1 Complaint of Pw.1Nil Ex.P2 Bankers cheque given by the accused Ex.P3 Statement issued by Pw.3 to the police Ex.P4 F.I.R.

MATERIAL OBEJCTS

- Nil -

I ADDL.CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

IN THE COURT OF THE XXVII ADDL. CHIEF JUDGE,

CITY CIVIL COURT, SECUNDERABAD.

Present : Sri.K. Sreenivasa Rao, XXVII Addl. Chief Judge, City Civil Court, Secunderabad.

DATED THIS THE 27th DAY OF DECEMBER , 2018

A.S. NO. 40 OF 2015

Between:

Mohd. Khader--Appellant.

A N D

The Secunderabad Cantonment Board rep. by its Chief Executive Officer--Respondent.

On appeal against Judgment and Decree dated 11.8.2015 in

O.S.No.684 of 2012 on the file of XI Junior Civil Judge, City Civil Court,

Secunderabad.

O.S. NO. 684 OF 2012

Between:

Mohd. Khader--Plaintiff.

A N D

The Secunderabad Cantonment Board rep. by its Chief Executive Officer--Defendant.

This Appeal is coming before me for final hearing in the presence of Sri S.Keshava Rao, Advocate for the Appellant and of Sri K.R.Koteswara Rao, Advocate for respondent and the matter is comming over for consideration till this day, the court delivered the following :

J U D G M E N T

1. This appeal is filed against the Judgment and Decree dated 11.08.2015 of XI Junior Civil Judge, City Civil Court, Secunderabad in

O.S.No. 684 of 2012 dismissing the suit for injunction.

2. It is the case of the plaintiff that according to the plaintiff, he purchased H.No.146 in GLR Sy.No.574/153 in Pension Lines, Bowenpally,

Secunderabad (suit schedule property). Plaintiff mortgaged the sale deed in

Chift Fund Company. The plaintiff is in peaceful possession and enjoyment of the suit schedule property. The house is 30 years old and it is not suitable for living habitation as the roof was leaking during rainy season, walls are in dilapidated condition. Therefore, the plaintiff wanted to repair the old house.

He engaged the workers to carry out the repairs in October, 2012. At that time on 6.11.2012, he received notice issued by defendant under Sec 239 of the Cantonments Act to stop the construction and another notice under Sec.

248(1) of Cantonments Act to remove the unauthorized construction within 30 days. But the plaintiff only carried out the repair works to the old construction. He preferred appeals before the concerned authorities on 29.11.2012. There is no comoplaint from neighbours against the plaintiff.

The impugned notice by the defendant is bad in law. Hence, the plaintiff seeks the permanent injunction against sealing the premises and taking away construction material by the defendant, their representatives, staff and anyone who is claiming to be the representatives of defendants.

3.Written Statement was filed stating that there is sanction given to the plaintiff for construction of the building and the construction is unauthorized one and is liable to be demolished. The landlord of the suit property is Union of India, Ministry of Defence. No injunction can be granted against the true owner. This Court has no jurisdiction to entertain the suit under Sec. 249 of the Cantonments Act, 2006.

4. The plaintiff started raising the unauthorized construction of ground and first floor in the suit premises by demolishing the old structures without obtaining any prior permission from the defendant board. During the routine inspection, the defendant found on 29.10.2012 that the plaintiff is raising the unauthorized construction in the premises by demolishing the existing structures and raising new constructions of ground and first floor wtihout obtaining prior permission from the defendant. Immediately the

Asst. Engineer of the defendant board had stopped the construction on the site and noted down the details of unauthorized construction of ground and first floors and as per report, the stage of the unauthorized construction in ground and first floors as follows: Built up area -34’-0” + 29’-6” / 2 x 57’-)” in each floor and has not maintained the requisite setbacks and mariginal open spaces around the building and the total constructions are in violation of building bye laws and FSI restriction and after noticiing the unauthorized constructions, the Asst Engineer requested the plaitniff and his workers/representatives to witness the inspection report but they refused to stand as witness on the inspection report. Thereafter, the Asst. Engineer had submitted his report to the Chief Executive Officer of the defendant board for necessary action for removal and demolition of unauthorized construction. Based on the inspection report of the Asst. Engineer, the Chief

Executive Officer had issued two notices, one under Sec. 248(1) of the

Cantonments Act, 2006 dated 02.11.2012, to the plaintif to stop the unauthorized construction and remove the same within 30 days from the date of receipt of this notice and another one under Sec. 239 of the

Cantonments Act, 2006 dated 02.11.2012 to stop the construction forthwith failing whcih the undersigned will be constrained to initiate action under Sec.

239 (2), 239(3), 239 (4) of the Cantonments Act, 2006. The said notices were received by the plaintiff, but he did not choose to stop / remove the unauthorized construction being carried on the property and simply filed appeals before the Appellate Authority, Pune on 29.11.2012 against the

Notice under Sec. 248 (1) of the Cantonments Act, 2009 and another appeal

before the Executive Officer, Secunderabad against the Notice under Sec.

239 of the Cantonments Act, 2006 but failed to obtain any order of suspension of the said notices pending appeal from the Appellate Authority, the plaintiff in order to complete the unauthorized construction is proceeding with unauthorized construction high handedly at brisk rate in violation of

Building Bye Laws and FSI restriction on the Central government property.

5.Under such circumstances, there is no other option left to defendant except to issue ntoice under Sec. 249 of the Cantonments Act, 2006 to seal the premises, because the plantiff is proceeding with unauthorized construction in order to complete the same, hence the Chief

Executive Officer of the defendant board had issued Notice under Sec. 249 of the Cantonments Act, 2006 dated 16.11.2012 and called upon the plaintiff to seal such erection carried or completed in the premises within three days from the date of issuance of this notice otherwise the sealing of the aforesaid premises will be done by the defendant office at the cost of the plaitniff. After receipt of the said notice also, the plaintiff has not complied the said notice and is proceeding with the construction by obtaining the order of status quo.

6.The constructions raised in ground and first floor by the plaintiff is totally unauthorized construction and the land is classified as B-3 Old

Grant under the management of Secunderabad Cantonment Board and the

Union of India, Ministry of Defence is the landlord hence, plaintiff is not entitled to raise any construction on the said land. Against the order passed, under Sec. 249 of the Cantonments Act, 2006 there is no provision to challenge the same before lower court and moreover the present suit filed for bare injunction without challenging the same is bad in law, though there is an averment in the plaint that the notice issued under Sec. 249 of the

Cantonment Act is against law, hence, the suit is in the present form is not maintainable and the plaint is required to be rejected as the suit is barred under law as specified under Sec. 250 of the Cantonment Act, 2006.

7. Basing on the pleadings, the following issues are settled by the

Trial Court:

1.Whether the plaintiff is inpossessionof the suit property as its absolute owner?

2.Whether the defendant interfered with plaintiff’s possession?

3.Whether the plaintiff is entitled for perpetual injunction ?

4.To what relief?

8. During the course of trial, the trial Court examined PW1 and

Exs.A1 to A11 were marked for the plaintiff. DW1 was examined and Exs.B1 to B3 were marked on behalf fo the defendant. Ultimately the suit was dismissed by the trial Court, aggrieved by which, the present appeal is filed.

9. Heard the arguments.

10. The point for consideration is whether the appellant / plaintiff is entitled for permanent injunction as prayed ?

POINT : -

11. PW1 is plaintiff. According to him, he purchased H.No.146 in

GLR Sy.No.574/153 in Pension Lines, Bowenpally, Secunderabad (suit schedule property). Plaintiff mortgaged the sale deed in Chift Fund

Company. The plaintiff is in peaceful possession and enjoyment of the suit schedule property. The house is 30 years old and it is not suitable for living habitation as the roof was leaking during rainy season, walls are in dilapidated condition. Therefore, the plaintiff wanted to repair the old house.

He engaged the workers to carry out the repairs in October, 2012. At that time on 6.11.2012, he received notice issued by defendant under Sec 239 of the Cantonments Act to stop the construction and another notice under Sec.

248(1) of Cantonments Act to remove the unauthorized construction within 30 days. But the plaintiff only carried out the repair works to the old construction. He preferred appeals before the concerned authorities on 29.11.2012. There is no complaint from neighbours against the plaintiff.

The impugned notice by the defendant is bad in law. Hence, the plaintiff seeks the permanent injunction against sealing the premises and taking away construction material by the defendant, their representatives, staff and anyone who is claiming to be the representatives of defendants.

12. PW1 did not give any reply to the notice under Sec. 239 of the

Cantonments Act stating that he was not making any construction and that he was only doing repairs. He did not file any photos showing the actual condition of the suit schedule property. He did not give any reply to the defendant after receipt of notices under Sec. 239 and 248 of the

Cantonments Act stating that he was only carrying on repairs but not doing construction work. In Ex.A6 plan, the sanction was accorded to change the roof in the ground floor of the house and the house consists of ground floor only. PW1 admitted that before making structural changes, permission has to be obtained from Union of India in terms of GGO 179 dated 13.9.1836. In the notice under Sec. 248 Cantonments Act, it was mentioned that he was raising unauthorized construction of ground and first floor with a built up area as shown in the notice. In the ground floor, built up area is mentioned

as 1400 sft. in the first floor the built up area is shown as 100 sft. with RCC

roof.

13. DW1 is Assistant Engineer of defendant Cantonment board.

According to him, sanction was accorded to plaintiff permitting to change the roof over the existing ground floor only. But the plaintiff raised first floor also.

Non receipt of complaints by any neighbours does not entitle the plaintiff to raise the unauthorized structures. The notice under Sec. 239 Cantonments

Act is dated 2.11.2012. The notice under Sec. 249 is dated 16.11.2012. Ex.

A12 is the reply notice dated 19.11.2012 issued by the plaintiff after issuance of Ex.A1 notice under Sec. 248 Cantonments Act. The plaintiff already preferred appeals against he impugned notices and they are pending.

14. Under Sec.250 (1) of the Cantonments Act, 2006, after the commencement of the Act, no court shall entertain any suit, application or other proceedings in respect of any order or notice unless an appeal under section 340 is preferred and the same is disposed of by the appellate authority under sub- section (3) of section 343 of the Act.

15. When the plaintiff already knocked the doors of the competent appellate authority, he is not entitled to knock the doors of this Court once again. In other words, no injunction can be granted against the defendant board as prayed.

16. In the circumstances mentioned above, there are no grounds to allow the appeal. The trial court decree and judgment are confirmed. AS is dismissed. No costs.

Dictated to Stenographer, transcribed by her, corrected and

pronounced by me in the open court, on this the 27th day of December, 2018.

XXVII Addl. Chief Judge, City Civil Court, Secunderabad.

APPENDIX OF EVIDENCE

NIL.

XXVII Addl. Chief Judge, City Civil Court: Secunderabad.