O.S.497/2008 & O.S.596/08 1 Dt: 17-07-2018
IN THE COURT OF THE II-ADDL. JUNIOR CIVIL JUDGE::: WARANGAL.
Tuesday, this the 17 thday of July, 2018
Present : Smt. K. Uma Devi,
Principal Junior Civil Judge,
Warangal. FAC II-Addl. Junior Civil Judge, Warangal
COMMON JUDGMENT
IN
O.S. No.497/2008 AND IN O.S.No.596/2008
O.S. No.497/2008
Between :
Paripati Indira, W/o. Srinivas Reddy, Aged 48 years, Occ: House hold, R/o. H.No.1-8-206, Balasamudram, Hanamkonda, Warangal District.
...Plaintiff
AND
1. Smt.M. Sunitha Devi, W/o. Raji Reddy, Aged: 47 years, Occ:Medical Practitioner, R/o. H.No.1-8-77, Balasamudram, Hanamkonda.
2. The Municipal Corporation, Warangal Rep., by its
Commissioner, S.V.N. Road, Warangal, ...Defendants
O.S.No.596/2008
Between:-
Bollu Sammi Reddy, S/o. Ram Reddy, aged 63 years, Occ: Agriculture, R/o. H.No.1-8-103, Balasamudram,
Hanamkonda, Warangal ...Plaintiff
AND
1. Smt.M. Sunitha Devi, W/o. Raji Reddy, Aged:47 years, Occ:Medical Practitioner, R/o. H.No.1-8-77, Balasamudram, Hanamkonda.
2. The Municipal Corporation, Warangal Rep., by its
Commissioner, S.V.N. Road, Warangal,...Defendants
O.S. No.497/2008:
This suit is coming up before me for final hearing on 12-07-2018 in the presence of Sri Y. Shyam Sunder Reddy, Advocate for Plaintiffs and Sri E.
Mallesham, Advocate for Defendant no.1 and Sri G. Vidyasagar Reddy,
Advocate for Defendant no.2 and upon hearing both sides and perusing the
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material on record and having stood over for consideration till this day, the
Court delivered the following:
O.S.No.596/2008:
This suit is coming up before me for final hearing on 12-07-2018 in the presence of Sri M. Raji Reddy, Advocate for Plaintiff and Sri E. Mallesham,
Advocate for Defendant no.1 and Sri K. Narsimha Rao, Advocate for
Defendant no.2 and upon hearing both sides and perusing the material on record and having stood over for consideration till this day, the Court delivered the following:
: : C O M M O N J U D G M E N T : :
O.S. No.497/2008
The above suit is filed by the plaintiff seeking the relief that, i) to protect the legal rights of the plaintiff to get free air and ventilation from the eastern side of the suit schedule property and restrain the defendant No.1 from making any construction in specified set back from eastern side of compound wall of the suit schedule property, ii) the defendant No.2 may be directed not to allow the defendant No.1 from making any construction to the eastern side of the compound wall of the suit schedule property as per the
Municipal Building Rules, iii) Costs of the suit may be awarded.
2. The averments of the plaint in nut shell are that, the plaintiff by name Paripati Indira filed he present suit stating that, she is the owner and possessor of house bearing No. 1-8-206 situated at Balasamudram,
Hanamkonda for the last 27 years. The house is abutting to the house bearing No.1-8-104 ( Plot No.B1/8/2), which was purchased by Defendant
No.1 Dr. M. Sunitha Devi at about three years back. The house of the plaintiff bearing Municipal No. 1-8-206, herein after called as “suit schedule property”. It is further submitted that, on the eastern side of the plaintiff’s house site Dr. M. Sunitha Devi demolished her old existing structures and constructing a new house without leaving any setbacks, and that Defendant
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no.1 is allowed to construct further without leaving any place from the back, side eastern side compound walls, the plaintiff's property will be damaged.
The plaintiff’s light, air and sun to her will lost, and due to bad effect for the constructions raised by the defendant. The plaintiff’s ventilation will be effected, Defendant no.1/M. Sunitha Devi, has no right to create any objections for the light and air of the plaintiff. Therefore, the construction of the defendant's, easementory rights are badly affecting. It is further submitted that Defendant no.2 is Municipality, the plaintiff submitted a petition before the Municipality on 7-5-2008 with a request to stop the illegal construction proceedings with Defendant no.1. Defendant no.2 received said letter, but they made a deaf-ear over the complaint. Again, on 12-5-2008 the plaintiff submitted a reminder to Defendant no.2. Even then, Defendant no.2 has not taken any proper steps. Therefore, the plaintiff filed the present suit for injunction seeking to protect the legal rights of the plaintiff, restraining the illegal constructions made by Defendant no.1 on the back place from eastern side compound wall of the suit schedule property. It is further requested to Defendant no.2 to direct not to allow Defendant no.1 for illegal construction in her property. Hence, this suit.
3.Defendant No.1 filed written statement, denying the contents of the plaint, by contending that the suit is not maintainable as it speaks the nature and further submitted that, this defendant no way concerned with the house No.1-8-206. It is further submitted that the defendant is a stranger to the plaint schedule property. The defendant purchased her house within old structures and she constructing her own house within her own property. The defendant left over open place around her constructions. Thereby, the claim of the plaintiff is not tenable. It is further submitted that after inspecting the property, the officials of Defendant no.2 accorded permission vide No.123
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with File No. G2/22630/2007, B.A.No.128/2007/08, dated 23-8-2007 in her favour permitting to construct a building. The officials, of the Municipal
Corporation approved the plan pertaining to the proposal construction. It is further submitted that the defendant never deviated from the construction permission granted by the Municipal Corporation. There is no cause of action arose to file the present suit. Hence, the suit is liable to be dismissed.
4.Defendant No.2 filed written statement narrating that the
Municipality is not having knowledge with regard to the possession over the property. The plaintiff failed to produce the permission in respect of notice issued by Defendant no.2 office on 12-06-2008 vide R.O.C.No.G2/14857/8.
The plaintiff not furnished detail for his constructions, Defendant no.1 proceeding with construction as per the permission accorded by it. On noticing, Defendant no.1 submitted his grievance, as per the enquiry
Defendant no.1 not deviated any sanction plan, he gave explanation submitted that only an extent of 6-feet depth was deviated, due to the loose sub-soil. Further requested to drop the further proceedings. In fact
Defendant no.1 granted permission to raise construction. Accordingly,
Defendant no.1 proceeding further. He submitted any deviation of the construction by Defendant no.1 order definitely the same on being noticed and allowed to issue is on verification of he plot, the concerned deviation are created to which explanation was sought. The plaintiff also raised stair case restraining compound wall without leaving any setback 5-feet towards eastern side of the suit schedule property. The suit is not maintainable as the mandatory notice U/sec. 685 of HMC Act is not issued. Thereby, the suit itself is liable to be dismissed.
5.Basing on the above pleadings, the following issues were settled for trial.
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i) Whether the plaintiff is entitled for the relief of permanent injunction as prayed for ?
ii) To what relief ?
O.S.No. 596/2008:
6.This suit is filed by the plaintiff seeking the relief that, i) to protect the legal rights of the plaintiff to get free air and ventilation from the southern side of the suit schedule property and restrain the defendant No.1 from making any construction in specified set back from southern side of house of the plaintiff. ii) the defendant No.2 may be directed not to allow the defendant No.1 from making any construction to the southern side of the house of the plaintiff as per the Municipal Building Rules and Regulations, iii)
Costs of the suit may be awarded.
7.The averments of the plaint in nut shell are that, the plaintiff by name Bollu Sammi Reddy filed the present suit against Defendant No.1 Dr. M.
Sunitha Devi, stating that the he is owner and possessor of house and open place Municipal bearing No. 1-8-103, situated at Balasamudram,
Hanamkonda. Originally, the said plot is on the name of father of the plaintiff. Subsequently, the plaintiff constructed the house No. H.No.1-8-103 by removing old structures. Thereafter, the father of the plaintiff sold the part of land with old structures on the Municipal bearing No.1-8-104 (the plot
No.B1/8/2) in favour of one Samudrala Sambaiah, and another part of land to one Paripati Indira. M. Sunitha Devi purchased the property from
Samudrala Sambaiah at about three years back. Thereafter, Dr. M.Sunitha
Devi, demolished the old structures existing and constructing a new house.
Defendant no.1 started construction for the residential, but Defendant no.1 and her husband being tried for constructing building for residential and hospital purpose. Defendant no.1 constructing building withat leaving any
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place and setback to the southern house of the plaintiff without adopting the building rules and regularization of Municipal Corporation, and without leaving sufficient open place between the house of the plaintiff and defendant. The building construction of Defendant no.1 is under progress, which is against the Municipal Building rules and regulations. It is further submitted that Defendant no.1 is allowed to construct her house just without leaving open place towards southern side of house of the plaintiff, the plaintiff and his family members will loose the accommodation of free light, air, and sun to his house, and he put on the light even during entire day time.
Defendant no.1 has not right to create any obstruction to the legal rights of the plaintiff, and to enjoy the free air, light, and ventilation. The plaintiff also submitted a petition to the Defendant No.2 on 16-6-2008 with a request to stop such an illegal construction. Defendant no.2 received said letter, but gave a deaf ear over the complaint. Again on 12-5-2008 the plaintiff submitted the reminder to Defendant no.2. Even then, Defendant no.2 has not taken any proper steps. Therefore, the plaintiff filed the present suit for permanent injunction seeking to protect the legal rights of the plaintiff, restraining the illegal constructions made by Defendant no.1 on the back place from eastern side compound wall of the suit schedule property. It is further requested to Defendant no.2 to direct not to allow Defendant no.1 for illegal construction in her property. Hence, this suit.
8.Defendant No.1 filed written statement, denying the contents of the plaint, by contending that the suit is not maintainable as it speaks the nature and further submitted that, these defendant no way concerned with the house No.1-8-206. It is further submitted that the defendant is a stranger to the plaint schedule property. The defendant purchased her house with old structures and she constructing her own house within her own property.
The defendant left over open place around her constructions. Thereby, the
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claim of the plaintiff is not tenable. It is further submitted that after inspecting the property, the officials of Defendant no.2 accorded permission vide No.123 with File No. G2/22630/2007, B.A.No.128/2007/08, dated 23-8- 2007 in her favour permitting to construct the building. The officials of the
Municipal Corporation approved the plan pertaining to the proposal construction. It is further submitted that the defendant never deviated from the construction permission granted by the Municipal Corporation. There is no cause of action arose to the present suit. Hence, the suit is liable to be dismissed.
9.Defendant No.2/Municipality filed written statement narrating that the Municipal is not having knowledge with regard to the possession over the property of plaintiff. The plaintiff failed to produce the permission in respect of notice issued by Defendant no.2 office on 12-06-2008 vide
R.O.C.No.G2/14857/8 for the constructing of plaintiff's house. Defendant no.1 proceeding with construction as per the permission accorded by him, the
Municipality. On noticing, Defendant no.1 submitted his grievance, as per the enquiry D1 not deviated any sanctioned plan, he gave explanation submitted that only an extent of 6-feet depth was deviated, due to the loose sub-soil. Further requested to drop the further proceedings. In fact
Defendant no.1 granted permission to raise construction. Accordingly,
Defendant no.1 proceeding further. He submitted any deviation of the construction by Defendant no.1 order definitely the same on being noticed and allowed to issue is on verification of he plot, the concerned deviation are created to which explanation was sought. The plaintiff also raised stair case restraining compound wall without leaving any setback 5-feet towards eastern side of the suit schedule property. The suit is not maintainable as the mandatory notice U/sec. 685 of HMC Act is not issued. Thereby, the suit
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itself is liable to be dismissed as it is not maintainable without notice to municipality.
10.Basing on the above pleadings, the following issues were settled for trial.
i) Whether the plaintiff is entitled for the relief of permanent injunction as prayed for ?
ii) To what relief ?
11.Both suits were clubbed and evidence adduced in O.S.No.
497/2008. To prove the case of the plaintiff, the plaintiff himself examined as
PW-1 and got marked Ex.A1 to A4. The plaintiff in O.S.No.596/08 is examined as Pw.2. Defendant No.1 in both suits examined himelf as DW.1, and Ex.B1 and B2 are marked. The Advocate Commissioner examined and Ex.C1 to C5 are marked.
12.The schedule shown in the plaint in the houses of both plaintiff's i.e., plaintiff's in O.S.No.497/2008 and O.S.No.596/2008 respectively in two different schedules i.e., the houses of plaintiff in both suits respectively.
Evidence recorded in O.S.No.497/2008. The plaintiff in O.S.No.497/2008 P.
Indira was examined as PW-1, she reiterated, the averments of the plaint in
O.S.No.497/2008 in his chief examination. During cross examination, she
narrated that Defendant no.1 is his neighbour and there is a wall in between her house and Defendant no.1’s property. Defendant no.1 purchased the property with existing old house. She admitted that, their staircase was constructed on the compound wall without leaving any space, and old purchased house of Defendant no.1 was demolished and got constructing a house in their property by obtaining permission from Municipal Corporation,
Warangal. She further admitted that her husband lodged a complaint before the Municipal Corporation, Warangal against Defendant no.1. She do not know whether the Municipal people inspected the house property of
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Defendant no.1 and also issued notice to PW-1 to furnish Municipal permission for his construction. There is no plan annexed with Ex.A1.
Defendant no.1 not encouraged into defendant making constructions to her house. Her plot and plot of Defendant no.1 and B. Sammi Reddy were sold by their vendor. B.Sammireddy is his neighbour, but he has not related to him. Her house construction made at about 28 years back. Therefore, the plan is not available with her.
13.The plaintiff in O.S.No.596/2008, (K. Krishna Rao) examined as
PW.2 (on behalf of the plaintiff K. Krishna Rao Examined as PW.2). He reiterated the averments of the plaint in O.S.No.497/2008), he reiterated the averments of plaint in his chief examination. During the cross examination, he narrated that he attended before the Court through the husband of PW.1.
He is working as contractor. His house is not situated at the suit schedule locality, and it is in Sudhanagar. His house is at a distance of one and half kilometer from the schedule property and he got well acquaintance with the plaintiff’s husband since 30 years, and he is his friend. The plaintiff got issued a report to the Municipal Corporation and that there were old structures with the existing house of Defendant no.1. She got demolished the same and re-constructed new building with the permission obtained from the Municipal Corporation, Warangal. He does not know about the documents and permission of PW-1. There is staircase of plaintiff attached to the compound wall in between the house of plaintiff and defendants without leaving any space. There is no staircase of Defendant no.1 attached to the compound wall. He has not got measured the hight of the defendant building.
14.DW-1 M. Rajireddy, examined as DW-1, he reiterated the averments of the written statement in O.S.No.497/2008 as well as in
O.S.No.596/2008. During cross examination he admitted that he constructed
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his house without having any setbacks and he is facing Ventilation problem by blocking the air and light etc. He narrated that the present suit is filed by one Srinivas Reddy against him by narrating that he is suffering from
Ventilation and air and light, as his constructions were blocked the air and light. The said Srinvias Reddy is Southern boundary owner of his residence.
He admitted that, as on the date of purchase of the property on the name of his wife, there was a space in between his compound wall and old structures. There was only ground floor, and they dismantled by them on due permission. He constructed the property. With due permissions granted by the Municipal for G+2 floors. The construction was commenced in the year 2007 and completed in the year 2010. They constructed in four floors.
As per Ex.B-2 the permission is only for G+2 floors. Even though there was no permission for Four floors. He constructed the same. According to him, he obtained permission for Four floors, that he will file the said permission.
He admitted that his wife has not got mentioned in the written statement, the details of setback left over by them for their residence, and as on the date of purchase of the property by his wife there is existing space of 5-feet in between his house and house of plaintiff. It is further admitted that, 3 and 4 floors were raised during pendency of the suit. Rain water is not cumulating at the house of plaintiff. He further narrated that the
Commissioner who came to the property and observing that there existence of 5-feet space as setback and the said photographs are wrong. It is further narrated that, they have not filed any sketch to disprove the sketch of the technical person. There is no 5-feet set back. He admitted that as on the date of purchase, their existence of the house on the northern side also compound wall. The distance between the compound wall and house of northern owner is 10-feet. The distance between his house and the compound on the northern side as on the date of purchase is 8-feet. They
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completed construction during the pendency of the suit. In the year, 2007 when the Officials of Municipal Corporation, Warangal visited the property for inspection, the constructions was in progress.
15.The Advocate Commissioner, Smt. Andalu examined as CW-1. As per her evidence, she appointed an Advocate Commissioner by the Court to got issue notice to both parties and she fixed the date on 23-7-2017 at 11-00
AM. As per the fixed time, she arrived and conducted Advocate
Commissioner report. During the course of cross examination, she admitted that she note down the physical features of the schedule property. She has taken the assistance of technical person. There is no setback left by either the plaintiff nor the defendant to the respective houses. During cross examination, she narrated that she do not know whether the said technical person is sub-ordinate to Indira’s husband. She cannot say whether all the photographs were taken. The photographs were taken by the Junior Counsel of the plaintiff, who in turn is handed over to him. The Room of B. Sammi
Reddy is on the compound wall of the defendants. She is not obtained the permission copy of the defendant. She measured the property from pillars.
She cannot say any thing on seeing photographs whether there is any effect on the light or air of the plaintiff.
16. ISSUE NO-1: In O.S.No.497/2008 and O.S.No.596/2008:
The learned counsel for the plaintiff in O.S.No.497/2008 and O.S.No.596/2008 are submitting respectively that the construction raised by the defendant no.1 in her land (which is not schedule properties of both the suits) in causing effect of light and air, so also causing inconvenience to them. As per the plaintiff in O.S.No.497/2008 her easementary rights are being effecting.
PW.1 Bollu Sammi Reddy, plaintiff reiterated the averments of the plaint. During cross examination, he reiterated that his father purchased the suit schedule property plaintiffs property and obtained proper permission
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from Municipal Corporation, Warangal. The compound appeared is belongs to the plaintiff. Defendant no.1 not made any constructions in suit schedule property. Defendant no.1 is marking constructions in her property as per the plan. He do not know whether there is any permission given by Municipal
Corporation, Warangal. Defendant no.2 denied the averments posed to him.
During his cross examination, PW.2/S. Sambaiah reiterated the averments of the plaint. During cross examination he narrated that, due to urgency, the defendant constructed wall towards Western side of the property.
17.The learned counsel for the plaintiff submitted that, due to structures which are in progress got made by the defendants are causing obstructions light and air and so also ventilation towards eastern side of the suit schedule property. So, proscriptive right of the plaintiff are infringing by the acts of Defendant no.1. As Defendant no.1 raising constructions without sanction, the defendant No.1 submitted that whatever the construction made by her property, as per sanction plan of Municipal Corporation, Warangal, thereby there is no infringing right of the plaintiff in his O.S.No.497/2008. So, also the learned counsel for the plaintiff in O.S.No.596/08 submitting that the original suit schedule property and plot of the defendant belongs to the plaintiff in turn. The plaintiff sold the property to S. Sambaiah vide Municipal bearing No.1-8-104 in favour of S. Sambaiah, the said Sambaiah sold the plot to the defendant at about three years back. Due to raising of building towards Southern side of his house is free flow of Ventilation and light and air are infringing. Thereby, the present suit is filed.
18.So, basically the parties to both the suits were filed for infringement easementary rights of both parties. According to the plaintiff, they are enjoying the light and air from the property of the defendant from the last 27 years and no evidence adduce to substantiate the said averments made by them. To Substantiate the case of defendant no.1, defendant no.1
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filed the sanction plan of defendant was in blue print sanctioned plan marked as Ex.B2. As per the plan towards northern side and western side of the proposed constructions and the house of plaintiffs are situated respectively.
As per the plan towards northern and western side the D-1 has to be maintain 1.50 mtrs and 3- mtrs wide set back for his constructions and sanction was granted for the residential purpose G+2 floors only. As per
Ex.B2 sanction proceedings dated 23-8-2007 is given only for constructions of G+2 floors. During the cross examination DW.1 Rajireddy, S/o. Buchireddy narrated that he is husband of first defendant M. Sunitha Devi, in his chief examination at Para No.2, he mentioned that he constructed his house as per the permission No.D2.27/430 of 2007 granted by second defendant authority and as per the plan approved by KUDA. During the course of continuation of construction, the sub ordinate of Second defendant inspected the property time and again and satisfied with the constructions which are made by him.
He further narrated that the plaintiff constructed her building encroaching the open place of the defendant left for their free flow of air and light and also installed the plaintiff staircase over the compound wall of the defendant without leaving any inch of open place. He further narrated that she kept open land on four sides of her house, due to installation of the staircase encroaching his exclusive 5 feet width of open place, due to which they lost from air, ventilation and light into the house of the defendant. Thereby, the defendant suffering from mental agony. During the cross examination the defendant admitted that as on the date of purchase of the property, it was open place between the compound and his house and the property is residential one. The permission granted for G+2 floors, but the construction commenced in the year 2007 and it was completed in the year 2010. They constructed Four floors in the property, but as per Ex.B-2 sanctioned permission was granted for G+2 floors. The permission was given for only
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G+2 floors. The said document is not filed by the parties, but he narrated that he can file the permission given by Municipal Corporation by regularized the constructions made by him is wife M. Sunitha Devi not got mentioned in written statement, the details of the set backs left over by him for his residents as on the date of his purchase there is 5 feet open place between his house and house of plaintiff. He further admitted that 3rd and 4th floors raised during the pendency of the suit. As per the photographs filed along with the Commissioner, there is existence of 5 feet space as set back as shown in the photographs. As per Ex.C-5 the photographs. There is no projection. He admitted as on the date of purchase of property there was a house, the distance between the open wall and house is 10 feet, the distance between his house and compound wall on the northern side as on the date of purchase is 8 feet. He further admitted that he completed the constructions during the pendency of the present suit. On perusing the record on hand, as per the orders of I.A.No. 1276/2008 an Ad-interim injunction was granted directing the respondent No.1 and his men, not to raise any constructions towards eastern side of the petition schedule property, subject to sanction plan, the same is substituting till so far as no order was passed by vacating the interim order, as such the same is still substituting. Admittedly, the injunction order was passed and injunction order was served on Defendant no.1. Even though, without compliance of the order passed by the Court,
Defendant no.1 raised the constructions by violating Ex.B-2. As per the constructions made by Defendant no.1 in the suit schedule property is not for the residential purpose, he raised for the Commercial purpose one. During the cross examination of DW-1, according to him, he got regularized the sanctioned plan by way of payment of LRS, but no scrap of paper filed to prove his content. However, as per Ex.B-2, the defendant has to maintain the setbacks from the boundary wall abutting the plaint schedule property of
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O.S.No.497/08 and O.S.No.596/08, but as per Ex.B-2 admittedly DW-1 not
constructed the house property. As per admission of DW-1, he raised four floors (G+3) and he also raised projections towards the properties of the plaintiffs. Thereby the evidence of DW-1 itself prove that he violated the injunction granted by the Court during the pendency of the suit to substantiate the case of plaintiff. The Advocate Commissioner appointed in her cross examination the Advocate Commissioner filed positive photographs. As could be seen from the positive photographs, it reveals that towards eastern side and northern side, there is no set back maintained by
DW.1 while constructing his structures. Thereby, on perusing the evidence of
DW.1 and Exs.B-1 and B-2, it is proved that the defendant raised the constructions in their property by deviating the Municipal sanction and permission accorded by Defendant no.3.
19. The learned counsel for the plaintiff submitted that the projection made by Defendant no.1 is to be removed by granting injunction over the suit schedule property. The counsel for the plaintiff, narrated that the structures which are made by violating Ex.B2 shall be removed and the court may directed the Defendant no.3 to remove the structures, in that back drop, the unauthorized structures was admitted by the defendant during his cross examination. Except oral evidence, no piece of paper substantiated that the Municipal Corporation regularized the constructions made by the defendant from G+1 floor to G+3 floors. The breach of statutory obligation is also breach of right of the plaintiff under section 38 of the Specific Relief Act provides for grant of permanent injunction to prevent the breach of obligation existing in favour of the plaintiff, the said right or obligation in favour of the plaintiff whether expressly or an obligation is nothing but proof of existing and non existing right, thereby the court can necessarily to grant or refuse the prayer. As per the provision the existing
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the right of the plaintiff is free flow of right and air ventilation. The said existing right was breached by the acts of the defendants. Even though an interim order was passed, the plaintiff raised the constructions, thereby
I.A.No.179/2008 in O.S.No.497/2007 is pending. Wherein the defendant is admitted that he is proceeding with the constructions as per approved plan, for that reason the said petition was filed, the constructions which are permitted by Grater Warangal Municipal Corporation in the property of the defendant may be raised, as per the sanction plan Ex.B-2 but not permitted to deviated from the sanctioned accorded by the defendant. But he raised the construction G+3. The Advocate Commissioner appointed and examined as CW-1, he narrated that the constructions which were made for running
Junior College and Hospital for not residential purpose. It is further noted that as per Ex.C-5/B, there is no set back maintained on the eastern side as well as northern side of the properties. Moreover, they are 10 feet projected up to the wall of plaintiffs. As could be seen from the evidence of Advocate
Commissioner, she narrated that – measured suit schedule property and she wrote all the details in her report. She inspected the schedule property with the help of technical person. Ex.C-1 is the Commissioner report. As per her report there is 2 feet set back left in between northern house of B.
Sammireddy and the defendant building. There is 5 feet 7 inches distance between the northern side wall to the building of defendant. There are projections at about 3 feet 7 inches slab towards B. Sammireddy, so also the western and eastern side as narrated at Page No.2 of her report. After filing her report there is no objections filed by either party. In the suit plaintiff property is shown as suit schedule property but the defendant raised structures as per his own admission in his property not in the suit schedule property. Moreover, whatever the projection were made in the defendants structure not the suit schedule property. So also, it is an admitted fact by
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both parties that DW-1 go raised structure during pendency of the suit for
G+3 floors. Even injunction is subsisting no voilation of injunction petition filed and no steps taken by the plaintiff. So, if at all injunction is granted the suit schedule of the respective suits are only plaintiffs property, so, deviations not occurred in the plaitniffs property it is only in defendants property. It is not the case of the plaintiff respectively that the defendant causing obstructions are making constructions in the plaintiff's property respectively, it is the case of plaintiffs that the defendant raising constructions on deviating the permission on which their properties are being effecting. In the above back drop suit for injunction for the property of plaintiff's respectively not maintainable.
20.Under these circumstances, the obligations of the plaintiff not to do enact i.e. proof of existence of illegal structures in the defendants property are appearing for which light, air are effecting, but there is no relief sought by the plaintiff for getting removal of structures raised by the defendants in the defendants property. So also the projections made by the defendants towards the plaint schedule property in the property of the defendant. On seeing both suits, both suites were filed for bare injunction for the plaintiff’s property, not for declaration or removal of structures made by the defendant in his property. Under the above circumstances, the said bare injunction is not maintainable. Accordingly, Issue nos. 1 and 1 in both suits are answered against the plaintiffs and in favour of defendant.
21. ISSUE No-2: On perusing the record on hand, the suit is filed against Municipal Corporation is not maintainable until and unless a mandatory notice U/sec.685 is not issued. Sec.685 notice is mandatory prior to institution of suit against Greater Warangal Municipal Corporation. The mandatory notice cannot be dispensed by the Court while filing the suit against Grater Warangal Municipal Corporation. Thereby, the suit filed
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against Municipal Corporation without giving mandatory notice U/sec.636.
Under the above circumstances, the suit is not maintainable.
In the result, the suit in O.S.No.497/2008 and O.S.No.596/2008 are dismissed without costs.
(Typed to my dictation by Stenographer, corrected and pronounced by me, in the open court on this the 17th day of July, 2018)
FAC II-ADDL. JUNIOR CIVIL JUDGE,
WARANGAL
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PLAINTIFFS:
PW-1: Paripati Indira (examined in O.S.No.497/08)
PW-2: Kontham Kishan Rao (examined in O.S.No.497/08)
PW-1: B. Sammi Reddy (examined in O.S.No.596/08)
PW-2: Samudrala Sambaiah (examined in O.S.No.596/08)
FOR DEFENDANT:
DW-1: M. Raja Reddy (examined in O.S.No.497/08)
Advocate Commissioner:
C.W-1: V. Andalu
EXHIBITS MARKED
FOR PLAINTIFFS:
Ex.A1:Proceedings of the Commissioner, Warangal Municipality,
dt: 8-4-1981
Ex.A2 and A3: Property tax receipts, dated 13-7-1983, & 13-7-1983
Ex.A-4:Miscellaneous receipt, dated 29-3-2008
Ex.A-5:Office copy of letter dated 7-5-2008.
Ex.A-6:Acknowledgement,
Ex.A-7:Office copy of letter dt. 12-5-2008.
Ex.A-8:Acknowledgement,
Ex.A9 to A16: Photographs along with negatives and CDs and photo bills.
(The above Exhibits marked through Pw.1 P. Indira in O.S.No.497/08)
O.S.497/2008 & O.S.596/08 19 Dt: 17-07-2018
Ex.A-1:Miscellaneous bill, dated 21-6-2008.
Ex.A-2:Certificate issued by the Commisioner, Warangal Municipal
Corporation, dated 21-6-2008.
Ex.A-3:Photographs along with negative and photographs bill.
Ex.A-4:Acknowledgement dt. 16-6-2008
(The above Exhibits marked through Pw.1 B. Sammireddy in O.S.No.596/08)
FOR DEFENDANTS:
Ex.B-1:Certified copy of registered sale deed vide Doc.No.4492/2003
Ex.B-2:Permission proceedings vide No.123, dated 23-8-2007 along with plan.
(The above Exhibits marked through Dw.1 M. Raja Reddy in O.S.No.497/08)
For Advocate Commissioner:
Ex.C-1:Commissioner Report
Ex.C-2:Commissioner Warrant
Ex.C-3:Work memo of petitioner/plaintiff
Ex.C-4:Two notices.
Ex.C-5:Photographs.
Sd/-
FAC II-ADDL. JUNIOR CIVIL JUDGE,
WARANGAL