Sri M Venkata Rama Rao

1OS 372­12

IN THE COURT OF THE III ADDITIONAL CHIEF JUDGE: CITY

CIVIL COURT: HYDERABAD

Dated this the 4th day of August,2015

Present: Sri M.VENKATA RAMA RAO

IX Addl. Chief Judge, CCC, Hyderabad

FAC III Additional Chief Judge, CCC, Hyderabad

OS No. 372 of 2012

Between :

M. Venkatesham... Plaintiff

A N D

1. Smt M Sattemma

2. Smt P Leela... Defendants

This suit is coming on this day before me for final hearing in the presence of Sri N. Bhujanga Rao, Advocate for the plaintiff and of Sri G.

Murali Mohan, Advocate for the defendant No.1 and of Sri P. Krishna Mohan,

Advocate for the defendant No.2 and the matter having stood over for consideration and this court passed the following :

JUDGMENT

1)This is a suit filed for declaration o title in respect of suit property for grant of perpetual injunction restraining the defendants from interfering with peaceful possession and enjoyment of the suit schedule property and for award of costs.

2)The plaintiff is Sri M Venkatesham, S/o Sri M Achaiah, defendant No.1 is Smt M Sattemma, W/o M Achaiah, second defendant is Smt P Leela, W/o

P Kumar. The first defendant is mother. Second defendant is the younger sister of plaintiff.

3)The case of the plaintiff is that the plaintiff is the absolute owner and possessor of House No. 2-2-647/232/1 consisting of ground and first floor 2OS 372­12 admeasuring about 150 sq. Yards situated at Srinivasa Nagar Colony, Bath

Amberpet, Hyderabad. The plaintiff was gifted open plot with one room under through registered gift settlement deed dt. 04.07.1996 under document No. 1271/96 by first defendant. The possession was delivered on the same day, the room which was 10 x 10 existing on the plot.

Subsequently the plaintiff constructed ground floor and thereafter first floor. He constructed three portions in the ground floor and two portions were let out to tenants and residing one portion along with first defendant and his father. Subsequently the plaintiff instructed first floor by all his savings and income derived from rents. While it is so, in the year 2010 there arose disputes between the plaintiff and his wife Smt Kavitha. She lodged a police complaint before Keesara police station against plaintiff, defendant No.1, 2 and husband of the 2nd defendant namely P Kumar. In the name of investigation police were calling plaintiff and defendants and

D2's husband P Kumar and threatening them in the name of investigation.

Then plaintiff, defendant No.2 and her husband gave an undertaking before police on 15.07.2010 stating that they will look after Smt Kavitha cordially.

During such days when plaintiff was having disputes with his wife defendants prevailed upon stating that he shall not have any property in his name. Smt Kavita may file any case like maintenance and second defendant and her husband forced the plaintiff to execute gift cancellation deed. They also promised that first defendant will again execute gift settlement deed after the issue was settled between the plaintiff and his wife Smt Kavitha. With that proposal the defendant No.2 and her husband got prepared a deed of cancellation of the gift settlement deed and plaintiff filed a cancellation gift deed under compulsion. Such cancellation 3OS 372­12 of gift settlement deed is illegal and fake document and not intended to act upon against the will of the plaintiff. Therefore, it is void document. In spite of execution of cancellation of gift settlement deed, the plaintiff is in possession and enjoyment of the suit schedule property. He got the name mutated in the municipal records receiving rents from tenants. Thereafter defendant No.1 & 2 and husband of second defendant approached

Additional Metropolitan Magistrate Sessions Judge, Cyberabad and sought

directions in M P No. 516 of 2011 against police Kesara with a direction not to call them to Police station in the name of investigation without registering the case. Thereafter Smt Kavita filed a complaint against plaintiff, defendant No.1, 2 and husband of 2nd defendant namely P Kumar and case under crime No.4 of 2012 under Section 498A, 4 and 6 of DP Act was registered. Defendant No.1, 2, and D3 obtained anticipatory bail from the court. Plaintiff was arrested and later on released on bail. In the mean time second defendant had taken original documents of gift settlement deed, ATM card of plaintiff gold ornaments and misused them.

4)Thereafter plaintiff had compromised his case with Smt Kavitha both started living in the house. Thereafter defendant No.2 and her husband colluded together to deprive the rights of the plaintiff over the suit schedule property and got executed another Gift Settlement Deed dt.28.03.2012 under document No. 947 of 2012 registered at Sub Registrar, Chikkadpally as first defendant executed gift deed in favour of the second defendant in respect of ground floor together with undivided share of 75 Sq Yds out of 150 Sq Yds. Plaintiff came to know about the fact only on 22.04.2012 from his tenants when he demanded for payment of rents. They stated second defendant asserted her right. Then he asked after knowing about 4OS 372­12 execution of gift settlement deed by first defendant in favour of second defendant in respect of ground floor then he obtained certified copy of such documents, Encumbrance Certificate. These documents are executed by playing fraud and putting pressure on the plaintiff and first defendant was misrepresented and documents obtained but house standing in his name and electricity bills are being paid in his name. The entire building was constructed with his own funds. The gift settlement deed executed on 17.07.2010 is only precautionary in order to over come the cases filed by

Smt Kavitha and never intended for and prayed for cancellation of such gift deed. Therefore, they are void documents, as such the suit is filed for declaration that the plaintiff is the owner of the suit schedule property to declare that cancellation of gift settlement deed dt. 17.07.2010 under document No. 2215 of 2010 and also gift settlement deed dt. 28.03.2012 are null and void and not binding on the plaintiff and also for perpetual injunction against the defendants from interfering into possession of the plaintiff over the suit schedule property.

5)In this case defendant No.1 & 2 have filed identical written statements. They disputed the ownership of plaintiff in respect of suit schedule property. In fact the suit property is purchased by first defendant and her husband with their hard earned money. The plaintiff was never in exclusive possession of the suit schedule property. The first defendant admitted that there are disputes between the plaintiff and his wife. A

Cancellation gift settlement deed under document No. 2215/2010 is executed with full consciousness and out of free will by plaintiff. This cancellation of gift was executed only to make up the damage caused to 5OS 372­12 second defendant as she was not given any property. There was an understanding on the advise given by locality and community elders for the cancellation of such deed. In order to proper legalization first defendant executed gift deed in favour of the second defendant under document No.

947 of 2012 on 28.03.2012 gifting ground floor in favour of second defendant. There is no misrepresentation or fraud played on the plaintiff by defendants. All plaint averments are false, created to give sympathy functioning of the court. After execution of gift settlement deed suit schedule property was mutated in the name of the second defendant. The possession of the plaintiff over the suit schedule property is permissive.

They admitted about criminal proceedings and obtained anticipatory bail in

Crl.M.P No. 516 of 2011. The first defendant had totally supported the

case of the second defendant in her written statement. It is also pleaded that the plaintiff had snatched away two tolas of two gold gantis, 30 tolas of waist ornament, Rs.30,000/-cash and pension pass book from the first defendant and prayed for dismissal of the suit with costs.

6)The second defendant filed her written statement in same lines as per the first defendant. She denied all the plaint averments and allegations made against the defendant No.1 & 2 and husband of second defendant.

The second defendant is the absolute owner and possessor of ground floor in the suit schedule premises with undivided share of 75 Sq yds having got under gift settlement deed from her mother under document No.947 of 2012. The suit property was exclusively purchased by the first defendant and her husband with their hard earned money. She also admitted about criminal cases filed by Smt Kavitha against plaintiff. The admitted about obtaining anticipatory bail. They never played fraud or misrepresentation 6OS 372­12 on plaintiff to execute cancellation of gift settlement deed. Plaintiff had consented for the same, as such the cancellation of gift deed executed vide document No.2215/2010. It is binding on the plaintiff and the first defendant on the advise of elders and in order to give share in the property to the second defendant executed a gift settlement deed in favour of second defendant on 28.03.2012 under document No. 947 of 2010 registered with SRO, Chikkadpally, Hyderabad. If really the first defendant wanted to deprive plaintiff's possession and legitimate share, the first defendant could have executed gift settlement deed in respect of entire property. The allegation that second defendant and her husband took away all the original documents, ATM card and gold ornaments is false.

7)The plaintiff is very much aware of execution of gift settlement deed under document No. 947 of 2012 and she also prayed the court to dismiss the suit with costs.

8)After going through the rival contentions, this court framed the following issues on 23.07.2013.

1) Whether the plaintiff is entitled for declaration to declare the plaintiff as owner of the suit schedule property as prayed for?

2) Whether the plaintiff is entitled for perpetual injunction as prayed for?

3) Whether the suit is bad for non joinder of necessary parties?

4) To what relief?

9)On behalf of the plaintiff Pw.1 & 2 are examined and Exs A.1 to A.16 are marked. On behalf of the defendants Dw.1 is examined and Exs B.1 to

B.18 are marked.

7OS 372­12

10)After closure of evidence on both sides, arguments are heard.

11)The admitted facts in this case are that originally the suit schedule property belongs to first defendant. She executed a gift settlement deed in favour of the plaintiff. The rest of the plaint averments are disputed.

Plaintiff says fraud and misrepresentation was made by the defendant No.2 and her husband when Smt Kavitha filed a criminal case against him. In order to save property he executed cancellation of gift settlement deed and he is totally unaware of first defendant executing gift settlement deed in favour of the second defendant in respect of ground floor. At the outset it can be observed the suit framed is not proper. One has to plead as to how fraud has been played and how defendant could execution under influence on plaintiff to execute cancellation of gift deed.

12)The another question is when gift settlement deed is cancelled by plaintiff in favour of the first defendant what is the further action taken by the plaintiff, if it is only an understanding between the plaintiff and defendants to save the property from claims made by Smt Kavitha against her husband, such as maintenance case or partition of suit property etc,.

There shall be some other document in between the plaintiff and defendants, such as Memorandum of Understanding or there shall be further agreement between them to execute another document in favour of the plaintiff by first defendant. These points are not pleaded in the plaint.

13)This court framed additional issue as Whether the defendants have played fraud and coercion on plaintiff in execution of cancellation of gift deed in favour of first defendant?

8OS 372­12

14)Since entire evidence is adduced based on pleadings there requires no further evidence on this issue framed by this court on 03.08.2015.

15)This court proposed to discuss issue No.1 and additional issue in common.

16) ISSUE No.1 & Additional Issue :-

The close examination of documents filed by both parties show that

Ex A.1 is gift settlement deed dt. 04.07.1996 executed by Smt M

Sattemma in favour of M. Venkatesham in respect of the suit property. The source of title of Smt Sattemma of suit property is mentioned in the document document. Smt Sattemma purchased this property under registered sale deed under document No. 356/1988 dt. 03.03.1988. This was gifted in favour of plaintiff out of love and affection without any consideration. At page 4 of gift deed first defendant clearly mentioned that the donor had delivered vacant peaceful possession of schedule property in favour of donee with all relevant papers and link documents and donee had accepted them i.e gift.

17)The description of the property is house No.2-2-647/232/1 consisting of ground and first floor admeasuring about 150 sq. Yards situated at

Srinivasa Nagar Colony, Bath Amberpet, Hyderabad. bounded by : North :

House No. 2-2-647/232, South : House No. 2-2-647/235, East : House No.2- 2-647/243 and West : Road. This is appended with a map. This map shows the house is consisting of only one room 10 x 10. There is no construction standing on the property when it was gifted.

9OS 372­12

18)Ex A.2 is deed of cancellation of gift settlement deed dt. 17.07.2010 executed in favour of M Sattemma in respect of very same property. This is appended with a map. This shows ground + first floor. The ground and first floor was constructed in between 1996 and 2010 for a period of 14 years. The plaintiff had enjoyed the property by virtue of these two documents.

19)Ex A.3 is gift deed executed by first defendant in favour of Leela (second defendant dt.28.03.2012. The gift settlement deed is executed in respect of half of the property i.e entire ground floor was gifted. These three documents are important for the purpose of this case and all other documents are tax payment receipts, E.C, FIR and an understanding taken

before police. It is to be seen here that the undertaking is given under Ex

A.4 is dt. 15.07.2010. Ex A.2 is dt. 17.07.2010. That means two days after giving undertaking before police by second defendant, plaintiff and husband of 2nd defendant, to look after Smt Kavitha cordially the cancellation of gift settlement deed was executed. That means by the date of execution of Ex A.2 the differences between Venkatesham and Smt

Kavitha was settled. There are no special circumstances pleaded in the plaint as to under what circumstances plaintiff had to execute Ex A.2 in favour of his mother.

20)Coming into the documents of defendants Ex B.1 is Mutation proceedings in the name of Smt Leela and all other documents are mutation proceedings of electricity connection, tax bill details and receipts.

It is also important to note that originally house stands in the name of 10OS 372­12 plaintiff i.e M Venkatesham. After execution of Ex A.3 the second defendant got the house mutated in respect of ground floor with the help of

Ex A3. But plaintiff was not given any notice, to express his objections for such mutation proceedings. Such proceedings can be challenged by the plaintiff in a different forum.

21)It is to say oral evidence adduced by both parties. The burden of proof is lies heavily on the plaintiff to prove that he was on duress or compulsion to execute Ex A.2 as on that date. Pw.1 in his affidavit filed for chief examination mentioned all the facts as pleaded in the petition. In the cross examination, he stated that he is working as dispatch clerk, who says that he does not know reading and writing English. His father was gang man in railways and retired from service in the year 1987. The suggestion was put to this witness that with the pension benefits and savings of his mother, who is doing milk business the schedule property was purchased.

At that time plaintiff was aged 17 of 18 years old. He had no independent income at that time. Then it may be probable that his father had purchased the house with joint funds in the name of his mother in the year 1988.

22)In his further cross examination he stated that his father gifted 200 sq. Yds open land to his elder brother and his elder brother disposed the property and purchased another property. Pw.1 again said that his younger sister was also given a plot. It was suggested to him that all elders advised for cancellation of gift deed was executed and first defendant executed gift in favour of the second defendant to give some property as she was not given any property unlike the other children. Sri P Kumar, the husband of 11OS 372­12 the second defendant is working in RTC driver at Kushaiguda depot, who studied upto 10th class. His wife filed criminal case against plaintiff, defendant No.1, 2 and husband of defendant No.2 for the offense under

Section 498 (A) IPC. They had obtained anticipatory bail and plaintiff was arrested and released subsequently. His father had got 0.20 guntas of land at Yenkirala Village at B B Nagar Mandal. It was suggested that plaintiff created galata at the time of funeral of his father for partition of that property.

23)It can be seen from the evidence that he had not pleaded any special ground for cancellation of gift settlement deed.

24)Pw.2 is only a supporting witness. But his evidence is not inspired confidence in the mind of court for the reasons that he is not a party to any of the panchayat held. It is not even a case of plaintiff that a panchayat was held in the presence of elders and cancellation of gift settlement deed under Ex A.2 was executed in obedience of advise of the elders. It is also pertinent to note that the plaintiff had not examined any of his tenant who was paying rents to him from the suit schedule property.

25)Dw.1 i.e second defendant is examined other side. Earlier first defendant filed affidavit but did not come for cross examination on the ground as her evidence was eschewed. It appears that first defendant changed her mind and sailing with plaintiff. Therefore, she was not brought for cross examination. Dw.1 deposed in the same manner as per written statement pleadings. In the cross examination there is nothing elicited from him to show that they influenced plaintiff in execution of cancellation of gift 12OS 372­12 settlement deed under Ex A.2.

26)No fraud is played against plaintiff. This court observed that Ex A.2 was executed two days after giving assurance to the Police Kesara that undertaking as Ex A.2. Since Ex A.2 is subsequent to undertaking was given, there is no possibility of using undue influence of plaintiff to execute

Ex A.2 in favour of his own mother. Further if there is any understanding between plaintiff, first defendant, second defendant to overcome any cases filed are to be filed by Smt Kavitha, wife of plaintiff there shall be some document and could been executed for avoiding the property. That step was not taken. As such this court holds no fraud had been played on the plaintiff in executing Ex A.2.

27)The other point is, that the plaintiff is the owner of the property under Ex A.1. Plaintiff got open land with one room. There after he constructed a house ground and first floor with his own earnings. He executed cancellation of gift settlement deed in favour of his mother. Then the property vested with first defendant with absolute rights including structures raised by the plaintiff over the suit schedule property since Ex

A.2 is a valid document.

28)By virtue of Ex A.2 the first defendant had become absolute owner of the property. She can dispose off her property according to her will and wish. Thereafter she had executed Ex A.3 in favour of second defendant in respect of ground floor. Accordingly she had given ground floor in favour of second defendant with half of the rights in ground. The evidence of first 13OS 372­12 defendant is very clear that she wanted to give some property to her younger daughter since she was not given any property unlike her elder son and another daughter. As such the second defendant also gets half rights in the property along with plaintiff. The second defendant gets right over ground floor of the suit schedule property, half of the ground with undivided interest and upper floor is for plaintiff since he had already conveyed the property in favour of his mother till first defendant executed a gift settlement deed or conveyance in respect of remaining property i.e half share in undivided ground and first floor by which plaintiff will not be owner of the property. That means first defendant should execute another document in favour of plaintiff in respect of rest of suit schedule property.

As such the plaintiff cannot be declared as owner of the suit schedule property. Thus issue No.1 and additional issues are being decided against the plaintiff.

28) ISSUE No.2 :- It is an admitted fact that the plaintiff is in possession of the property. Therefore, he cannot be evicted without due process of law.

His possession cannot be interfered since he is in possession of the property from the year 1996. Therefore, he is entitled for perpetual injunction against the defendants. As such the suit is dismissed partly with regard to issue No.1. The plaintiff is not granted declaratory relief. But he is granted injunction. The defendants shall not interfere in his possession in respect of the suit schedule property without due process of law.

29) Issue No.3 :- The husband of second defendant is not party to any document. As such he is not necessary party to suit. Answered 14OS 372­12 accordingly.

30) ISSUE No.4:-In the result, the suit is decreed partly. The relief of declaration of title is dismissed. The plaintiff is granted perpetual injunction restraining the defendants from interfering in possession suit schedule property without due process of law. No costs.

Dictated to the Stenographer transcribed and typed by him,

corrected and pronounced by me in the open court, on this the 4th day of

August, 2015.

Sd/-

(M.Venkata Rama Rao) FAC III Additional Chief Judge, City Civil Court, Hyderabad

Appendix of Evidence Witnesses examined For the Plaintiff : For the Defendants :

Pw.1 : M VenkateshamDw.1 : Ponaganti Leela

Pw.2 : K Satyanarayana

Documents Marked For the plaintiff :

Ex A.1 : CC of Gift Settlement Deed dt. 04.07.1996

Ex A.2 : CC of Deed of Cancellation of Gift Settlement Deed dt. 17.07.2010

Ex A.3 : CC of Gift Settlement Deed dt. 28.03.2012

Ex A.4 : Original Undertaking executed by the plaintiff along with D2 and her husband dt. 15.07.2010

Ex A.5 : Original Property Tax receipts dt. 27.04.2012

Ex A.6 : Original Property Tax Bill dt.31.07.2010

Ex A.7 : Original Property Tax Bill dt. 14.08.2008

Ex A.8 : Original Property Tax Bill dt. 23.06.2007

Ex A.9 : Original Property Tax Bill dt.17.06.2006

Ex A.10 : Original Property Tax Bill dt.01.06.2005

Ex A.11 : Original Notice of Demand dt. 25.11.2005

Ex A.12 : Original Bunch of Electricity Bills (27 Nos) 15OS 372­12

Ex A.13 : Original Encumbrance Certificate dt. 24.04.2012

Ex A.14 : Original Market Value Certificate dt. 26.04.2012

Ex A.15 : Original Telephone Bill dt. 25.07.2006

Ex A.16: Original Bunch of Electricity Bills (49 Nos)

For the defendants :

Ex B.1 : GHMC Mutation proceedings dt. 06.06.2012

Ex B.2 : CPDCL Name change in respect of service No.VI094515 dt.14.05.2012

Ex B.3 : CPDCL Name change in respect of service No.VZ 079187 dt.12.07.2012

Ex B.4 : CPDCL Name change in respect of service No.VI 093487 dt.

12.07.2012

Ex B.5 : Internet copy customer lodger of HMW&SB, pertaining to R2 dt.22.01.2013

Ex B.6: CC of E.C dt. 19.04.2012

Ex B.7 : CC of E.C dt. 14.12.2012

Ex B.8 : CC of orders in criminal petition No.4850/2012

Ex B.9 : Original receipt of APCPDCL dt.10.08.2013

Ex B.10 : Original receipt of APCPDCL dt.20.03.2014

Ex B.11 : Original receipt of APCPDCL dt.12.02.2015

Ex B.12 : Original HMWSB dt.21.12.2013

Ex B.13 : Original HMWSB dt.12.02.2015

Ex B.14 : Original HMWSB dt.14.03.2015

Ex B.15 : Original HMWSB dt.10.04.2015

Ex B.16 : Original Receipt GHMC Property Tax dt. 03.10.2013

Ex B.17 : Original Receipt GHMC Property Tax dt.27.08.2014

Ex B.18 : Original Receipt GHMC Property Tax dt.11.04.2015

Sd/-

(M.Venkata Rama Rao) FAC III Additional Chief Judge, City Civil Court, Hyderabad

Page No.1

In the Court of the IX Additional Chief Judge

City Civil Court : Hyderabad

Present : Sri.M.Venkata Rama Rao, IX Additional Chief Judge

Dated the 20th Day of August, 2015.

CMA NO.189 of 2009

Between:

Ashok Kumar Jaiswal S/o.Late Kishna Pershad Jaiswal aged 45 years, Occ: Production Manager, Uni-Sankyo Limited, Hyderabad R/o.H.No.3-2-266, Old Moti Market, Kachiguda, Hyderabad.

... Appellant

And :

1.Uni-Sankyo Limited Having Registered office at Plot No.13, Sagar Society, Road No.2, Banjara Hills, Hyderabad, Rep.by its Managing Director.

2.Sri.V.V.S.Somayajulu, Head Human Resource and Administration Uni-Sankyo Limited, Plot No.13, Sagar Society, Road No.2, Banjara Hills, Hyderabad.

3.The Deputy General Manager, Uni-Sankyo Limited Gagan Pahad, Mahabubnagar Road, Hyderabad – 501 323.

4.G.Suryam, Advocate, Inquiry Officer, Uni-Sankyo Limited, Plot No.13, Sagar Society Road No.2, Banjara Hills, Hyderabad. … Respondents

This CMA was filed under Order 43 Rule 1 of CPC against the order and decreetal order dated 16.6.2009 passed in

I.A.NO.236 OF 2009 in O.S.No.316 of 2009 passed by the IV

Senior Civil Judge, City Civil Court, Hyderabad.

Page No.2

I.A.No.236 of 2009 in

O.S.NO.316 of 2009

Between:

Ashok Kumar Jaiswal S/o.Late Kishna Pershad Jaiswal aged 45 years, Occ: Production Manager, Uni-Sankyo Limited, Hyderabad R/o.H.No.3-2-266, Old Moti Market, Kachiguda, Hyderabad. … Petitioner/ Plaintiff

And :

1.Uni-Sankyo Limited Having Registered office at Plot No.13, Sagar Society, Road No.2, Banjara Hills, Hyderabad, Rep.by its Managing Director.

2.Sri.V.V.S.Somayajulu, Head Human Resource and Administration Uni-Sankyo Limited, Plot No.13, Sagar Society, Road No.2, Banjara Hills, Hyderabad.

3.The Deputy General Manager, Uni-Sankyo Limited Gagan Pahad, Mahabubnagar Road, Hyderabad – 501 323.

4.G.Suryam, Advocate, Inquiry Officer, Uni-Sankyo Limited, Plot No.13, Sagar Society Road No.2, Banjara Hills, Hyderabad.

.. Respondents/Defendants

This CMA coming on before me for final hearing in the presence of Miss.Ravindra Bharathi, Advocate for the

Appellant, and of Sri.B.Ravindranath, Advocate for the

Respondent No.1 to 4, and the matter having been stood over for consideration till this day this Court, delivered the following:

J U D G M E N T

1.This Civil Miscellaneous Appeal was filed by the appellant

Page No.3 under the order and decreetal order dated 16.6.2009 passed in

I.A.NO.236 OF 2009 in O.S.No.316 of 2009 passed by the IV

Senior Civil Judge, City Civil Court, Hyderabad.

2.The Judgment is assailed on the following grounds.

1. The order under appeal is contrary to law, weight of evidence and probabilities of the case.

2. The order under appeal is an instance of non-application of mind by the Trial court miserably failed to either refer or discuss the jurisdictional points raised at the time of hearing of the application seeking grant of temporary mandatory injunction on behalf of the appellant herein; namely that the charge sheet having been issued by incompetent authority who is lower in the rank than the appointing authority and the incompetent authority having assumed the role of disciplinary authority has also acted as a Presenting Officer i.e. contrary to the well settled principle of law that no person can be judge in his own cause; apart from the fact that the authority who issued the charge sheet is not competent to do so. The

Trial court also failed either to refer or to discuss the point of law raised and argued on behalf of the appellant to the effect that the person who appointed the enquiry officer being lower in the rank than the appointing authority, renders the appointment of enquiry officer as abinitio-void and illegal. Further the Trial court also failed

Page No.4 either refer or discuss the settled principles of company law that the Managing Director of a company being a delegatee of powers delegated in his favour by the Board of Director, cannot further delegate his powers in favour of other officers of the company, which was vehemently argued on behalf of the appellant before the Trial court.

In fact the respondents have failed to produce any document showing that atleast there is any sub- delegation of power in favour of the General Manager ( Finance) and Secretary by the Managing Director of the 1st respondent company; since the General Manager ( Finance) and Secretary appointed the enquiry officer even though he is incompetent to do so and even he does not have any delegation of power in his favour for doing so.

3. The Trial court miserably failed to see that as the settled principle of company law to the effect that the Managing

Director of a company being a delegatee of powers delegated in his favour by the Board of Director, cannot further delegate his powers in favour of the officers of the company. The said legal position arise out of the principle of company law “Delegatus non-protest delegire”. Therefore, the Trial court ought to have safely held that the Managing Director of the company cannot delegate his powers of initiating disciplinary proceedings as alleged to have been done in the instant case.

4. The Trial court ought to have seen that the power of

Page No.5 attorney given in favour of the 2nd respondent by the

Managing Director of the 1st respondent company which is marked as R1 in the order also dated:16.6.2009 passed by the Trial court in the connected I.A.No.236 of 2009 in O.S.No.316 of 2009 has no validity in the eye of law in as much as most of the Directors of the 1st respondent company who are signatories of the

Resolution passed in the meeting of Board of Directors of 1st respondent company held on 13.3.1999, have changed. Therefore, the Managing Director cannot be said to have been delegated with the powers by the present Board of Directors so as to be competent to sub- delegate his powers in favour of the 2nd respondent for the purpose of initiating disciplinary proceedings against the appellant herein. This ground was stated without prejudice to the contention raised on behalf of the appellant that there cannot be sub-delegation of the powers by the delegatee (Managing Director) who himself the delegatee of power by the Board of Directors of the company. The appellant on verification in the office of Registrar of Companies recently was reliably given to understand that the 1st respondent company has not submitted the copy of the Resolution passed in a meeting of Board of Directors, on 13.3.1999 and that therefore, it has no validity in the eye of law.

5. The Trial court ought to have seen that the appellant is having unavailed privileged leave of 102 days, unavailed

Page No.6 12 days casual leave and 10 days sick leave to his credit and therefore, he is entitled to for payment of salaries as prayed for especially in view of the fact that he was forcibly prevented from joining and discharging his duties after availing of leave by him

6. The Trial court ought to have seen that the appellant is entitled for the payment of salaries and bonus and other allowed benefits as prayed for and the Trial court ought to have directed the Respondents No.1 to 3 to pay the same to the appellant by allowing the petition seeking temporary mandatory injunction as prayed for in order to meet the ends of justice.

3.The petitioner was appointed as Laboratory Technician

Trainee in first respondent's factory and subsequently he was promoted to the Executive Cadre. First respondent company recently by force obtained resignation letter from various employees and the respondents are also threatening the petitioner to submit his resignation without any reason.

Petitioner resisted the same and was threatened that he would be charge sheeted on some fictitious grounds. Petitioner applied for grant of leave through e-mail due to the sickness of his father on 12.9.2008. The petitioner has got privilege leave of about 72 days and 30 more days, total 102 days, apart from 12 casual leaves and 10 sick leaves. On 12.9.2008 petitioner sent letter through registered post acknowledgment due to the third respondent that he was reporting to duty on 27.11.2008.

Page No.7

Second respondent instructed to petitioner to report registered office of the company on 29.11.2008 and again to attend office on 1.12.2008. Respondents once again threatened petitioner to submit his resignation and later issued a charge sheet through registered post on 2.12.2008, by antedating the charge sheet as dt:29.11.2008. Petitioner on 1.12.2008 at 17.15 hours refused to receive charge sheet. Petitioner submitted his reply on 19.12.2008 by registered post

Acknowledgment Due. Petitioner requested first respondent inquiry officer to direct the management to pay the monthly salary from September, 2008 to December, 2008. Petitioner also addressed another letter dt:31.12.2008 to the Inquiry

Officer. He ordered that petitioner cannot be permitted to engage an Advocate. Presenting Officer is none other than second respondent. The petitioner is not entitled for salary as he applied for leave. Enquire Officer intends to complete enquiry in a day. Petitioner entertained bonafide doubt as to whether the inquiry was being conducted impartially. An

Advocate and a lady, allegedly a student of law at Bombay were also present on 23.1.2009 during enquiry officer's proceedings. Petitioner objections is that they shall not be present was rejected by Enquiry Officer. Second respondent is an officer lower in rank to the appointing authority and he is not competent in law for initiating any disciplinary proceedings. The charge sheet issued by second respondent is null and void. Appointment of fourth respondent as inquiry officer by General Manager, Finance and Secretary, lower in

Page No.8 rank is to appointing authority (Manaing Director) and such appointment is also null and void. The entire enquiry proceeding is illegal and without jurisdiction and cannot be allowed as are null and void. Petitioner further contended that petitioner is entitled for monthly salaries from September, 2008 and sought for direction for payment of the same till the disposal of the suit.

4.Second respondent filed counter affidavit and the same is adopted by respondents 1 and 3 denying material averments in the petition affidavit appended to the petition and are as follows:

5.Suit filed u/section. 34 of the Specific Relief Act is not maintainable. As the petitioner could not discharge the functions properly. His probation was extended by six more months. Second respondent denied allegation that he was instrumental in obtaining resignation letters from Messers

Dr.Sri Devi, Sri.M.Jagadish, Miss Sailaja, Sri.Chandrasekhar.

They have only resigned for betterment of their future.

Petitioner was promoted as Manager Production in April, 2003.

Petitioner had abused confidence reposed on him in utter disregard to his duties and responsibilities, simply sent an e- mail. He is going on leave because his father was sick.

Petitioner did not care to verify whether his leave was sanctioned or not. The petitioner unauthorizedly remained absent from 12.9.2008 till 29.11.2008, the date of charge sheet. On 22.11.2008, the plaintiff sent a letter to

Page No.9

Mr.N.R.Deshpande, DGM (to his reporting officer) stating that he wants to report on 27.11.2008, as his father's health condition has improved. Basing on complaints received against the petitioner and by taking all the facts into cumulative consideration, charge sheet was issued against the petitioner.

Petitioner did not attend office on 29.11.2008 and again he sent telephone message and finally on 1.12.2008 the plaintiff went to head office but, he refused to receive charge sheet.

Petitioner made charge allegation against the respondents that he was pressurised to resign his job on 1.12.2008. To avail privilege leave on employee has to apply 15 days in advance and casual leave will be sanctioned if applied one day in advance. However, no advance application is necessary for sick leave. One has to submit sick leave application with medical certificate. Petitioner offered his explanation to the charge sheet on 19.12.2008. But, he never objected to the authority from issuing charge sheet, Board of Directors of defendant authorized Executive Director to exercise all powers and also to redeligate his powers. By virtue of the said power,

Mr.Jay L.Soman Executive Director has granted Power of

Attorney in favour of second respondent. Second respondent has got authority to charge sheet to the petitioner under above mentioned orders. Fourth respondent was appointed as

Enquiry Officer and the date of enquiry was fixed on 31.12.2008 and second respondent has acted as Presenting

Officer on behalf of the company. Petitioner sought for permission to take assistance of advocate to defend him in the

Page No.10 enquiry. But, he did not raise any objection against the second respondent for acting as Presenting Officer. Enquiry Officer has rejected petitioner's request, since it is only a domestic enquiry. Petitioner sought for payment of salary for the months of September, October and November and the same was forwarded to the management for taking decision. Petitioner signed all the proceedings without any protest and the enquiry was adjourned to 8.1.2009. Petitioner sought for 15 days time and same was granted. Petitioner was informed that the enquiry is to be completed as expeditiously as possible.

Mr.Pillay, Advocate and one law graduate were present on 8.1.2009 to watch the proceedings on enquiry. No prejudice will be caused to the petitioner and that the petition is liable for dismissal. It is further contended that petitioner is not entitled the same on principle of no work no pay. It is for plaintiff to file a separate Civil suit by paying appropriate Court fee. That the suit is speculative in nature and premature and liable for dismissal with costs. That the petition is liable for dismissal.

6.Respondents 1 and 3 have adopted counter filed by the second respondent.

7.Heard both sides. Exs.P1 to Ex.P33 are marked on behalf of the petitioner. Exs.R1 to R5 are marked on behalf of the respondent.

Page No.11

8.Arguments are heard for both sides.

9.Now the point for consideration is whether the Trial court order suffers any material ir-regularity.

POINT

10.The close examination of orders of Trial Court shows that the petitioner is an employer (R1). Petitioner had sent E-mail requesting for grant of leave and respondents contended that he had voluntarily absented from duty. Originally, the petitioner was appointed as Laboratory Technician to undergo training vide letter dated 15.11.1984. He was given promotion from time to time and re designating to the position of

Manager production vide letter dated 28.4.2003. Subsequent to E-mail letter,he had addressed several letters expressing his difficulties and he wanted to join on 2.12.2008 from 12.9.2008 to 2.12.2008 nearly two months and 20 days had passed.

When management tried to serve charge sheet under Ex.P17, he sought time and again kept himself absent to avoid service and he did not participate in proceedings. He was having 102 days privileged leave, 10 casual leave and 10 days sick leave and he sought for his payment of salary for those days and again he had indicated his intention to join duty on 27.11.2008. This was treated as his subordination and he was not placed under suspension and that period is treated as voluntarily abstaining from duty.

11.In CMA, the appellant had raised so many grounds like

Page No.12 appointing authority should be enquiry officer in his place,

General Manager, General Secretary was appointed as Enquiry

Officer and raised a question of “Delegatus non-protest delegire” stating that officer is not competent to sole enquiry.

But, the suit is filed for mandatory injunction to payment of salary to a sum of Rs.1,20,509/- and continue to pay

Rs.21,556/- per month. The petitioner herein had sought for relief of Interlocutory Application as to that to main relief in suit which is not permissible in Law. The relation between petitioner and respondent is employee and employer. It is constituted under agreement like offering job on certain terms and acceptance by appellant herein with or without conditions.

Ex.A1 is the Initial appointment order. Ex.A3 is the confirmation in service. Exs. A4 to A8 are the promotion orders. The Promotions given to petitioner regularly.

Thereafter correspondence started with regard to absent from service applying leave through E-mail etc.

12.Respondents filed documents, Ex.R1 power of attorney.

Ex.R2 is extract of resolution. Ex.R3, R4 are the representations given to enquiry officer. Ex.R5 is enquiry proceedings. The position of Enquiry Officer is not under challenge presently in suit. Therefore, majority of grounds taken CMA are not concerned to the application filed before

Trial Court i.e. in I.A.No. 236 of 2009. Both parties did not file service rules before this court or before Trial Court. In the absence of filing of service rules the court cannot pass any

Page No.13 orders in favour of petitioner pending enquiry that he shall be paid such and such remuneration. Instead of filing the petition under Order 39 Rule 1 and 2, the petitioner should have moved a petition for payment of subsistence allowance during pendency of proceedings and he should have sought for fair trial before enquiry officer. It is urged before this court that there will be departmental bias and the petitioner cannot appear before Enquiry Officer who is not a competent authority. In such circumstances, this court cannot find prima facie case, balance of convenience in favour of petitioner.

13.Specific Relief Act, Section.56 sub-Clause (f) (i) (INJUNCTION WHEN REFUSED) clearly prohibits Grant of

Injunction where the damage caused can be compensated in terms of money. The loss of petitioner/appellant is Monitory one. Since the case is very old. The Trial Court is directed to dispose off main case by giving preference to this case and on day to day Trial Basis. Both parties shall co-operate with Trial

Court in early disposal of case on merits.

14.This court finds there are no merits in appeal. Hence, appeal is dismissed. No costs.

Dictated to the Stenographer, transcribed by her, corrected

and pronounced by me in open court on this the 20th day of August, 2015.

IX Additional Chief Judge Hyderabad.

Page No.14

Appendix of evidence

Witnesses examined

For Appellant:For Respondents:

NilNil

Documents marked

For Appellant:For Respondents:

Nil Nil

IX Additional Chief Judge Hyderabad.

Page No.15

DECREE IN CIVIL MISCELLANEOUS APPEAL

IN THE COURT OF THE IX ADDITIONAL CHIEF JUDGE :

CITY CIVIL COURT:HYDERABAD

Dated this the 20th day of August' 2015.

Present : Sri.M.Venkata Rama Rao, IX Additional Chief Judge,

CMA NO.189 of 2009

Between:

Ashok Kumar Jaiswal S/o.Late Kishna Pershad Jaiswal aged 45 years, Occ: Production Manager, Uni-Sankyo Limited, Hyderabad R/o.H.No.3-2-266, Old Moti Market, Kachiguda, Hyderabad.

... Appellant

And :

1.Uni-Sankyo Limited Having Registered office at Plot No.13, Sagar Society, Road No.2, Banjara Hills, Hyderabad, Rep.by its Managing Director.

2.Sri.V.V.S.Somayajulu, Head Human Resource and Administration Uni-Sankyo Limited, Plot No.13, Sagar Society, Road No.2, Banjara Hills, Hyderabad.

3.The Deputy General Manager, Uni-Sankyo Limited Gagan Pahad, Mahabubnagar Road, Hyderabad – 501 323.

4.G.Suryam, Advocate, Inquiry Officer, Uni-Sankyo Limited, Plot No.13, Sagar Society Road No.2, Banjara Hills, Hyderabad. … Respondents

This CMA was filed under Order 43 Rule 1 of CPC against the order and decreetal order dated 16.6.2009 passed in

I.A.NO.236 OF 2009 in O.S.No.316 of 2009 passed by the IV

Page No.16

Senior Civil Judge, City Civil Court, Hyderabad.

I.A.No.236 of 2009 in

O.S.NO.316 of 2009

Between:

Ashok Kumar Jaiswal S/o.Late Kishna Pershad Jaiswal aged 45 years, Occ: Production Manager, Uni-Sankyo Limited, Hyderabad R/o.H.No.3-2-266, Old Moti Market, Kachiguda, Hyderabad. … Petitioner/ Plaintiff

And :

1.Uni-Sankyo Limited Having Registered office at Plot No.13, Sagar Society, Road No.2, Banjara Hills, Hyderabad, Rep.by its Managing Director.

2.Sri.V.V.S.Somayajulu, Head Human Resource and Administration Uni-Sankyo Limited, Plot No.13, Sagar Society, Road No.2, Banjara Hills, Hyderabad.

3.The Deputy General Manager, Uni-Sankyo Limited Gagan Pahad, Mahabubnagar Road, Hyderabad – 501 323.

4.G.Suryam, Advocate, Inquiry Officer, Uni-Sankyo Limited, Plot No.13, Sagar Society Road No.2, Banjara Hills, Hyderabad.

.. Respondents/Defendants

Claim : CMA filed by the appellant praying to this court to allow the appeal by setting side the order and decreetal order dated 16.6.2009 passed in I.A.NO.236 OF 2009 in

O.S.No.316 of 2009 passed by the IV Senior Civil Judge,

City Civil Court, Hyderabad.

Valuation : A fixed Court Fee of Rs.3/- is paid under Article 3(1) Sch-II of APCF and SV.Act.

Page No.17

Appeal presented on : 3.10.2009.

Appeal numbered on :26.10.2009.

This CMA coming on before me for final disposal in the presence of Miss.Ravindra Bharathi, Advocate for the

Appellant, and of Sri.B.Ravindranath, Advocate for the

Respondent No.1 to 4, and the matter having stood over for consideration till this day, this Court doth order and decree as follows :-

1. That the Civil Miscellaneous Appeal filed by the appellant be and the same is hereby dismissed.

2. That there shall be no order as to costs.

Given under my hand and the seal of the court on this the 20th day of August' 2015.

IX Additional Chief Judge, City Civil Court, Hyderabad.

Costs of the Appeal

For Appellant. For Respondents

1. Stamp on appeal.Rs. 3/- --

2. Stamp on power.Rs. 2/- 2/-

3. Advocate's fees.Rs. -- --

4. Stamp on process.Rs. 100/- --

5. Misc. expenses.Rs.-- -- ----------------------------------------------------------------------- Total : Rs. 105/- 2/- ----------------------------------------------------------------------

Page No.18

IX Additional Chief Judge, City Civil Court, Hyderabad.

Page No.1

In the Court of the IX Additional Chief Judge

City Civil Court : Hyderabad.

Present : Sri.M.Venkata Rama Rao IX Additional Chief Judge

Dated the 12th day of AUGUST, 2015.

AS.NO.108 OF 2010

AND

AS NO. 109 of 2010

AS NO. 108 of 2010

Between :

Smt.K.Uma Rani, W/o.Mr.K.Srinivas, aged 35 years, Occ: house hold, Resident of H.No.11-4-58, Gandhi Statue, Chilakalaguda, Secunderabad.

... Appellant

And :

Smt.Lurdhamma W/o.Mr.Ch.Devadanam aged 62 years, Occ: Household, Resident of H.No.7-1002/37, Ramnagar, Hyderabad.

... Respondent

Appeal filed against the judgment and decree passed in

OS No.3421 of 2003 dt.22.12.2009, on the file of the Court of

the X Junior Civil Judge, City Civil Court, Hyderabad.

OS No. 3421 of 2003

Between :

Smt.Lurdhamma W/o.Mr.Ch.Devadanam aged 62 years, Occ: Household, Resident of H.No.7-1002/37, Ramnagar, Hyderabad.

... Plaintiff

And :

Smt.K.Uma Rani, W/o.Mr.K.Srinivas, aged 35 years, Occ: house hold, Resident of H.No.11-4-58,

Page No.2

Gandhi Statue, Chilakalaguda, Secunderabad.

... Defendant

This appeal coming on before me for final hearing in the presence of Sri.K.Simon Preet Kumar, Advocate for the

Appellant, and of Sri.S.Bala Chander, advocate for Respondent, and the matter having been stood over for consideration till this day this Court delivered the following:

A.S.NO.109 OF 2010

Between :

Smt.K.Uma Rani, W/o.Mr.K.Srinivas, aged 35 years, Occ: house hold, Resident of H.No.11-4-58, Gandhi Statue, Chilakalaguda, Secunderabad.

... Appellant

And :

Smt.Lurdhamma W/o.Mr.Ch.Devadanam aged 62 years, Occ: Household, Resident of H.No.7-1002/37, Ramnagar, Hyderabad.

... Respondent

Appeal filed against the judgment and decree passed in

OS No.3417 of 2003 dt.22.12.2009, on the file of the Court of

the X Junior Civil Judge, City Civil Court, Hyderabad.

OS No. 3417 of 2003

Between :

Smt.K.Uma Rani, W/o.Mr.K.Srinivas, aged 35 years, Occ: house hold, Resident of H.No.11-4-58, Gandhi Statue, Chilakalaguda, Secunderabad.

... Plaintiff

And :

Smt.Lurdhamma W/o.Mr.Ch.Devadanam aged 62 years, Occ: Household, Resident of H.No.7-1002/37, Ramnagar, Hyderabad.

... Defendant

Page No.3

This appeal coming on before me for final hearing in the presence of Sri.K.Simon Preet Kumar, Advocate for the

Appellant, and of Sri.S.Bala Chander, advocate for Respondent, and the matter having been stood over for consideration till this day this Court delivered the following:

COMMON JUDGMENT

A.S.108 OF 2010

1.This is an appeal preferred against the judgment and decree passed in OS No.3421 of 2003 dt.22.12.2009, on the file of the Court of the X Junior Civil Judge, City Civil Court,

Hyderabad.

A.S.NO.109 OF 2010

This is an appeal preferred against the judgment and decree passed in OS No.3417 of 2003 dt.22.12.2009, on the file of the Court of the X Junior Civil Judge, City Civil Court,

Hyderabad.

2.The Judgment is assailed on the following grounds :

1. The Judgment under appeal is bad in law, and is against the evidence on record and probabilities of the case.

2. The Trial Court Judge, has not properly appreciated the documents on record the evidence on record of the appellant, plaintiff herein, in its proper perspective.

3. The Trial Court Judge, has failed to take into consideration exhibits Ex.B1 and B2 and the link

Page No.4 document (which is marked as Ex.A6 in

O.S.NO.3421/2003) marked on behalf of the respondent

herein. The link document marked on behalf of the respondent herein clearly shows that there is no opening on the western side of respondents property.

4. The Trial court Judge, has failed to take into consideration, the evidence of DW2 on behalf of the respondent herein, who categorically admitted that DW2 (husband of the respondent herein) and the respondent herein, never used the western side of their property and the nala as ingress and egress.

5. The Learned Trial Court Judge, has failed to take into consideration of evidence of DW2 (cross examination) that prior to laying of the nala, the compound wall of the appellant herein (in respect of the suit schedule property) and the compound wall of the respondent property were touching each other, which clearly shows that the existing Nala is passing through the property of the appellant herein and that there is no thorough fare through the property of the appellant herein, in view of the admission of DW1 and DW2 that the Nala is not passing through the property of the respondent herein.

6. The Trial Court Judge, erred in ignoring the evidence of

PW1 the appellant herein, who stated that the 'Nala' is laid through the suit schedule property.

7. The Trial Court has failed to take into consideration

Ex.A4 and A5 which is Judgment and Decree in

Page No.5

O.S.NO.280/1987, which was settled in Lok Adalath

(which litigation was between the appellant herein and

GHMC, for regularising the construction made in the suit schedule property).

8. The Trial Court Judge, has failed to take into consideration that the suit filed by the respondent herein against the GHMC was dismissed.

3.The O.S.No.3417 of 2003 is filed for grant of perpetual injunction restraining the defendant and her workmen etc., from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule premises.

4.The averments made in the plaint, in brief, are that the plaintiff is the absolute owner and possessor of the suit schedule premises bearing No.1-7-1002/37/A/1, admeasuring 307 sq.yards situated at Ramnagar, Hyderabad by virtue of a registered Gift deed bearing No.3230/2002. The vendor of the plaintiff purchased the property under a registered sale deed bearing document No.6728/1980 dated 3.7.1980 from one

Ch.Vidyasagar. He had also constructed wall and rooms in the year 1987, but when the MCH authorities tried to demolish the wall, the donor of the plaintiff filed a suit in O.S.NO.280/1987 and obtained interim injunction. Later, the said suit was settled

before Lok Adalat on 8.3.1988.

5.It is also stated that the father of Ch.Vidyasagar

Page No.6 purchased the suit schedule property from one G.Srinivasa Rao and others under a registered sale deed No.1555/1968 dated 22.5.1968. Hence, the plaintiff her donor and vendor of the donor have been in possession and enjoyment of the suit schedule property for more than 35 years.

6.That the defendant constructed a building illegally without permission on the eastern side of the suit schedule premises by grabbing the land of the northern side neighbour.

On 7.5.2003, the defendant came to the suit schedule premises, and threatened the watchman and tenants of the plaintiff, but the plaintiff resisted their illegal attempts with the help of her co-brother. But the defendant while leaving the premises stated that they would come and demolish the suit schedule premises. On 9.5.2003 at about 11.00 am the defendant came to the suit schedule premises along with some un-social elements abused the plaintiff, watchman family members in filthy language and tried to demolish the compound wall, but the plaintiff along with her watchman resisted the illegal attempts of the defendant. The plaintiff and her husband immediately rushed to Musheerabad Police

Station and presented a report but the police advised them to go to the Civil Court as the dispute is of Civil nature. Hence, the suit.

7.Written statement is filed on behalf of the defendant refuting the averments made in the plaint and further

Page No.7 contended inter-alia as follows. Admittedly, the extent of the suit schedule property is 287.50 sq.yards as per the link documents, but the same was shown as 307 sq.yards in the gift deed executed in favour of the plaintiff by her donor. The defendant has no knowledge as to how the donor of the plaintiff became the owner of the property and whether she was in possession of the said property. The defendant has no knowledge about the construction of the compound wall and the rooms in the year 1987 in the suit schedule property. The defendant constructed a building consisting of ground floor and first floor at the first instance and subsequently second floor in her own site admeasuring 100 sq.yards with the permission granted by MCH. There was a nala flowing in the land belongs to the MCH and, therefore, there is no question of encroaching the property.

8.It is stated that by filing the suit, the plaintiff was trying to obstruct the passage of the defendant from her house and the said nala which was covered with cement state (road) is the only passage to got to the house of the defendant, and the same is a Government property for which the plaintiff has no right. The defendant has no knowledge about the complaint made by the plaintiff and she never went to the property of the plaintiff on 9.5.2003. On a oral complaint given by the defendant, the Musheerabad police came to the spot and warned the plaintiff and directed them not to create any obstructions in using the passage by the defendant. There is

Page No.8 no cause of action arose for filing this suit. The plaintiff has not come to the court with clean hands. Finally, it is prayed that the suit may be dismissed.

9.O.S.No.3421/2003 is filed by the defendant in

O.S.NO.3417/2003 praying the court to grant permanent

injunction restraining the plaintiff in O.S.NO.3417/2003 her subordinates etc from interfering and obstructing her peaceful possession and enjoyment of the passage situated in front of her gate, reiterating the contents made in the written statement filed in O.S.NO.3417/2003. The defendant, who is the plaintiff in O.S.No.3417/2003 also filed a written statement reiterating the averments made in the plaint.

10.Basing on the above pleadings in O.S.NO.3417/2003, the

Trial court had framed the following issues :

1. Whether the plaintiff is the possessor of the suit schedule property. If so she is entitled to the relief of perpetual injunction?

2. Whether the suit is under valued?

3. Whether there is any cause of action to file the suit?

4. To what relief?

11.Basingontheabovepleadingsin

O.S.NO.3421/2003, the Trial court had framed the following

issues :

Page No.9

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

2. To what relief?

12.During the course of trial in O.S.No.3417/2003, on behalf of plaintiff, she examined herself as PW1 and got marked

Exs.A1 to A9. On behalf of defendant, Dws.1 and 2 were examined and got marked Exs.B1 and B2.

13.During the course of trial in O.S.No.3421/2003, on behalf of plaintiff, she examined herself as PW1, and got examined

PW2 and got marked Exs.A1 to A6. On behalf of defendant,

Dws.1 is examined, but no documents are marked.

14.Arguments are heard for both.

15.The suit filed by Smt.K.Uma Rani is dismissed and decreed the suit filed by Smt.Lurdhamma.

16.Now the point for consideration is whether Trial Court had committed any error in giving findings in dismissing the suit of Smt.K.Uma Rani and declaring the suit of

Smt.Lurdhamma.

17.It is to be seen here that Smt.K.Uma Rani got the property under a gift deed. Her title to property is traced from 1968. The Trial court observed there is a discrepancy in area of

Page No.10 suit property House No.1-7-1002/37. The area was mentioned

as 287.15 in Ex.A8. In Ex.A6 it is mentioned that 307.29. The

other point raised is that the commissioner report is biased

Smt.K.Uma Rani and her Advocate were not present when commissioner had visited the spot.

18.Now this court has to see the location of the property, situation of the property with reference to the documents filed by both parties. Smt.K.Uma Rani plaintiff in O.S.No.3417/2003 is examined as PW1. In her affidavit filed for chief examination, she had narrated all the facts mentioned in the plaint. In cross examination, she had admitted that the compound of plaintiff and defendant are abutting to each other previously. After construction of Nala and covered with slab. There is a gap in between two houses. Now that gap is suit subject for defendant Smt.Lurdhamma. It was suggested to PW1 that here sister had gifted suit property under Ex.A1 by including the area covered by drainage canal. The suggestion was denied. It is to be observed here that plaintiff is not claiming any rights over the house of Smt.Lurdhamma. The defendant

Smt.Lurdhamma is also not claiming rights over the house of

Smt.K.Uma Rani.

19.When Smt.Lurdhamma is examined in court, she had pleaded ignorance about the pleadings and documents filed in court. Earlier Smt.Lurdhamma had road towards eastern side, but it was closed by Annapurna Complex. They had not

Page No.11 objected for the same. But, it could be make out by documents that Smt.Lurdhamma was tenant in the same premises previously. Thereafter her husband purchased the property and they constructed house in the property purchased in an area of 100 sq.yards.

20.DW2 is Devadanam, husband of Smt.Lurdhamma. He is main person who knows the facts of the case of

Smt.Lurdhamma. He had purchased the site with his own funds in the name of Smt.Lurdhamma. Therefore, he had given proper answers to the questions. In cross examination, he stated that nala was laid after compound wall was constructed on western side. Prior to that his compound wall and the compound wall of Smt.K.Uma Rani were abutting to each other. Nala is passing underneath of Annapurna Complex. He further stated that Yadagiri Reddy who purchased remaining portion of House No.1-7-1002/37 closed the eastern side passage in the year 2003 and did not take any action. It shows originally they had some passage towards eastern side and yadagiri Reddy constructed his house. Road was closed.

Smt.Lurdhamma did not take any action. But, the Map appended to Ex.A7 and other sketch maps filed appended to

Ex.A2. Ex.A8 shows that the Nala is existing to the eastern side of house of Smt.Uma Rani and western side of House of

Smt.Lurdhamma. The municipality has constructed Nala and laid slab. Unlike all other people Smt.Lurdhamma is also using slab laid on Nala as approached to her house. This court

Page No.12 observed that Ex.A4 is a compromise decree between

K.Hemalatha and MCH shows that the award was passed without effecting the rights of third party.

21.Another clause shows that plaintiff shall not make further constructions without specific permission of defendant i.e.

MCH. This shows Smt.K.Uma Rani had constructed the house without permission from MCH and invoked deemed provision that case was compromised. But, the rights of defendant

Smt.Lurdhamma or any third person is not effected by the compromise decree made between K.Hemalatha and MCH.

When Smt.K.Uma Rani or her predecessor is title. K.Hemalatha permitted MCH to construct Nala and to lay a slab. They had lost their right in immovable property which was covered by nala and such space is thrown open to public. Now Smt.K.Uma

Rani cannot turn back and say that defendant cannot use the slab and Nala as approach road to her house. As such, this court finds no merits in appeal and appeal is dismissed.

22.In the result, the appeals in A.S.No. 108 of 2010 and

A.S.No.109 of 2010 are dismissed.

Dictated to the Stenographer, transcribed by her, corrected

and pronounced by me in open court on this the 12th day of August, 2015.

IX Additional Chief Judge Hyderabad.

Page No.13

Appendix of evidence

Witnesses examined

For PLAINTIFF:For DEFENDANT:

NilNil

Documents marked

For PLAINTIFF:For DEFENDANT:

Nil Nil

IX Additional Chief Judge Hyderabad.

Page No.14

DECREE IN APPEAL SUIT

IN THE COURT OF THE IX ADDITIONAL CHIEF JUDGE :

CITY CIVIL COURT:HYDERABAD

Dated this the 12th day of August'2015.

Present : Sri.M.Venkata Rama Rao, IX Additional Chief Judge,

AS NO. 109 of 2010

Between :

Smt.K.Uma Rani, W/o.Mr.K.Srinivas, aged 35 years, Occ: house hold, Resident of H.No.11-4-58, Gandhi Statue, Chilakalaguda, Secunderabad.

... Appellant

And :

Smt.Lurdhamma W/o.Mr.Ch.Devadanam aged 62 years, Occ: Household, Resident of H.No.7-1002/37, Ramnagar, Hyderabad.

... Respondent

Appeal filed against the judgment and decree passed in

OS No.3417 of 2003 dt.22.12.2009, on the file of the Court of

the X Junior Civil Judge, City Civil Court, Hyderabad.

OS No. 3417 of 2003

Between :

Smt.K.Uma Rani, W/o.Mr.K.Srinivas, aged 35 years, Occ: house hold, Resident of H.No.11-4-58, Gandhi Statue, Chilakalaguda, Secunderabad.

... Plaintiff

And :

Smt.Lurdhamma W/o.Mr.Ch.Devadanam aged 62 years, Occ: Household, Resident of H.No.7-1002/37, Ramnagar, Hyderabad.

... Defendant

Page No.15

Claim : Appeal filed by the appellant praying to this court to allow the appeal by setting side the judgment and decree passed in OS No.3417 of 2003 dt.22.12.2009, on the file of the Court of the X Junior Civil Judge, City

Civil Court, Hyderabad.

Valuation : The appeal is valued for an amount of Rs.15,000/- and a court fee of Rs.1,111/- is paid Under Section 49 (1) of A.P.C.F. and S.V.Act.

Appeal presented on : 8.2.2010

Appeal numbered on : 3.4.2010

This appeal coming on before me for final disposal in the presence of Sri.K.Simon Preet Kumar, Advocate for the

Appellant, and of Sri.S.Bala Chander, advocate for Respondent, and the matter having been stood over for consideration till this day, this Court doth order and decree as follows :-

1. That the appeal filed by the appellant be and the same is hereby dismissed.

2. That there shall be no order as to costs.

Given under my hand and the seal of the court on this the 12th day of August' 2015.

IX Additional Chief Judge, City Civil Court, Hyderabad.

Page No.16

Costs of the Appeal

For Appellant.For

Respondent

1. Stamp on appeal.Rs. 1,111/- --

2. Stamp on power.Rs. 2/- 2/-

3. Advocate's fees.Rs. ---

4. Stamp on process.Rs. 50 --

5. Misc. expenses.Rs.50 -- ----------------------------------------------------------------------- Total : Rs. 1,213/- 2/- ----------------------------------------------------------------------

IX Additional Chief Judge, City Civil Court, Hyderabad.

Page No.17

DECREE IN APPEAL SUIT

IN THE COURT OF THE IX ADDITIONAL CHIEF JUDGE :

CITY CIVIL COURT:HYDERABAD

Dated this the 12th day of August'2015.

Present : Sri.M.Venkata Rama Rao, IX Additional Chief Judge,

AS NO. 108 of 2010

Between :

Smt.K.Uma Rani, W/o.Mr.K.Srinivas, aged 35 years, Occ: house hold, Resident of H.No.11-4-58, Gandhi Statue, Chilakalaguda, Secunderabad.

... Appellant

And :

Smt.Lurdhamma W/o.Mr.Ch.Devadanam aged 62 years, Occ: Household, Resident of H.No.7-1002/37, Ramnagar, Hyderabad.

... Respondent

Appeal filed against the judgment and decree passed in

OS No.3421 of 2003 dt.22.12.2009, on the file of the Court of

the X Junior Civil Judge, City Civil Court, Hyderabad.

OS No. 3421 of 2003

Between :

Smt.K.Uma Rani, W/o.Mr.K.Srinivas, aged 35 years, Occ: house hold, Resident of H.No.11-4-58, Gandhi Statue, Chilakalaguda, Secunderabad.

... Plaintiff

And :

Smt.Lurdhamma W/o.Mr.Ch.Devadanam aged 62 years, Occ: Household, Resident of H.No.7-1002/37, Ramnagar, Hyderabad.

... Defendant

Page No.18

Claim : Appeal filed by the appellant praying to this court to allow the appeal by setting side the judgment and decree passed in OS No.3421 of 2003 dt.22.12.2009, on the file of the Court of the X Junior Civil Judge, City

Civil Court, Hyderabad.

Valuation : The appeal is valued for an amount of Rs.10,000/- and a court fee of Rs.820/- is paid Under Section 49 (1) of A.P.C.F. and S.V.Act.

Appeal presented on : 8.2.2010

Appeal numbered on : 3.4.2010

This appeal coming on before me for final disposal in the presence of Sri.K.Simon Preet Kumar, Advocate for the

Appellant, and of Sri.S.Bala Chander, advocate for Respondent, and the matter having been stood over for consideration till this day, this Court doth order and decree as follows :-

1. That the appeal filed by the appellant be and the same is hereby dismissed.

2. That there shall be no order as to costs.

Given under my hand and the seal of the court on this the 12th day of August' 2015.

IX Additional Chief Judge, City Civil Court, Hyderabad.

Page No.19

Costs of the Appeal

For Appellant.For

Respondent

1. Stamp on appeal.Rs. 1,111/- --

2. Stamp on power.Rs. 2/- 2/-

3. Advocate's fees.Rs. ---

4. Stamp on process.Rs. 50 --

5. Misc. expenses.Rs.50 -- ----------------------------------------------------------------------- Total : Rs. 1,213/- 2/- ----------------------------------------------------------------------

IX Additional Chief Judge, City Civil Court, Hyderabad.

Page No.1

In the Court of the IX Additional Chief Judge

City Civil Court : Hyderabad.

Present : Sri.M.Venkata Rama Rao IX Additional Chief Judge

Dated the 12th day of AUGUST, 2015.

AS.NO.108 OF 2010

AND

AS NO. 109 of 2010

AS NO. 108 of 2010

Between :

Smt.K.Uma Rani, W/o.Mr.K.Srinivas, aged 35 years, Occ: house hold, Resident of H.No.11-4-58, Gandhi Statue, Chilakalaguda, Secunderabad.

... Appellant

And :

Smt.Lurdhamma W/o.Mr.Ch.Devadanam aged 62 years, Occ: Household, Resident of H.No.7-1002/37, Ramnagar, Hyderabad.

... Respondent

Appeal filed against the judgment and decree passed in

OS No.3421 of 2003 dt.22.12.2009, on the file of the Court of

the X Junior Civil Judge, City Civil Court, Hyderabad.

OS No. 3421 of 2003

Between :

Smt.Lurdhamma W/o.Mr.Ch.Devadanam aged 62 years, Occ: Household, Resident of H.No.7-1002/37, Ramnagar, Hyderabad.

... Plaintiff

And :

Smt.K.Uma Rani, W/o.Mr.K.Srinivas, aged 35 years, Occ: house hold, Resident of H.No.11-4-58,

Page No.2

Gandhi Statue, Chilakalaguda, Secunderabad.

... Defendant

This appeal coming on before me for final hearing in the presence of Sri.K.Simon Preet Kumar, Advocate for the

Appellant, and of Sri.S.Bala Chander, advocate for Respondent, and the matter having been stood over for consideration till this day this Court delivered the following:

A.S.NO.109 OF 2010

Between :

Smt.K.Uma Rani, W/o.Mr.K.Srinivas, aged 35 years, Occ: house hold, Resident of H.No.11-4-58, Gandhi Statue, Chilakalaguda, Secunderabad.

... Appellant

And :

Smt.Lurdhamma W/o.Mr.Ch.Devadanam aged 62 years, Occ: Household, Resident of H.No.7-1002/37, Ramnagar, Hyderabad.

... Respondent

Appeal filed against the judgment and decree passed in

OS No.3417 of 2003 dt.22.12.2009, on the file of the Court of

the X Junior Civil Judge, City Civil Court, Hyderabad.

OS No. 3417 of 2003

Between :

Smt.K.Uma Rani, W/o.Mr.K.Srinivas, aged 35 years, Occ: house hold, Resident of H.No.11-4-58, Gandhi Statue, Chilakalaguda, Secunderabad.

... Plaintiff

And :

Smt.Lurdhamma W/o.Mr.Ch.Devadanam aged 62 years, Occ: Household, Resident of H.No.7-1002/37, Ramnagar, Hyderabad.

... Defendant

Page No.3

This appeal coming on before me for final hearing in the presence of Sri.K.Simon Preet Kumar, Advocate for the

Appellant, and of Sri.S.Bala Chander, advocate for Respondent, and the matter having been stood over for consideration till this day this Court delivered the following:

COMMON JUDGMENT

A.S.108 OF 2010

1.This is an appeal preferred against the judgment and decree passed in OS No.3421 of 2003 dt.22.12.2009, on the file of the Court of the X Junior Civil Judge, City Civil Court,

Hyderabad.

A.S.NO.109 OF 2010

This is an appeal preferred against the judgment and decree passed in OS No.3417 of 2003 dt.22.12.2009, on the file of the Court of the X Junior Civil Judge, City Civil Court,

Hyderabad.

2.The Judgment is assailed on the following grounds :

1. The Judgment under appeal is bad in law, and is against the evidence on record and probabilities of the case.

2. The Trial Court Judge, has not properly appreciated the documents on record the evidence on record of the appellant, plaintiff herein, in its proper perspective.

3. The Trial Court Judge, has failed to take into consideration exhibits Ex.B1 and B2 and the link

Page No.4 document (which is marked as Ex.A6 in

O.S.NO.3421/2003) marked on behalf of the respondent

herein. The link document marked on behalf of the respondent herein clearly shows that there is no opening on the western side of respondents property.

4. The Trial court Judge, has failed to take into consideration, the evidence of DW2 on behalf of the respondent herein, who categorically admitted that DW2 (husband of the respondent herein) and the respondent herein, never used the western side of their property and the nala as ingress and egress.

5. The Learned Trial Court Judge, has failed to take into consideration of evidence of DW2 (cross examination) that prior to laying of the nala, the compound wall of the appellant herein (in respect of the suit schedule property) and the compound wall of the respondent property were touching each other, which clearly shows that the existing Nala is passing through the property of the appellant herein and that there is no thorough fare through the property of the appellant herein, in view of the admission of DW1 and DW2 that the Nala is not passing through the property of the respondent herein.

6. The Trial Court Judge, erred in ignoring the evidence of

PW1 the appellant herein, who stated that the 'Nala' is laid through the suit schedule property.

7. The Trial Court has failed to take into consideration

Ex.A4 and A5 which is Judgment and Decree in

Page No.5

O.S.NO.280/1987, which was settled in Lok Adalath

(which litigation was between the appellant herein and

GHMC, for regularising the construction made in the suit schedule property).

8. The Trial Court Judge, has failed to take into consideration that the suit filed by the respondent herein against the GHMC was dismissed.

3.The O.S.No.3417 of 2003 is filed for grant of perpetual injunction restraining the defendant and her workmen etc., from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule premises.

4.The averments made in the plaint, in brief, are that the plaintiff is the absolute owner and possessor of the suit schedule premises bearing No.1-7-1002/37/A/1, admeasuring 307 sq.yards situated at Ramnagar, Hyderabad by virtue of a registered Gift deed bearing No.3230/2002. The vendor of the plaintiff purchased the property under a registered sale deed bearing document No.6728/1980 dated 3.7.1980 from one

Ch.Vidyasagar. He had also constructed wall and rooms in the year 1987, but when the MCH authorities tried to demolish the wall, the donor of the plaintiff filed a suit in O.S.NO.280/1987 and obtained interim injunction. Later, the said suit was settled

before Lok Adalat on 8.3.1988.

5.It is also stated that the father of Ch.Vidyasagar

Page No.6 purchased the suit schedule property from one G.Srinivasa Rao and others under a registered sale deed No.1555/1968 dated 22.5.1968. Hence, the plaintiff her donor and vendor of the donor have been in possession and enjoyment of the suit schedule property for more than 35 years.

6.That the defendant constructed a building illegally without permission on the eastern side of the suit schedule premises by grabbing the land of the northern side neighbour.

On 7.5.2003, the defendant came to the suit schedule premises, and threatened the watchman and tenants of the plaintiff, but the plaintiff resisted their illegal attempts with the help of her co-brother. But the defendant while leaving the premises stated that they would come and demolish the suit schedule premises. On 9.5.2003 at about 11.00 am the defendant came to the suit schedule premises along with some un-social elements abused the plaintiff, watchman family members in filthy language and tried to demolish the compound wall, but the plaintiff along with her watchman resisted the illegal attempts of the defendant. The plaintiff and her husband immediately rushed to Musheerabad Police

Station and presented a report but the police advised them to go to the Civil Court as the dispute is of Civil nature. Hence, the suit.

7.Written statement is filed on behalf of the defendant refuting the averments made in the plaint and further

Page No.7 contended inter-alia as follows. Admittedly, the extent of the suit schedule property is 287.50 sq.yards as per the link documents, but the same was shown as 307 sq.yards in the gift deed executed in favour of the plaintiff by her donor. The defendant has no knowledge as to how the donor of the plaintiff became the owner of the property and whether she was in possession of the said property. The defendant has no knowledge about the construction of the compound wall and the rooms in the year 1987 in the suit schedule property. The defendant constructed a building consisting of ground floor and first floor at the first instance and subsequently second floor in her own site admeasuring 100 sq.yards with the permission granted by MCH. There was a nala flowing in the land belongs to the MCH and, therefore, there is no question of encroaching the property.

8.It is stated that by filing the suit, the plaintiff was trying to obstruct the passage of the defendant from her house and the said nala which was covered with cement state (road) is the only passage to got to the house of the defendant, and the same is a Government property for which the plaintiff has no right. The defendant has no knowledge about the complaint made by the plaintiff and she never went to the property of the plaintiff on 9.5.2003. On a oral complaint given by the defendant, the Musheerabad police came to the spot and warned the plaintiff and directed them not to create any obstructions in using the passage by the defendant. There is

Page No.8 no cause of action arose for filing this suit. The plaintiff has not come to the court with clean hands. Finally, it is prayed that the suit may be dismissed.

9.O.S.No.3421/2003 is filed by the defendant in

O.S.NO.3417/2003 praying the court to grant permanent

injunction restraining the plaintiff in O.S.NO.3417/2003 her subordinates etc from interfering and obstructing her peaceful possession and enjoyment of the passage situated in front of her gate, reiterating the contents made in the written statement filed in O.S.NO.3417/2003. The defendant, who is the plaintiff in O.S.No.3417/2003 also filed a written statement reiterating the averments made in the plaint.

10.Basing on the above pleadings in O.S.NO.3417/2003, the

Trial court had framed the following issues :

1. Whether the plaintiff is the possessor of the suit schedule property. If so she is entitled to the relief of perpetual injunction?

2. Whether the suit is under valued?

3. Whether there is any cause of action to file the suit?

4. To what relief?

11.Basingontheabovepleadingsin

O.S.NO.3421/2003, the Trial court had framed the following

issues :

Page No.9

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

2. To what relief?

12.During the course of trial in O.S.No.3417/2003, on behalf of plaintiff, she examined herself as PW1 and got marked

Exs.A1 to A9. On behalf of defendant, Dws.1 and 2 were examined and got marked Exs.B1 and B2.

13.During the course of trial in O.S.No.3421/2003, on behalf of plaintiff, she examined herself as PW1, and got examined

PW2 and got marked Exs.A1 to A6. On behalf of defendant,

Dws.1 is examined, but no documents are marked.

14.Arguments are heard for both.

15.The suit filed by Smt.K.Uma Rani is dismissed and decreed the suit filed by Smt.Lurdhamma.

16.Now the point for consideration is whether Trial Court had committed any error in giving findings in dismissing the suit of Smt.K.Uma Rani and declaring the suit of

Smt.Lurdhamma.

17.It is to be seen here that Smt.K.Uma Rani got the property under a gift deed. Her title to property is traced from 1968. The Trial court observed there is a discrepancy in area of

Page No.10 suit property House No.1-7-1002/37. The area was mentioned

as 287.15 in Ex.A8. In Ex.A6 it is mentioned that 307.29. The

other point raised is that the commissioner report is biased

Smt.K.Uma Rani and her Advocate were not present when commissioner had visited the spot.

18.Now this court has to see the location of the property, situation of the property with reference to the documents filed by both parties. Smt.K.Uma Rani plaintiff in O.S.No.3417/2003 is examined as PW1. In her affidavit filed for chief examination, she had narrated all the facts mentioned in the plaint. In cross examination, she had admitted that the compound of plaintiff and defendant are abutting to each other previously. After construction of Nala and covered with slab. There is a gap in between two houses. Now that gap is suit subject for defendant Smt.Lurdhamma. It was suggested to PW1 that here sister had gifted suit property under Ex.A1 by including the area covered by drainage canal. The suggestion was denied. It is to be observed here that plaintiff is not claiming any rights over the house of Smt.Lurdhamma. The defendant

Smt.Lurdhamma is also not claiming rights over the house of

Smt.K.Uma Rani.

19.When Smt.Lurdhamma is examined in court, she had pleaded ignorance about the pleadings and documents filed in court. Earlier Smt.Lurdhamma had road towards eastern side, but it was closed by Annapurna Complex. They had not

Page No.11 objected for the same. But, it could be make out by documents that Smt.Lurdhamma was tenant in the same premises previously. Thereafter her husband purchased the property and they constructed house in the property purchased in an area of 100 sq.yards.

20.DW2 is Devadanam, husband of Smt.Lurdhamma. He is main person who knows the facts of the case of

Smt.Lurdhamma. He had purchased the site with his own funds in the name of Smt.Lurdhamma. Therefore, he had given proper answers to the questions. In cross examination, he stated that nala was laid after compound wall was constructed on western side. Prior to that his compound wall and the compound wall of Smt.K.Uma Rani were abutting to each other. Nala is passing underneath of Annapurna Complex. He further stated that Yadagiri Reddy who purchased remaining portion of House No.1-7-1002/37 closed the eastern side passage in the year 2003 and did not take any action. It shows originally they had some passage towards eastern side and yadagiri Reddy constructed his house. Road was closed.

Smt.Lurdhamma did not take any action. But, the Map appended to Ex.A7 and other sketch maps filed appended to

Ex.A2. Ex.A8 shows that the Nala is existing to the eastern side of house of Smt.Uma Rani and western side of House of

Smt.Lurdhamma. The municipality has constructed Nala and laid slab. Unlike all other people Smt.Lurdhamma is also using slab laid on Nala as approached to her house. This court

Page No.12 observed that Ex.A4 is a compromise decree between

K.Hemalatha and MCH shows that the award was passed without effecting the rights of third party.

21.Another clause shows that plaintiff shall not make further constructions without specific permission of defendant i.e.

MCH. This shows Smt.K.Uma Rani had constructed the house without permission from MCH and invoked deemed provision that case was compromised. But, the rights of defendant

Smt.Lurdhamma or any third person is not effected by the compromise decree made between K.Hemalatha and MCH.

When Smt.K.Uma Rani or her predecessor is title. K.Hemalatha permitted MCH to construct Nala and to lay a slab. They had lost their right in immovable property which was covered by nala and such space is thrown open to public. Now Smt.K.Uma

Rani cannot turn back and say that defendant cannot use the slab and Nala as approach road to her house. As such, this court finds no merits in appeal and appeal is dismissed.

22.In the result, the appeals in A.S.No. 108 of 2010 and

A.S.No.109 of 2010 are dismissed.

Dictated to the Stenographer, transcribed by her, corrected

and pronounced by me in open court on this the 12th day of August, 2015.

IX Additional Chief Judge Hyderabad.

Page No.13

Appendix of evidence

Witnesses examined

For PLAINTIFF:For DEFENDANT:

NilNil

Documents marked

For PLAINTIFF:For DEFENDANT:

Nil Nil

IX Additional Chief Judge Hyderabad.

Page No.14

DECREE IN APPEAL SUIT

IN THE COURT OF THE IX ADDITIONAL CHIEF JUDGE :

CITY CIVIL COURT:HYDERABAD

Dated this the 12th day of August'2015.

Present : Sri.M.Venkata Rama Rao, IX Additional Chief Judge,

AS NO. 109 of 2010

Between :

Smt.K.Uma Rani, W/o.Mr.K.Srinivas, aged 35 years, Occ: house hold, Resident of H.No.11-4-58, Gandhi Statue, Chilakalaguda, Secunderabad.

... Appellant

And :

Smt.Lurdhamma W/o.Mr.Ch.Devadanam aged 62 years, Occ: Household, Resident of H.No.7-1002/37, Ramnagar, Hyderabad.

... Respondent

Appeal filed against the judgment and decree passed in

OS No.3417 of 2003 dt.22.12.2009, on the file of the Court of

the X Junior Civil Judge, City Civil Court, Hyderabad.

OS No. 3417 of 2003

Between :

Smt.K.Uma Rani, W/o.Mr.K.Srinivas, aged 35 years, Occ: house hold, Resident of H.No.11-4-58, Gandhi Statue, Chilakalaguda, Secunderabad.

... Plaintiff

And :

Smt.Lurdhamma W/o.Mr.Ch.Devadanam aged 62 years, Occ: Household, Resident of H.No.7-1002/37, Ramnagar, Hyderabad.

... Defendant

Page No.15

Claim : Appeal filed by the appellant praying to this court to allow the appeal by setting side the judgment and decree passed in OS No.3417 of 2003 dt.22.12.2009, on the file of the Court of the X Junior Civil Judge, City

Civil Court, Hyderabad.

Valuation : The appeal is valued for an amount of Rs.15,000/- and a court fee of Rs.1,111/- is paid Under Section 49 (1) of A.P.C.F. and S.V.Act.

Appeal presented on : 8.2.2010

Appeal numbered on : 3.4.2010

This appeal coming on before me for final disposal in the presence of Sri.K.Simon Preet Kumar, Advocate for the

Appellant, and of Sri.S.Bala Chander, advocate for Respondent, and the matter having been stood over for consideration till this day, this Court doth order and decree as follows :-

1. That the appeal filed by the appellant be and the same is hereby dismissed.

2. That there shall be no order as to costs.

Given under my hand and the seal of the court on this the 12th day of August' 2015.

IX Additional Chief Judge, City Civil Court, Hyderabad.

Page No.16

Costs of the Appeal

For Appellant.For

Respondent

1. Stamp on appeal.Rs. 1,111/- --

2. Stamp on power.Rs. 2/- 2/-

3. Advocate's fees.Rs. ---

4. Stamp on process.Rs. 50 --

5. Misc. expenses.Rs.50 -- ----------------------------------------------------------------------- Total : Rs. 1,213/- 2/- ----------------------------------------------------------------------

IX Additional Chief Judge, City Civil Court, Hyderabad.

Page No.17

DECREE IN APPEAL SUIT

IN THE COURT OF THE IX ADDITIONAL CHIEF JUDGE :

CITY CIVIL COURT:HYDERABAD

Dated this the 12th day of August'2015.

Present : Sri.M.Venkata Rama Rao, IX Additional Chief Judge,

AS NO. 108 of 2010

Between :

Smt.K.Uma Rani, W/o.Mr.K.Srinivas, aged 35 years, Occ: house hold, Resident of H.No.11-4-58, Gandhi Statue, Chilakalaguda, Secunderabad.

... Appellant

And :

Smt.Lurdhamma W/o.Mr.Ch.Devadanam aged 62 years, Occ: Household, Resident of H.No.7-1002/37, Ramnagar, Hyderabad.

... Respondent

Appeal filed against the judgment and decree passed in

OS No.3421 of 2003 dt.22.12.2009, on the file of the Court of

the X Junior Civil Judge, City Civil Court, Hyderabad.

OS No. 3421 of 2003

Between :

Smt.K.Uma Rani, W/o.Mr.K.Srinivas, aged 35 years, Occ: house hold, Resident of H.No.11-4-58, Gandhi Statue, Chilakalaguda, Secunderabad.

... Plaintiff

And :

Smt.Lurdhamma W/o.Mr.Ch.Devadanam aged 62 years, Occ: Household, Resident of H.No.7-1002/37, Ramnagar, Hyderabad.

... Defendant

Page No.18

Claim : Appeal filed by the appellant praying to this court to allow the appeal by setting side the judgment and decree passed in OS No.3421 of 2003 dt.22.12.2009, on the file of the Court of the X Junior Civil Judge, City

Civil Court, Hyderabad.

Valuation : The appeal is valued for an amount of Rs.10,000/- and a court fee of Rs.820/- is paid Under Section 49 (1) of A.P.C.F. and S.V.Act.

Appeal presented on : 8.2.2010

Appeal numbered on : 3.4.2010

This appeal coming on before me for final disposal in the presence of Sri.K.Simon Preet Kumar, Advocate for the

Appellant, and of Sri.S.Bala Chander, advocate for Respondent, and the matter having been stood over for consideration till this day, this Court doth order and decree as follows :-

1. That the appeal filed by the appellant be and the same is hereby dismissed.

2. That there shall be no order as to costs.

Given under my hand and the seal of the court on this the 12th day of August' 2015.

IX Additional Chief Judge, City Civil Court, Hyderabad.

Page No.19

Costs of the Appeal

For Appellant.For

Respondent

1. Stamp on appeal.Rs. 1,111/- --

2. Stamp on power.Rs. 2/- 2/-

3. Advocate's fees.Rs. ---

4. Stamp on process.Rs. 50 --

5. Misc. expenses.Rs.50 -- ----------------------------------------------------------------------- Total : Rs. 1,213/- 2/- ----------------------------------------------------------------------

IX Additional Chief Judge, City Civil Court, Hyderabad.

1AS No. 365­13

IN THE COURT OF THE III ADDITIONAL CHIEF JUDGE: CITY

CIVIL COURT: HYDERABAD

Dated this the 17th day of August, 2015

Present: Sri M.VENKATA RAMA RAO

IX Addl. Chief Judge, CCC, Hyderabad

FAC III Additional Chief Judge, CCC, Hyderabad

AS No. 365 of 2013

Between :

Krishna Yadav ...Appellant

A N D

Smt Satwanthi Bai @ Saraswathi Bai... Respondent

ON APPEAL AGAINST THE JUDGMENT AND DECREE IN OS NO. 480 OF 2007

dt. 27.09.2013 ON THE FILE OF THE VI SENIOR CIVIL JUDGE, CITY SMALL

CAUES COURT AT : HYDERABAD

OS No. 480 of 2007

Between :

Smt Satwanthi Bai @ Saraswathi Bai...Plaintiff

A N D

Krishna Yadav ....Defendant

This appeal is coming on this day before me for final hearing in the presence of Sri Ashwin Kumar Jaiswal, advocate for the Appellant, and Sri

Vijay Maski, Advocate for Respondent and the matter having stood over for consideration till this day, this Court delivered the following :-

JUDGMENT

1)This is an appeal filed by the appellant against the respondent against the judgment and decree passed by the VI Senior Civil Judge, City

Small Causes Court, Hyderabad on the following grounds:-

2)The appellant contends that the lower court failed to appreciate the documents filed by the appellant which goes into the root cause into the case and as well as proper adjudication through this court has struck off the defence of the appellant herein by virtue of its order as envisage under 2AS No. 365­13 provision of C.P.C though the learnt court would have been pass judgment and decree on the basis of material on record, but the learned judge has fails to do so and pass the judgment and decree which is liable to be set aside.

3)It is also contended that the lower court has wrongly considered the evidence of Pw.1 along with documents which clearly shows that they are defective in nature and liable to be discarded inspite of that the court has allow the said suit is liable to be set aside.

4)The lower court has also failed to appreciate that the notice itself is bad in law and defective as sent under Section 106 of T P Act because the said notice has no application as the said premises under occupation of the appellant is small scale industry and as such giving notice of one month is bad and same is liable to be dismissed, but the lower court has not considered the same and passed judgment and decree is liable to be set aside.

5)The appellant stated that the appellant was not given opportunity for the cross of Pw.1 and on his evidence only the lower court has passed judgment and decree is liable to be set aside and the appellant is not in arrears of rent and nor committed any default. The same has not been considered is liable to be set aside.

The case of plaintiff before Trial Court:-

6)The plaint averments in brief are that the defendant is the tenant occupying the open terrace on the second floor of property bearing 3AS No. 365­13

Municipal No.21-1-252 to 263, having plinth area of about 2700 sq. feet, situated at Rikab Gunj, Hyderabad. That in the month of November, 1999 defendant has obtained the above premises from plaintiff originally on a monthly rent of Rs.2000/- for the purpose of carrying on the business of

Polishing Sarees and all the negotiations relating to the tenancy was done by the son and general power of attorney holder of plaintiff Sri Nitin

Sariwala. The defendant has agreed to pay the monthly rent on or before 10th of every English calendar month to plaintiff or his son Nitin Sariwala.

The monthly rent is exclusive of electricity charges which defendant had agreed to pay to the concerned department as per the demand of the respective departments. There is separate electricity meter to the demised premises. The defendant has agreed not to sublet the property to the third parties and also agreed to enhance the monthly rent every year by 10% on the existing rent. Originally the rent for the above referred premises as agreed was Rs.2000/- from 01.11.1999 to 31.10.2000. Thereafter the rent was mutually enhanced every year @ 10% on the existing rent and defendant was payable the rents at the following rates:

from 01.11.1999 to 31.10.2000 the rent payable was Rs.2,000/- per month.

From 01.11.2000 to 31.10.2001 the rent payable was Rs.2,200/- per month.

From 01.11.2001 to 31.10.2002 the rent payable was Rs.2,420/- per month.

From 01.11.2002 to 31.10.2003 the rent payable was Rs.2,662/- per month

From 01.11.2003 to 31.10.2004 the rent payable was Rs.2,928/- per month.

From 01.11.2004 to 31.10.2005 the rent payable was Rs.3,220/- per month.

From 01.11.2005 to 31.10.2006 the rent payable was Rs.3,542/- per month.

From 01.11.2006 to 28.02.2007 the rent payable was Rs.3,896/- per month.

7)It is further submitted that the first and second floors of the property 4AS No. 365­13 was constructed in the year 1999. Prior to the construction since the year 1994 defendant was in the occupation of the portion of terrace of the ground floor and a small room on the terrace of the ground floor in the above referred premises and was lastly paying the monthly rent of

Rs.2,000/- per month for the said portion under his occupation. The arrangement and agreement defendant has vacated the terrace and the room on terrace of the ground floor in the month of September, 1997 and has handed over the possession to the plaintiff.

8)It is further submitted that alternatively plaintiff has provided to the defendant the mulgi No.21-1-255/A on the ground floor of the above referred premises. After the construction of the first and second floor in the above year 1999 defendant had approached plaintiff and had obtained the above referred premises on rent. Since the inception of tenancy defendant were irregular in payment of rents. The defendant had lastly paid the rents for the premises for the period from 01.09.2003 to 30.09.2003 at Rs.

2,662/- and thereafter defendant has failed to pay the rents for subsequent months. Plaintiff has several times demanded defendant to pay the arrears of rents but every time defendant has evaded to pay the same on one pretext or the other. Therefore, defendant has defaulted in payment of rents from 01.10.2003 onwards and has not paid any amount to the plaintiff towards rents. Though the defendant has failed to pay the rents from 01.10.2003 onwards but plaintiff is advised to state that in view of the law of limitation, plaintiff is restricting her claims for arrears of rents from 01.03.2004 onwards till 28.02.2007, the defendant is due and liable to pay rents fro the period from 01.03.2004 to 28.02.2007. For the period from 5AS No. 365­13 01.03.2004 to 28.02.2007, defendant is due and payable to the plaintiff an amount of Rs.1,20,152/- and the defendant is also liable to pay interest at 12% per annum on the arrears of rent.

9)It is further submitted that as per the agreed terms, the defendant is bound to deliver and handover to the plaintiff authenticated copies of the bills and payment receipts relating to payment of municipal property taxes, electricity consumption charges and water consumption charges, but defendant always defaulted in the same. In view of the non-payment of the rents and also the breaches committed by the defendant, plaintiff has got issue the legal notice dt. 05.02.2007 under registered post acknowledgment due to the defendant, calling upon the defendant to pay the arrears of rent and also terminated the tenancy of the defendant at the end of 28th February, 2007 and the defendant was called upon to deliver actual physical vacant possession of the suit premises on the morning of 1st March, 2007. The defendant was also informed that in the event of his failure to vacate the suit premises he would be liable to pay damages and compensation for wrongful use and occupation at the rate of Rs.8000/- per month. The said notice was sent to the defendant at the residential address given by the defendant at the time of commencement of tenancy and also at the suit schedule property. The notice sent to the defendant to the residential address was returned unserved by the postal department with the endorsement that addressee left and the notice sent at the suit schedule premises was received by the defendant on 06.02.2007. Inspite of the receipt of the legal notice dt.05.02.2007 defendant has failed to comply with the demands made in the registered legal notice. Hence, the suit.

6AS No. 365­13

Case of defendant :

11)Basing on the above pleadings the following issues are framed for trial by the Trial court:

1) Whether the quit notice issued by the plaintiff is defective and in valid under Section 106 of T P Act as contended by the defendant?

2) Whether the plaintiff is entitled to the decree of eviction of the defendant from the suit schedule property?

3) Whether the defendant is not in the arrears of rents amounting to

Rs.1,20,152/-?

4) Whether the plaintiff is entitled for interest on the arrears of rents?

5) Whether the plaintiff is entitled to recover Rs.8,000/- p.m towards mesne profits and damages and compensation for wrongful use and occupation of the defendant in the suit schedule property from the date of the eviction?

6) To what relief?

12)To substantiate the case of the plaintiff, the son and GPA holder of the plaintiff was examined as Pw.1 and Exs A.1 to A.7 are marked. No oral or documentary evidence was adduced on behalf of the defendant.

13)Now the point for consideration is Whether the trial court judgment suffers any material irregularity?

14) POINT : It is to be noted here that as observed by the Trial Court the appellant was directed to deposit arrears of rent of Rs.1,22,152/- in IA No.

130 of 2007 and further directed to deposit Rs.8,000/- per month till further orders. Subsequently the Trial Court had ordered In IA No. 33 of 2012 to deposit the admitted rents. The defendant in the suit had failed to comply with the orders of the trial court. For non compliance of orders in IA No.

33 of 2012 the defence was striken off and it was not challenged. Till today 7AS No. 365­13 no steps have been taken by appellant to comply with the orders of the court. There is no evidence adduced to show that he had paid the rents as directed by the Trial Court. In such circumstances the court had taken evidence of Pw.1 and Exs A.1 to A.7 into consideration and decreed the suit ordering for eviction of appellant herein. When defence of appellant is striken off by the Trial Court and the order had become final. The scope of appeal had been narrowed. The appellant cannot challenge the judgment and decree of the Trial Court on facts. Now there remains only legal question that whether the Trial Court had jurisdiction to entertain the suit.

If we see the judgment of the Trial Court, the issues framed are whether the Quit Notice issued under Section 106 of Transfer of Property Act is in valid. Whether the plaintiff is entitled to decree for eviction.

15)The other issues are with regard to quantum of rents and arrears to be paid. The question before this court is only with regard to application of the Rent Control Act. Whether the Trial Court has jurisdiction to try the case or Rent Control Court has jurisdiction to try the suit. In the plaint it is specifically pleaded that the rent payable by the defendant is under following rates.

from 01.11.1999 to 31.10.2000 the rent payable was Rs.2,000/- per month.

From 01.11.2000 to 31.10.2001 the rent payable was Rs.2,200/- per month.

From 01.11.2001 to 31.10.2002 the rent payable was Rs.2,420/- per month.

10)The defendant filed written statement denying the averments made in the plaint and contended that the plaintiff is hale and healthy and she is able to understand all the proceedings of court and she is also well acquainted with regards to all the information and negotiations and in respect of the entire property including the suit schedule property and as 8AS No. 365­13 such the alleged GPA in question which is existence purportedly created by her attorney and filed before this court. It is denied that presently defendant is the tenant occupying the open terrace on the second floor of the property MCH No.21-1-212 to 263 having plinth area of about 27,000 sq. feet situated at Rikabgunj, Hyderabad. That in the month of November, 1999 the defendant has obtained the premises from the plaintiff on a monthly rent of Rs.2000/- for the purpose of carrying the business of

Polishing Sarees. It is denied that the defendant has agreed to enhance the rent at the rate of 10% on existing rent after the expiry of the said rental deed. With regard to the construction in the year 1999 and also previous to the construction since 1994 defendant was in the occupation of the terrace of the ground of the floor and a small room existing thereon is not disputed, and also not disputed by the defendant that as per the agreement defendant had vacated the said premises and in the month of September, 1997 and handed over the same to her. It is further submitted that alternatively plaintiff provided to mulgi No.21-1-255/A on the ground floor of the premises on a monthly rent and after construction first and second floors in the year 1999 defendant have been provided occupation on the terrace along with the room thereon on a said monthly rent as agreed and also let out the ground floor mulgi to the defendant on a separate monthly rent and as such there is a no composite lease connecting the ground floor mulgi and the terrace portion as one and same, and as such alleging that the said two separate portions are one and same which are under occupation of the defendant are false and their leases are separate. It is denied that the notice issued by the plaintiff itself is in defective and as such the plaintiff cannot seek the provision of law under Section 106 of T P 9AS No. 365­13

Act and when the notice itself is not at all applicable with the present suit schedule premises because the defendant is carrying the said business on the terrace along with a room thereof as a small scale industry under due license and as such the notice which is given by the plaintiff for a period of one month itself is bad in law and same is to be rejected and cannot be taken into consideration for seeking the eviction of the defendant. It is denied all the contents thereof, and as such the plaintiff cannot seek to receive an amount of Rs.8,000/- towards damages and compensation for the wrongful use and occupation and also denied that the plaintiff is claiming damages for wrongful use and occupation from the date of the suit till the date of delivery of the possession. It is further submitted that there is no composite lease interconnecting the defendant are in occupation of the portions separately and the plaintiff has deliberately clubbed both the premises in the present suit though they are having separate tenancies and knowingly shown as one tenancy which is untenable. Further more the defendant is not at all a tenant of the plaintiff for the suit schedule property i.e the terrace along with room existing thereof so also the premises under the occupation of the defendant under ground floor because the plaintiff herself has agreed to sold the said properties to the defendant in the year 2002 and she received the amounts of the sale consideration from this defendant on various occasions before April, 2003. In this regard the plaintiff was refused to execute a regular sale deed whereupon this defendant has issued a notice calling upon her to execute a registered sale deed in his favour reflecting all the amounts received by her. The said letter was sent to her under certificate of posting dt. 27.05.2003. To counter blast the same the plaintiff got issued a legal notice with false allegations which 10AS No. 365­13 are not tenable in law. The defendant reserves his right to file the documents during the course of trial because the defendant has met with an accident and totally bed ridden. At this juncture he is unable to trace the documents under his custody to file before this court. The schedule shown in the plaint are also not correct and true and the plaintiff has herself as shown the same for the purpose of filing of the present false suit and this court does not have jurisdiction to entertain the present suit, because the rent as shown in the present suit which cannot be come under the jurisdiction of this court the same is liable to be dismissed.

From 01.11.2002 to 31.10.2003 the rent payable was Rs.2,662/- per month

From 01.11.2003 to 31.10.2004 the rent payable was Rs.2,928/- per month.

From 01.11.2004 to 31.10.2005 the rent payable was Rs.3,220/- per month.

From 01.11.2005 to 31.10.2006 the rent payable was Rs.3,542/- per month.

From 01.11.2006 to 28.02.2007 the rent payable was Rs.3,896/- per month.

16)The observation of table shows that every year there shall be 10% enhancement of rents. From 1999 onwards till 28.02.2007 the rate had increased and last payable rent will be Rs.3,896/- per month. That means as on the date of suit the rent payable by the defendant is Rs.3,896/- per month. It is probably proposition since there is escalation of prices and

Hyderabad had grown by leaps and bounds. The availability of premises had become scarce.

17)The learned counsel for the appellant had cited judgment in 2006

(1) ALD 145 of the Hon'ble High Court of Judicature, Andhra

Pradesh at Hyderabad between Satish Chandra Makan v. Dr. S V S

Sastry and another.

11AS No. 365­13

18)The G.O.Ms.No. 636 dt. 29.12.1983 was referred back by 17.10.2005.

The present suit is filed in the year 2007 i.e after amendment of the Act.

The Rent Control Act applies to the building when monthly rent payable is below Rs.3,500/-. If rent exceeds Rs.3,500/- the jurisdiction of the Rent

Control Act is ousted by aflux of time, in this present case as on the date of filing of the suit the rent payable is Rs.3,896/- which is above Rs.3,500/-.

Therefore, the legal point raised before this court that the Civil Court has no jurisdiction to pass judgment but the competent court is Rent Control Court is not applied. Therefore, this court holds that there is no defect or material irregularity committed by the Trial Court in ordering for eviction of the appellant herein. There are no merits in the case.

19)In the result, the appeal is dismissed with costs.

Dictated to the Stenographer, transcribed and typed by him,

corrected and pronounced by me in the open court on this the 17th day of

August , 2015.

Sd/-

(M. Venkata Rama Rao)

FAC III ADDL.CHIEF JUDGE

CITY CIVIL COURT: HYDERABAD Appendix of Evidence Witnesses examined NIL Documents Marked NIL

Sd/-

(M. Venkata Rama Rao)

FAC III ADDL.CHIEF JUDGE

CITY CIVIL COURT: HYDERABAD