IN THE COURT OF THE XX JUNIOR CIVIL JUDGE: CITY CIVIL COURT:
HYDERABAD.
MONDAY THIS THE 16th DAY OF MARCH, 2020
PRESENT : SMT. SHALINI SHAKELLI
XX JUNIOR CIVIL JUDGE
ORIGINAL SUIT No. 1756 OF 2014
Between :
1. Mahaveer Singh, S/o. Late Narayan Singh, Aged : 68 years, (Expired on 29062018) per Lrs.
2. Ashok Singh, S/o. Late Narayan Singh, Aged : 41 years, Occ:Business
Mahaveer Singh died per Lrs.,
As per Orders in IA.No. 583/2018, dt. 25072018 amendment carried out & petitioners added to the plaint as plaintiffs No.3 to 5.
3. Balaji Singh, S/o. Late Mahaveer Singh, Aged about: 36 years, Occ:Business.
4. Dinesh Singh, S/o. Late Mahaveer Singh, Aged about: 29 years, Occ: Business.
5. Maheshwari, D/o. Late Mahaveer Singh, Aged about: 26 years, Occ: Business. Upper Dhoolpet, Hyderabad.
( All are R/o. 1311070, Dhoolpet, Hyderabad ) ….Petitioners/Plaintiffs A N D
1. Ranveer Singh, S/o. Late Lakhan Singh, aged : 56 years, Occ: Business.
2. Dhanraj Singh, S/o. Late Lakhan Singh, Aged : 48 years, Occ: Business. (Both R/o. 141297, Mangalhat, Hyderabad)
3. Smt. Chandrakala, W/o. Late Mahadev Singh, Aged : 50 years, Occ:House wife.
4. Suryaneeth Singh, S/o. Late Mahadev Singh, Aged : 27 years, Occ:Business.
5. Rohit Singh, S/o. Late Mahadev Singh, Aged : 25 years, Occ:Student.
6. Shalini, D/o. Late Mahadev Singh, Aged about: 19 years, Occ:Student, (All R/o. 132268/4, Raheepura, Hyderabad).
...Defendants
This Suit is coming before me for final hearing in the presence of Sri. Sudheer Singh, Counsel for the Plaintiffs and of Sri Thakur Singh, Counsel for the Defendants No.1 and 2, and of Sri M. Vidya Sagar, Counsel for the defendants No. 3 to 6, and the mater having stood over for consideration till this day, this Court delivered following:
JUDGMENT
This suit is filed for Mandatory injunction and Perpetual Injunction restraining the defendants, their men, agents, and representatives from carrying out illegal constructions over the suit schedule property.
Brief facts of the petition are thus:
2.The Plaintiffs herein submit that they are the absolute owners and possessors of the ancestral property bearing No.141338 and 141301, situated at Mangalhat, Hyderabad.
3.It is submitted that the suit property was purchased by one Narayan Singh, who is the father of the father of the plaintiff herein by virtue of a Registered Sale
Deed document No.1686 of 1971. That after the death of the father of the plaintiffs, the plaintiffs have obtained hereditary ownership rights over the above mentioned property. It is further submitted that there is a Joint Seri of 3 feet in between the plaintiffs property and the property of defendant No.1 and 2 and that the plaintiffs have been using the said Seri as a path way to the main door. It is further submitted that the Joint Seri of 3 feet consists of doors and windows of the plaintiffs property and was exclusively used by the plaintiffs and that the defendants herein have got nothing to do with the Joint Seri.
4.It is further submitted that on 28.08.2014, the defendants No.1 and 2 have started illegal construction over the said Seri. It is further submitted that on 18.09.2014 the defendants No.1 and 2 have assured to the plaintiffs that they would not encroach the said Seri. It is further submitted that the plaintiffs have asked the defendants No.1 and 2 to stop the illegal construction and encroachment of the Seri. However the defendants No.1 and 2 continued with the act of encroachment over the Seri.
5.It is further submitted that a police complaint was lodged by the plaintiffs herein on 20.09.2014 with regard to the illegal construction over the Seri. It is further submitted that the complaint was also made before the GHMC on 25.09.2014 with regard to the encroachment. It is further submitted that the defendants No.1 and 2 have deliberately encroached and closed the passage of plaintiffs and further submitted that such encroachment would affect the easementary rights of the plaintiffs. Having no other alternative the plaintiffs filed the present suit against the defendants directing the defendants No.1 and 2 to remove illegal constructions over the suit schedule property and restrain the defendants No.1 and 2, their men, agents, and representatives from carrying out illegal constructions over the suit schedule property.
6.The defendants No.1 and 2 have filed their written statement denying all the allegations made by the plaintiff herein and further submitted that the defendants
No.1 and 2 are the absolute owners of the house bearing No.141297 admeasuring 235 Sq. yards situated at Mangalhat, Hyderabad. It is further submitted that the mother of the defendants No.1 and 2 have purchased the said property under a registered sale deed on 14.08.1971 and since then the defendants No.1 and 2 are in peaceful possession and enjoyment of the house bearing No.141297. It is further submitted that there is no Seri in existence between the Northern side of the above mentioned property. It is further submitted that the defendants No.1 and 2 are carrying out the construction legally as per the rules and regulations laid down by the municipal authorities. It is further submitted that the defendants No.1 and 2 have not encroached the land of the plaintiffs herein. It is further submitted that there is no passage to the plaintiffs property towards the Southern side of the plaintiffs property. It is further submitted that if any illegal construction is being carried out by the defendants herein, it is for the municipal cooperation to take action against the defendants
No.1 and 2 for making such illegal construction. It is further denied that the construction by the defendants No.1 and 2 is affecting the easementary rights of the plaintiffs. It is further submitted that there is no joint seri between the property of the plaintiffs and defendants No.1 and 2 herein. It is further submitted that the plaintiffs herein have no prima facie case and therefore the defendants
No.1 and 2 have sought for dismissal of the present suit.
7.The defendants No. 3 to 6 have filed their written statement denying all the allegations made by the plaintiffs. It is submitted that the defendants No.3 to 6 are the absolute owners and possessors of the suit property bearing No.141301, and property bearing No.141338, situated at Seetarampet, Mangalhat,
Hyderabad. It is further submitted that the defendant No.3 succeeded to the above mentioned property from her deceased husband by name Mahadev Singh. It is further submitted that the husband of the defendant No.3 became the absolute owner of the above mentioned property under a Compromise decree dated 23.08.1990 passed in OS.No.1856 of 1989. It is further submitted that ever since the date of Compromise Decree, the husband of the defendant No.3 has been in exclusive physical possession and enjoyment over the above mentioned property.
8. It is further submitted that under a Compromise Decree dated 23.08.1990, the husband of defendant No.3 have alloted the property bearing No.141301, and house bearing No.141338, situated at Sitarampet, Mangalhat, Hyderabad and that the plaintiff No.2 herein was alloted property bearing No.131114, admeasuring 595 Sq. yards situated at Aziz Bagh, Hyderabad towards his share.
It is further submitted that the other share holders including the plaintiff No.1 and his mother were paid consideration amounts.
9.It is further submitted that in the year 2007 the husband of defendant No.3 had let out part of the property bearing No.141301, and adjacent property bearing No. 141338 on rent. It is further submitted that during the life time of the husband of the defendant No.3, the deceased husband applied for municipal permission for erection of shetters and as the municipal cooperation had not granted permission within the stipulated time, the husband of defendant No.3 had commenced construction over the above mentioned property. It is further submitted that the suit was filed for perpetual injunction with regard to the property bearing No.141301 and that the suit was decreed in favour of the husband of defendant No.3. It is further submitted that on 28.08.2014, the defendant No.1 and 2 have started illegal construction by demolishing old structure over their property. And that the defendant No.1 and 2 started encroaching the common passage by erecting pillars over the said passage. It is further submitted that the property bearing No.141301, admeasuring 398 Sq.
yards has got a seri of 3 feet which was exclusively meant for the usage by defendants No.3 to 6. The defendants No.3 to 6 thereby pray this Hon’ble Court seeking removal of illegal constructions raised by defendants No.1 and 2 towards the Southern side of the property bearing No.141301.
“The Court has framed the following issues”.
1) Whether the plaintiff is entitled for grant of perpetual injunction against the defendants as prayed for ?
2) Whether the defendant violated the Order passed by this Court dated 26.09.2014 ?
3) Whether the defendants No.1 and 2 raised illegal construction with encroachment over the suit schedule property as shown in Rough Sketch Plan with Red Colour ?
4) Whether the defendants No.3 to 6 are having title and possession over the
H.No.141301 ?
5) To what relief? ?
10.The Plaintiff got examined as PW1 and got marked Exs.A1 to Ex.A20 and further got examined PW2 on his behalf. Ex.A1 is the certified copy of registered sale deed dated 23.06.1971 with English translation (marked subject to objection)
Ex.A2 is the certified copy of final sale deed with English translation (marked subject to objection). Ex.A3 is original police complaint dated 20.09.2014. Ex.A4 is the original postal receipt. Ex.A5 is the office copy of legal notice. Ex.A6 is the colour photographs (four in number). Ex.A7 is the rough sketch plan. Ex.A8 is the office copy of police complaint dated 01.11.2014. Ex.A9 is the office copy of police complaint dated 05.11.2014. Ex.A10 is the office copy of police complaint dated 07.10.2014. Ex.A11 is the office copy of police complaint dated 06.11.2014.
Ex.A12 are the original postal receipts (seven in number). Ex.A13 is the original
Acknowledgements (two in number). Ex.A14 is the colour photographs (Six in number). Ex.A15 certified copy of document 645/70 with translation. Ex.A16 property tax reduction letter dated 29051974. Ex.A17 is the Tax receipt Rs.1656, dt.07.03.2003. Ex.A18 Tax receipt Rs.525 dt.07.03.2003. Ex.A19 is the certified copy of sale deed dated 23.06.1971 (Subject to objection). Ex.A20 is the certified copy of sale deed dated 2709.1971 (Subject to objection).
11.The defendant No.2 got himself examined as Dw1 and Ex.B1 was marked and DW2 was examined on behalf of the defendants herein. Ex.B1 is the certified copy of sale deed dated 05.10.1971.
Issue No.1, 2, 3 and 4: A perpetual injunction can be granted to prevent the breach of an obligation existing in the favour of the plaintiff whether expressly or by implication or when such obligation arises from a contract which can be specifically enforced or when the defendant invades or threatens to invade the plaintiff’s right to or enjoyment of property interalia where the invasion is such that compensation in money would not afford adequate relief. For a perpetual injunction to be granted, the plaintiff must establish his legal right and also his exclusive possession over the suit schedule property. The plaintiff herein had sought for perpetual injunction against the defendant with regard to the suit schedule property which is a seri of 3 feet adjacent to the property bearing number 141301. On a careful perusal of the plaint, it can be seen that the property bearing No.141301 was purchased by the father of the plaintiffs herein. It is further averred in the plaint that there is a joint seri of three feet between the properties of the plaintiffs and defendants No.1 and 2 and that the said seri was being exclusively used by the plaintiffs herein as a path way to the main road. In support of his contention that the father of the plaintiffs purchased the property bearing No.141301, the plaintiffs have got marked Ex.A1 to A20. Ex.A1 shows that the father of the plaintiffs purchased the said property from one Sardar Khan.
The boundaries as can be seen from Ex.A1 shows that the house of Siraj Miya
Saheb and Mulgies of Mohan Lal are situated towards the east, Prakash Hotel is situated towards the North and house of Ahmed Miya Saheb is situated towards the South. As per the schedule of the property as can be seen from the suit, the boundaries of the 3 feet Seri are as follows – towards the North of the seri, the property of plaintiffs is situated. Towards the South of the Seri, property of the defendant No.1 and 2 is situated. Towards the east of the seri, property of plaintiffs is situated and towards the west of the seri, CC road leading to
Mangalhat main road is situated. The property for which Ex.A1 was executed is 141301, which is th suit schedule property and as can be seen from Ex.A1, there is no mention of seri as a boundary to the said property as can be seen from the schedule of property in the plaint. Hence the first discrepancy which arises on comparing Ex.A1 and the schedule of the property as mentioned in the plaint is that there is no mention of the existence of the seri of 3 feet adjacent to the property bearing No.141301 in Ex.A1 when compared to the schedule of property in the plaint. Ex.A2 is the certified copy of the sale deed. This document was executed in the year 1971 with regard to the property bearing number 141338 admeasuring 209 Sq. yards situated at Seetaharampet. Ex.A1 shows that the property No.141301 purchased by Narayan Singh. From Ex.A2 which is the sale deed pertaining to property bearing No.141338, it can be seen that the Western boundary of 141338 is the house of Narayan Singh. Therefore it is presumed that property bearing No.141301, is situated towards the Western side of property bearing No.141338. The map annexed to Ex.A2 also shows that the
Western boundary of the property bearing No.141338 is the property bearing
No.141301 as per the plan annexed to Ex.A2, there is a seri adjacent to the property of Narayan Singh. The property is Ex.A2, was purchased in the name of
Ashok by Narayan Singh Sahab. Ex.A7 which is the rough sketch of the properties bearing No.141301 and No. 141338.
12.On comparing Ex.A1 and Ex.A7, it can be seen that as per the Ex.A7 there is a seri on the Southern side of the property bearing No.141301. However the
Southern boundary as can be seen from Ex.A1 is that the house of one Ahmed
Miya Saheb is situated on the Southern side of property bearing No.141301.
13.This is second discrepancy with regard to the boundaries and the existence of seri adjacent to property bearing No.141301. However from Ex.A2 it can be seen that there is a mention of seri adjacent to the property bearing No.141338.
Ex.A19 is the certified copy of sale deed dated 23.06.1971 and Ex.A20 is the certified copy of sale deed dated 27.09.1971. Ex. A19 is the certified copy of Ex.A1.
It is the sale deed bearing No.1685 of 1971. It is the contention of the plaintiff that the translation in Ex.A1 is not correct and that certain errors have crept in Ex.A1 at the time of translation and hence Ex.A19 was filed subsequently. The main discrepancy between Ex.A1 and Ex.A19 is with regard to the boundaries and further Ex.A1 does not possess any plan annexed to it. However Ex.A19 also shows plan which is annexed to it. Ex.A19 is with regard to the property bearing
No.141301. The boundaries as mentioned in Ex.A19 towards the north is common seri and Prakash Hotel and towards the South is common seri and house of Ahmed Miya Saheb. The boundaries towards the North and South as per Ex.A1 are Prakash hotel and house of Ahmd Miya Saheb respectively. There is no mention of any seri towards the northern and Southern side of property bearing
No.141301 in Ex.A1. However in Ex.A19 which is the corrected translation copy as alleged by the plaintiff herein mentions the existence of seri towards the
Northern and Southern side of property bearing No.141301.
14.On comparing the plan annexed to Ex.A19 and Ex.A7, it can be seen that the seri which is situated towards the Southern side of property bearing No.141 301 is the alleged seri of 3 feet which is the suit schedule property. Therefore from
Ex.A7 and Ex.A19 put together, it can be seen that the seri which is the suit schedule property is situated towards the Southern side of the property bearing
No.141301.
15.On comparing Ex.A7 with the plan annexed to Ex.A20 which is the plan pertaining to property bearing No.141–338, it can be concluded that the seri is situated towards the Western side of property bearing No.141338 as per Ex.A7 and as per Ex.20 the alleged seri which is the suit schedule property is to be situated towards the Western side of the property bearing No.141338 and towards the Southern side of property bearing No.141301. However on a careful perusal of the boundaries as mentioned in Ex.A20, it can be seen that the
Northern boundary of property bearing No.141338 is the seri and Prakash
Talkies. However comparing Ex.A7 and Ex.A20, it can be concluded that the seri ought to have been situated on the Western side of the property bearing No.141
338. However comparing Ex.A7 and Ex.A20, it can concluded that the seri ought to have been situated on the Western side of the property bearing No.141338.
This is the third discrepancy with regard to the location of seri as per Ex.A7,
Ex.A19, Ex.A20, Ex.A1 and A2. Therefore from the above discussion and from
Ex.A1, A2, A7, A19, and A20, there is no clarity as to the location and the existence of the suit schedule property, which is the seri. There is a lot of discrepancy between Ex.A7, A19 and A20 as can be seen from the above discussion.
16.Ex.A15 is the sale deed pertaining to property bearing No.141298, 141 299 and 141300 all together admeasuring 77 Sq. yards. Ex.A7 which is the sketch shows the property bearing the above mentioned numbers towards the western side of the property bearing No.141301. On a careful perusal of Ex.A15, it can be seen that a lane is situated towards the southern side of the property for which sale deed was executed and the same was marked as Ex.A15. Even as per
Ex.A7, the seri is situated towards the southern side of the property bearing
No.141298, 299, and 300. Therefore, from Ex.A15, A19 and Ex.A7 the exact location of the seri can be figured out. However there is discrepancy when Ex.A7,
A15 and A19 are compared with Ex.A20 and Ex.A2.
17.Ex.B1 is the sale deed bearing No.1288/1971 along with English Translation and plan. The said sale deed is with regard to the property bearing No.141297, admeasuring 235 Sq. yards situated at Aghapura which is the alleged property of the defendants as can be seen from the written statement. The boundaries as can be seen from the Ex.B1, there is a lane towards southern side of the property bearing No.141297 which is the property of defendants. As per Ex.A7 it can be seen that the seri is situated towards the northern side of the property of the defendants. However Ex.B1 shows the neighbours house towards the northern side of the property of the defendant herein and the same is also shown in the plan attached to Ex.B1. However the defendants have not filed any other documents in support of Ex.B1 to show that the lane is situated towards the southern and not towards the northern side of property of the defendants as can be seen from Ex.A7.
18.As per the cross examination of Pw2, it can be seen that Pw2 has stated that there is a seri towards the southern side. On a careful perusal of the cross examination of PW2, it can be seen that Dw2 has stated that there is a seri towards southern side of the property bearing 141301 and that the said seri is admeasuring 3 feet wide and 60 feet in length. It is further stated by Dw2 that the said seri is the access for the house property bearing No.141301. It is further stated by Dw2 during his cross examination that the defendants had closed the entrance of the property bearing No.141301 by raising a wall. Therefore from the cross examination of DW2 it can be seen that the seri is situated towards the southern side of the property bearing No,141301 and the same is tallying with the plans in Ex.A7, A15 and Ex.A19. Further Dw1 in his cross examination had denied that he had encroached in to the seri attached to the property bearing
No.141301 and further stated that a wall has been constructed on the northern side of the property of Dw1. As per Ex.B1, the lane/seri is situated on the southern side of the property of the defendant. As per the cross examination of
Dw1 it can be seen that a wall has been constructed towards the Northern side of the property of Dw1. If this statement of Dw1 is to be taken into consideration and if this boundary towards the northern side of the property of Dw1 is to be considered in comparison with the northern boundary as can be seen from Ex.A7, it can be observed that to the northern side of property of Dw1 as shown in Ex.A7 is a seri which is the suit schedule property. Further the said Northern side of the property of Dw1 as seen in Ex.A7 is the seri and the same tallies with the location of the seri in Ex.A15 and Ex.A19. If the testimony of Dw1 is to be taken into consideration with regard to the Northern side of his property and when the same is considered keeping in mind the plans in Ex.A7, A15 and A19, it can be said that the wall is constructed exactly in the location where the seri is situated. However
Ex.B1, the seri/lane is situated on the southern side of the property of Dw1.
However except for this document which has been marked as Ex.B1, the defendant has not filed any other document in support of his contention to show that the seri is situated on the southern side of his property and not on the
Northern side as contended by the plaintiffs herein. It is further stated by Dw1 during the course of his cross examination that he had obtained permission for constructing a structure over his land and also obtained sanction plan for the same. However defendant failed to file the said sanction plan as a documentary evidence in support of his contention. Further Ex.A14 which is the bunch of photographs, a passage leading to a door can be seen. The second photograph in the bunch of photographs marked as Ex.A14 clearly shows a seri/lane. However the fifth photograph which is also marked as Ex.A14 shows that a gate has been fixed. Further the defendant had not filed any documentary evidence to show that the seri is located on the Southern side and not on the northern side to the property bearing No.141297. Further the defendant had not filed any other documentary evidence except for Ex.B1 rebutting the contention as well as the evidence filed by the plaintiff herein.
19.Therefore from the above discussion and from the documentary evidence filed by both the plaintiffs and defendants, it can be said that the defendants No.1 and 2 have raised illegal constructions encroaching the suit schedule property.
20.From the above discussion, it can be further said that the defendants have also violated the docket order passed in IA.No.360/2014 by this Hon’ble Court directing both the parties to maintain statues quo dated 26.09.2014.
ISSUE 5: The Defendants No. 3 to 6 have contended in their written statement that they are the owners of property bearing No.141301 and that the plaintiffs are no way concerned with the above mentioned property. It is further the contention of the defendants No.3 to 6 as can be seen from the written statement that as per the compromise decree passed in the partition suit No.1856/1989, the property bearing No.141301 was alloted to the husband of defendant No.3 and not to the plaintiffs herein. Except for this contention which is made in the written statement, defendants No. 3 to 6 had not filed any documentary evidence in support of their contention. Further a mere oral contention is not sufficient for deciding whether property bearing No.141301 pertains to defendants No.3 to 6 and not to the plaintiffs herein.
21.Considering the above discussion coupled with the documentary evidence, it can be seen that the Ex.A1 to Ex.A20 show that the seri existed as contended by the plaintiff herein and that except of Ex.B1, the defendants have not filed any other documents to show the seri exist towards the southern side and not towards the northern side of the property of defendants No.1 and 2.
22. In the result, the suit is decreed with costs restraining the defendants from interfering with the peaceful possession of the plaintiff and further direct the defendants from carrying out any illegal construction over the suit schedule property.
Dictated to the Stenographer, transcribed by her, corrected and
pronounced by me in the open Court on this the 16th day of March, 2020.
XX JUNIOR CIVIL JUDGE,
CITY CIVIL COURTS:HYDERABAD.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PLAINTIFFS FOR DEFENDANTS: Pw1: Ashok Singh Dw1: Dhanraj Singh Pw2: Gopal Singh Dw2: Suryaneeth Singh
DOCUMENTS MARKED FOR PLAINTIFF:
Ex.A1 is the certified copy of registered sale deed dated 23.06.1971 with English translation (marked subject to objection).
Ex.A2 is the certified copy of final sale deed with English translation (marked subject to objection).
Ex.A3 is original police complaint dated 20.09.2014.
Ex.A4 is the original postal receipt.
Ex.A5 is the office copy of legal notice.
Ex.A6 is the colour photographs (four in number).
Ex.A7 is the rough sketch plan.
Ex.A8 is the office copy of police complaint dated 01.11.2014.
Ex.A9 is the office copy of police complaint dated 05.11.2014.
Ex.A10 is the office copy of police complaint dated 07.10.2014.
Ex.A11 is the office copy of police complaint dated 06.11.2014.
Ex.A12 are the original postal receipts (seven in number).
Ex.A13 is the original Acknowledgements (two in number).
Ex.A14 is the colour photographs (Six in number).
Ex.A15 certified copy of document 645/70 with translation.
Ex.A16 property tax reduction letter dated 29051974.
Ex.A17 is the Tax receipt Rs.1656, dt.07.03.2003.
Ex.A18 Tax receipt Rs.525 dt.07.03.2003.
Ex.A19 is the certified copy of sale deed dated 23.06.1971 (Subject to objection).
Ex.A20 is the certified copy of sale deed dated 2709.1971 (Subject to objection).
DOCUMENTS MARKED FOR DEFENDANTS:
Ex.B1 is the certified copy of sale deed dated 05.10.1971.
XX JUNIOR CIVIL JUDGE,
CITY CIVIL COURTS:HYDERABAD.