Research › Search › Judgment

Andhra High Court · body

2007 DIGILAW 818 (AP)

Shaik Mohammed v. M. A. Hameed

2007-08-29

P.S.NARAYANA

body2007
JUDGMENT: Heard the counsel on record. 2. Sri P.S.Murthy and Sri Ashok Kumar Avasthi made submissions at length pointing out the substantial questions of law, on the strength of which the Second Appeal had been admitted. 3. The principal question, which had been argued in elaboration, is that the appellate Court is totally unjustified in granting the relief to the opposite party even while dismissing the appeal and the same is without jurisdiction. 4. This Court on 29.1.1999 made the following order: "Following are the substantial questions of law which arise for consideration in this Second Appeal: (1) Whether the judgment of the lower Court is perverse and whether the finding of the lower appellate Court that the suit land is not of 20 feet width and 60 feet length, is based on no evidence? (2) Whether the lower appellate Court committed illegality in giving substantive relief to the defendants while dismissing the appeal filed by them? The Second Appeal is therefore admitted". 5. For the purpose of convenience, the parties hereinafter would be referred to as plaintiff and defendants as shown in OS No.34 of 1991 on the file of Principal District Munsif, Nizamabad. 6. The plaintiff instituted the suit for perpetual injunction restraining the defendants from encroaching upon the suit schedule road and narrowing it permanently or opening any drain over it and remove the bathroom and basement constructed by the defendants in 20' wide suit schedule road by mandatory injunction with costs. It was averred in the plaint as hereunder: "The plaintiff is the owner and possessor of house bearing No.9-19-57 situated at Malapally locality, Nizamabad. The defendants are occupants of H.No.9-18-58 in the same locality. Their houses are separated by 20' wide public road which is existing for more than 30 years. This road connects another two 20' wide roads which are situated abutting the house of plaintiff and defendants on the north and southern sides except this road is being used by plaintiff for last 30 years. The defendants are also trying to open their drains on this road and to flush out their latrine on the road. The defendants constructed bathroom and basement in the 20' wide road to their side without obtaining permission from the Municipality, due to which the width of the road is reduced by about 9'. In spite of requesting the plaintiff, the defendants are not removing them. The defendants constructed bathroom and basement in the 20' wide road to their side without obtaining permission from the Municipality, due to which the width of the road is reduced by about 9'. In spite of requesting the plaintiff, the defendants are not removing them. The defendants constructed the bathroom two years prior to the institution of suit i.e., in the month of February, 1989 and the basement in the end of February, 1991. The defendants with a malafide motive are trying to encroach upon the 20' wide road and occupy it by erecting fencing on 10' wide portion abutting this road on eastern side of defendants portion. They have no right to encroach upon this road and narrow on the road portion affecting the interest of the plaintiff. The plaintiff suffers personal inconvenience if the defendants are allowed to encroach the road". 7. The defendants resisted the plaint averments by filing a written statement with the following averments: "The lane is a private lane. The elders of the parties earmarked the land meant for this passage long back. It is only a 10' passage. It is not a public road. They denied that the plaintiff has been using the said passage for the last 30 years, and that this main door opens into this passage. They further denied that they are trying to encroach upon the 20' wide road and occupy it by erecting a fencing on 10' wide portion and they are making the passage narrow. The defendants submit that the toilet and bathroom have been in existence for the last 30 years on the eastern side and the present erection of the fencing is in the same lane where their latrine and bathroom are situated. The dimensions of their plot is 60'x60'. They denied that the plaintiff suffer personal inconvenience". 8. On the strength of the above pleadings, the following issues and additional issue were settled before the Court of first instance: 1. Whether the plaintiff is entitled to perpetual injunction as prayed for? 2. To what relief? Additional issue: "Whether the plaintiff is entitled to mandatory injunction directing the defendants to remove the wall constructed between the houses of plaintiff and defendants". On behalf of the plaintiff, PWs.1 to 4 were examined and Exs.A1 and A2 were marked and on behalf of the defendants, DWs.1 and 2 were examined and Ex.B1 was marked. 2. To what relief? Additional issue: "Whether the plaintiff is entitled to mandatory injunction directing the defendants to remove the wall constructed between the houses of plaintiff and defendants". On behalf of the plaintiff, PWs.1 to 4 were examined and Exs.A1 and A2 were marked and on behalf of the defendants, DWs.1 and 2 were examined and Ex.B1 was marked. The Report of the Commissioner was marked as Ex.C1. Ex.X1 also was marked on behalf of the plaintiff. The Court of first instance, on appreciation of the evidence available on record, ultimately came to the conclusion that the plaintiff is entitled to the reliefs and decreed the suit with costs and the defendants were directed to remove the bathroom and the basement they constructed in front of plaintiff's house from south to north running into 50'x10" to an extent of 9' from east to west within 30 days. Aggrieved by the same, the defendants preferred AS No.33 of 1995 on the file of District Judge, Nizamabad and the appellate Court at paragraph 13 framed the following points for consideration: 1. Whether the suit lane is 20' wide East-West and 60' in length North-South in between the houses of the plaintiff and the defendants? 2. Whether the plaintiff is entitled for mandatory injunction as prayed for? 3. Whether the plaintiff is entitled for perpetual injunction as prayed for? The appellate Court commencing from paragraphs 14 to 23 had taken into consideration the oral and documentary evidence available on record, discussed Ex.C1 at length and came to the conclusion that the appeal to be dismissed and the suit to be partly decreed. It may be appropriate to look at the operative portion of the judgment of the appellate at paragraph 24 and the said operative portion reads as hereunder: "In the result, the appeal is dismissed and the suit is partly decreed restraining the defendants from encroaching the suit lane beyond the basement shown in Ex.C1 sketch, and directing the defendants to see that their drain water shall flow from inside the basement shown in Ex.C1 sketch without touching the wall of the plaintiff". 9. In the light of the substantial questions of law, which had been already specified supra and in the light of what had been specified in the operative portion of the judgment of the appellate Court, elaborate submissions had been made. 10. 9. In the light of the substantial questions of law, which had been already specified supra and in the light of what had been specified in the operative portion of the judgment of the appellate Court, elaborate submissions had been made. 10. It is true that the appellate Court while partly decreeing the suit restraining the defendants from encroaching the suit lane beyond the basement shown in Ex.C1 sketch, further directed the defendants to see that their drain water shall flow from inside the basement shown in Ex.C1 sketch without touching the wall of the plaintiff. The latter portion of the direction had been pointed out and certain submissions were made that the direction made by the appellate Court is without jurisdiction. While molding the relief, the Courts are expected to take into consideration all the facts and circumstances and hence as a broad proposition it cannot be laid down that such direction made by the appellate Court is one without jurisdiction. The appellate Court, on appreciation of oral and documentary evidence available on record, came to the conclusion that it would be just and proper to issue such direction while partly decreeing the suit as well. On over-all appreciation of the facts and circumstances, this Court is satisfied that the questions of law pointed out being not substantial questions of law and also in view of the limitations imposed on this Court while interfering with such findings in a Second Appeal under Section 100 of Code of Civil Procedure, this Court is not inclined to disturb the said findings. 11. Accordingly, the Second Appeal shall sand dismissed. In view of the facts and circumstances, the parties to bear their own costs.