B KRISHNA Vs. SHAIK DAWOOD

JUDGEMENT

(1.) The sole defendant in O S No 3895 of 1979 is the appellant herein. The appeal relates to a vacant site comprising of 365 sq yards in Old Malakpet, Hyderabad. The plaintiff in that suit sought for an injunction on the ground that when he wanted to construct a compound wall having obtained sanction from the Municipal Corporation of Hyderabad, the defendant who is residing adjacent to the suit land forcibly stopped the work of the plaintiff and did not allow him to do the construction work. The defendant while admitting the ownership of the plaintiff in the suit land, pleaded that he has been in possession of the same as a tenant for more than 15 years and has been using it having constructed a thatched shed and keeping buffaloes and cows,

(2.) The defendant has also filed OS No. 4000 of 1979 for a perpetual injunction alleging that while he was running a dairy farm in the open space of land measuring 365 sq. yards having taken It OB lease from the defendant, the defendant tried to untie the she-buffaloes and to pull down the cattle shed. The defendant in that suit who is toe plaintiff in OS No. 3895 of 1979 while denying the allegations la the plaint in O S No. 4000 of 1979 has laid a counterclaim alleging that on 16-5-1980 the plaintiff in O S No. 4000 of 1979 has entered into the suit land dis-obeying the injunction orders and started construction, Basing on the allegations in the written statement in O S No. 4000 of 1979, the learned 10th Assistant Judge. City Civil Court, Hyderabad has framed the relevant issues including the additional issue and tried both the suits together. The evidence was recorded in pursuance of the joint memorandum filed by both the sides in O.S.No. 3895 of 1979. The learned Assistant Judge by his judgment dated 14-12-1982 dismissed both the suits while decreeing the counter-claim in OS No. 4000 of 1979 for recovery of possession. On appeal, the learned Additional Chief Judge, City Civil Court, Hyderabad confirmed the decision of the trial court. Aggrieved by the said decision, the defendant has filed the Second Appeal.

(3.) The learned counsel for the appellant argued that both the courts below have found contrary to the evidence of PW 3; that when the lease is not terminated, the defendant cannot be dispossessed: that, the proper course for the plaintiff should have been to issue a notice terminating the lease and then filing the suit for possession and that when the finding is perverse, that can constitute a substantial question of law warranting interference by this court in the Second Appeal. He further submitted that both the courts below committed an error in entertaining the counterclaim which is wider than the claim in the suit itself which is not permissible In law.