R YADAIAH Vs. T BALAIAH

JUDGEMENT

(1.) The Second Appeal is preferred against the judgment and decree dated 07.03.2003 in A.S.No. 339 of 2001 on the file of the X Additional Chief Judge, City Civil Court, (FTC), Hyderabad, whereby and whereunder the judgment and decree dated 22.12.1999 in O.S.No. 2528 of 1990 on the file of the V Junior Civil Judge, City Civil Court, Hyderabad, was confirmed. The appellant is the plaintiff and respondent No. 1 (died per LR) was the defendant in the suit in O.S.No. 2528 of 1990 on the file of the V Junior Civil Judge, City Civil Court, Hyderabad. The plaintiff filed the said suit seeking perpetual injunction to restrain the defendant from interfering with the seri, 3 feet in width, running from north to south direction, forming part and parcel of premises No. 2-2-527, situated in between premises Nos.2-2-526 and 2-2-527 at Bagh Amberpet, Hyderabad. During the course of trial, plaintiff himself got examined as PW.1 and Exs.A.1 to A.5 were marked and on behalf of the defendant, defendant himself got examined as DW.1 apart from examining another person as DW.2 and Exs.B.1 and B.2 were marked. The trial Court after considering the oral and documentary evidence on record allowed the suit by judgment and decree dated 19.9.1995. Aggrieved thereby, the defendant filed A.S.No. 179 of 1996 on the file of the Chief Judge, City Civil Court, Hyderabad and the learned Chief Judge, after re-appreciating the evidence and other material available on record, allowed the A.S. by judgment and decree dated 7.4.1999 and remanded the matter to the trial Court for disposal afresh after appreciating the evidence on record, and advised the plaintiff to file application before the trial Court for appointment of an Advocate Commissioner to inspect the houses of the plaintiff and the defendant as well as the disputed seri, the physical features and also measure the sites and houses of the plaintiff and the defendant as per the linear measurements mentioned in the title deed of the defendant and Ex.A.3 -sketch plan. On such application being filed by the plaintiff, the trial Court shall allow the same. On remand, the trial Court after issuing notice to both sides, framed the issues as to (i) whether the plaintiff is entitled for perpetual injunction as prayed for and (ii) to what relief ? Though, ample opportunity was given, the plaintiff has not filed application to appoint an Advocate Commissioner and as such the trial Court dismissed the suit by judgment and decree dated 22.12.1999 observing that the plaintiff failed to establish his case. Against the dismissal of the suit, the plaintiff preferred A.S.No. 339 of 2001 on the file of the Additional Chief Judge, City Civil Court (FTC), Hyderabad and the same was dismissed by judgment and decree dated 7.3.2003 confirming the judgment and decree dated 22.12.1999 of the trial Court. Hence, this Second Appeal.

(2.) The learned counsel for the appellant -plaintiff would submit that the trial Court was influenced by the observations made by the first appellate Court; that without appreciating the evidence and other material on record in proper perspective dismissed the suit merely on the ground that the plaintiff failed to seek the appointment of an Advocate Commissioner; that the trial Court failed to take into consideration Exs.B.1-registered sale deed and B.2- sketch plan in respect of the house of the defendant, had the trial Court referred to and consider the said exhibits, it would have come to know the real extent of the house of the defendant and the extent of his possession as claimed by him and that the lower appellate Court also failed to appreciate the evidence and the other material available on record in proper perspective and dismissed the appeal confirming the findings of the trial Court. The learned counsel would contend that the Courts below ought to have taken into consideration the boundaries shown in schedule of the property in Ex.A.1-sale deed, instead of considering extent of the house of the plaintiff. In support of his contention, he relied on the decision of the Supreme Court in P.Udayani Devi v. V.V. Rajeshwara Prasad Rao and another., 1995 AIR(SC) 1357

(3.) On the other hand, learned counsel for the respondents would submit that the plaintiff failed to mention the extent of either his house property or the seri which is claiming to be in his possession and enjoyment. To that effect the learned counse relied on a decision in Bandhu Das and another v. Uttam Charan Pattanaik, 2007 AIR(Ori) 24. The learned counsel would submit that though plaintiff filed Ex.A.1 -sale deed which is in Urdu, along with its English translation (Ex.A2), he has not filed the plan annexed to Ex.A.1; that the plaintiff failed to state in his pleadings that the suit seri is part of his house property; that the plaintiff did not plead that while renovating or reconstructing his house after obtaining permission from the MCH, he left his site as seri; that the plaintiff also failed to mention as to the existence of the suit seri, being used commonly by both sides; that in Exs.A.1 and A2 -sale deed and its translation, the extent of the house and its municipal number are not mentioned, and it is stated to be only a country tiled house; that the plaintiff also failed to file MCH permission which was stated to be obtained for renovating the house; that boundaries shown in the sale deed and the MCH permission are not tallying; that the father of the defendant had purchased the house property under Exs.B1 and B2 and the suit seri is forming part of his house property; that the defendant in order to maintain the neighbourly relationship, permitted the plaintiff to lay water connection through the seri and taking advantage of the same, the plaintiff is claiming title over the suit seri and that it is in the evidence of PW.1 -plaintiff that when he purchased his house under Ex.A.1, the vendor of the defendant was having his house on the eastern side. The learned counsel would contend that the Courts below have given cogent and convincing reasons for dismissing the suit as well as the first appeal and therefore, the judgments of the Courts below need no interference from this Court. In support of his contention, he relied on decisions of the Supreme Court in State of Kerala and another v. Mohd.Kunhi (dead) by LRs and others, 2005 10 SCC 139, Chandrika Singh (dead) by Lrs and another v. Sarjug Singh and another, 2006 12 SCC 49Commissioner, Hindu Religious and Charitable Endowments v. P.Shanmugama and others, 2005 9 SCC 232and Madhavan Nair v. Bhaskar Pillai (dead) by Lrs, 2005 10 SCC 553.