PUSHPA Vs. L.C.FARNANDEZ

JUDGEMENT

(1.) The second defendant-cum-counter claimant who was unsuccessful in both the Courts below, is the appellant herein. The 1st respondent/plaintiff filed the suit in the trial Court for mandatory injunction directing the 2nd defendant to remove unauthorized construction on western side of the suit property (i.e.,) room in the ground floor, sajja of the ground floor, centering of the sajja of the 1st floor and to direct the 1st defendant/Municipal corporation of Hyderabad to remove the same to bring the construction in accordance with the sanctioned plan, in the event of 2nd defendant not removing the unauthorized construction and also for consequential injunction restraining the 2nd defendant from carrying on construction covering open space on the western side of the suit property, which may affect easementary rights of the plaintiff for free air and light through the windows to the plaintiff's house. The plaintiff is owner of house, which is located to the east of the 1st defendant's house. It is contention of the plaintiff that by virtue of the impugned constructions undertaken by the 1st defendant contrary to the municipal sanctioned plan, the plaintiff is suffering for free passage of air and light through her western windows into her house. The 1st defendant/Municipal corporation contended that the 2nd defendant made constructions contrary to the sanctioned plan and that it is taking steps against the 2nd defendant for following the sanctioned plan in making the construction. The 2nd defendant/appellant contended inter-alia that there are no deviations in construction from the municipal sanctioned plan and that constructions have been made by the 22nd defendant are not causing any hindrance for passage of air and light to the plaintiff's house as the plaintiff has already closed the western windows of her house. As a counter claim, the 2nd defendant contended that balcony in the 1st floor of the plaintiff's house is protruding towards 2nd defendant's property and that at the time of purchase of the site by the 2nd defendant, the plaintiff agreed and undertook to remove 1st floor balcony and that therefore mandatory injunction is liable to be issued against the plaintiff for removal of the said balcony. After trial, the trial Court decreed the suit and dismissed the counter claim. On two appeals filed by the 2nd defendant, the lower appellate Court dismissed both the appeals. Therefore, the 2nd defendant approached this Court with these two second appeals. Second Appeal No. 985 of 1999 relates to the decree of mandatory injunction etc., passed in the suit and confirmed by the lower appellate Court. Second Appeal No. 986 of 1999 relates to dismissal of counter claim of the 2nd defendant by both the Courts below.

(2.) Second Appeal No. 985 of 1999 was admitted by the then Learned Judge of this Court after identifying ground Nos. 1 to 4 of memorandum of grounds of second Appeal as substantial questions of law. They are as follows:--

(3.) Second Appeal No. 986 of 1999 was admitted by the then learned judge of this Court after identifying the ground No. 1 of the memorandum of grounds of second Appeal as -substantial question of law which is as follows:--