SAMDANI BEGUM Vs. DIR MOHAMMED KHAN

JUDGEMENT

(1.) Smt.Samadani Begum, the unsuccessful defendant in both the Courts below had preferred the present Second Appeal under Section 100 of the Code of Civil Procedure as against the successful plaintiff Dil Mohammed Khan. The said plaintiff filed a suit O.S.No.1191/89 on the file of XII Assistant Judge-cum-Principal Rent Controller, Hyderabad originally praying for declaration that he is entitled to easementary rights of air and light from the ventilators shown in red colour in the plan attached and marked as A, B and C which are in existence in the Southern wall of the plaintiff's house bearing No.16-6-686, Osmanpura outside Darwaza, Chaderghat, Hyderabad and for perpetual injunction restraining the defendant, her men, agents and supporters from making any kind of construction adjacent to the Southern wall of the plaintiff's house bearing No.16-6-686, as fully described in the schedule, affecting the easementary rights of air and light in any way from the said house at Osmanpura, Hyderabad and subsequent thereto by virtue of an order passed on 1-11-1995 in I.A.No.35/95, para 4(a) was added and also the relief of mandatory injunction was prayed for directing the defendant to demolish the balcony and other constructions affecting the easementary rights of the plaintiff touching the roof of plaintiff's house No.16-6-686 on the Southern side of the plaintiff's house.

(2.) The suit was resisted by the appellant herein/defendant by filing written statement and additional written statement as well. The Court of first instance by Judgment dated 18-12-1996 on appreciation of oral and documentary evidence available on record decreed the suit with costs directing the appellant herein/defendant to remove the balcony for an extent of 5 feet from the Southern wall of the plaintiff's property within two months from the date of order, otherwise the respondent/plaintiff can take steps to remove the same under due process of law. Aggrieved by the said Judgment and decree, defendant preferred A.S.No.48/97 on the file of XII Additional Chief Judge, City Civil Court, at Hyderabad-Fast Track Court, and the appellate Court by Judgment dated 23-7-2001 dismissed the Appeal with costs and aggrieved by the same, the present Second Appeal is preferred. Sri Shiva Kumar, the learned Counsel representing the appellant/defendant had pointed out that in view of the material available on record inasmuch as the structures are not in existence, the respondent/plaintiff has not been utilizing the adjacent property and the easementary rights relating to light and air and the relief of the mandatory injunction in relation thereto virtually became infructuous and this aspect was not considered by the Courts below. The learned Counsel also commented that when the principal question is in relation to determination of easementary rights, non-framing of Issue in relation thereto had caused prejudice to the appellant/defendant. The learned Counsel also would point out that when these constructions were regularized without challenging such regularization definitely the respondent/plaintiff is not entitled to the relief of mandatory injunction which is a discretionary relief. The learned Counsel in a meticulous way had taken this Court through the original pleading and the subsequent amended pleading, written statement and the additional written statement, report of the Commissioner before the trial Court and the appellate Court, the report of the Commissioner at the appellate stage, both the first report and the second report on revisit and had submitted that in the facts and circumstances of the case, the relief should have been negatived. The learned Counsel also had pointed out to certain interlocutory orders passed in the C.M.A. and on application for granting of police aid and had commented that in view of the permission granted, since reasonable space was left, the construction being in accordance with such permission granted by the Court, definitely the appellate Court had totally erred in confirming the Judgment and decree of the trial Court.

(3.) Per contra Sri Basith Ali Yavar, the learned Counsel representing the respondent/plaintiff had pointed out that concurrent findings had been recorded by both the Courts below and even the direction given in the C.M.A. had not been complied with since no reasonable space was left and the appellant/defendant in a high-handed way had proceeded with further construction in violation of the orders of the Court and hence in the light of the concurrent findings recorded by both the Courts below, especially in view of the fact that no substantial question of law would arise for consideration in this Second Appeal, no interference is called for. Heard the Counsel.