M MUTHAMMA Vs. E ANTHA LAKSHMI BAI

JUDGEMENT

(1.) The unsuccessful defendant in both the Courts below as appellant in the present Second Appeal, had invoked the jurisdiction of this Court under Section 100 of the Code of Civil Procedure raising the following substantial questions of law : 1. Whether the decision of the courts below in granting the relief of mandatory injunction assuming without admitting that there is encroachment even without considering the aspect which the same can be compensated otherwise ? 2. Whether the suit for mere mandatory injunction without seeking declaration is maintainable ? 3. Whether the plaintiffs are bound by the principles of estoppel by conduct in acquiescing and allowing the completion of the constructions ? 4. Whether the decision of the Courts below without considering the entire evidence on record is sustainable ? 5. Whether the suit is bad for non-joinder of necessary parties ? 6. Whether the non-consideration of Exs.B-10 and B-12 by the trial Court and Ex.B-10 by the appellate Court would vitiate the Judgment and decree made by the appellate Court ? 7. Whether the plaintiffs having kept quiet for several long years be permitted to raise a ground praying for the relief of mandatory injunction for removal of the structures even on the principle of stand by, acquiescence and waiver. 8. Whether the Courts below are justified in granting the relief of mandatory injunction without recording a finding as to the relative damage which would be caused to the respective parties ? 9. Whether the non-consideration of principle of payment of compensation in lieu of mandatory injunction in any way would vitiate the Judgment and decree of the appellate Court ? 10. Whether this is a fit matter to be remanded or at least to call for a finding relating to the quantum of compensation payable in lieu of the relief of mandatory injunction in the light of Section 40 of the Specific Relief Act, 1963 ?

(2.) Submissions at length were made by Sri Sunder Rajan and Sri Vilas Afzul Purkar, Counsel representing the respective parties on the aspect of the relief of mandatory injunction being a discretionary relief and compensation payable to be decided in lieu of mandatory injunction. Doctrine of estoppel, principle of stand by, principle of acquiescence and principle of waiver and applicability thereof also had been argued elaborately. Contentions relating to the applicability or otherwise of the doctrine of equity also had been highlighted. Certain decisions also were relied upon in support of their respective contentions by both the Counsel.

(3.) Respondents/plaintiffs pleaded in the plaint in O.S.No.198/88 on the file of IX Junior Civil Judge, City Civil Court, Hyderabad while praying for the relief of mandatory injunction and perpetual injunction as hereunder : Plaintiffs are the absolute owners of the premises bearing Municipal No.3-5-19, situated at Ramkote, Hyderabad having purchased the same through a registered sale deed dated 5/12-8-1955 and there is a window towards Southern side of the plaintiffs house prior to their purchase for aid and light and that the plaintiffs property is having country tiled roof and the same is slope towards South and the rain water from the roof of plaintiff's property flows towards Southern side and that there is an open place admeasuring 3' x 10' on the Southern side of the plaintiffs property meant for rain water from the roof of the property of plaintiffs apart from providing air and light through their property and the suit property is shown in red colour in the rough sketch. It was further pleaded that the defendant who is the owner of the house bearing No.4-2-698 purchased the same through a registered sale deed dated 10-12-1951 which is described in blue colour and the defendant has no manner of right over the suit property. The plaintiff came to know in the month of January 1987 that the defendant while submitting plans included the suit property and showed it open to sky out of malafide intention to grab the suit property of the plaintiff and without any right or interest the defendant raised certain structures in the suit property illegally by using the wall on North-East of the suit property of the plaintiff and also opened windows and because of the said illegal structures, the rain water is coming through the window directly into the room adjoining the suit property and that thereby it is difficult for the plaintiff to use the room for residential or other purposes. It was also pleaded that the plaintiff approached the defendant in the month of January 1987 and asked her to close the window and remove the structures raised in the suit property and the structures raised by using other walls of the plaintiff's property, but the defendant refused to remove the same. The plaintiff complained/applied to the Municipal Corporation of Hyderabad complaining about illegal structures raised in the suit property and after verifying the documents of both the parties the officials of the Municipal Corporation of Hyderabad came to the suit property to demolish the illegal structures including the window and the defendant managed them and instituted a suit O.S.No.2210/87 on 29-4-1987 and obtained injunction orders without making the plaintiff as a party to the said suit. It was also further pleaded that the defendant has no manner of right or interest in the suit property and according to her own documents, the property is outside the boundaries of the property purchased by the defendant. Therefore, the defendant is bound to remove the structures raised in the property and close down the window and also to remove the structures raised on the walls belonging to the plaintiff.