MOHAMMED ABDULLAH BUTUK Vs. ZAINAB BEGUM

JUDGEMENT

(1.) Aggrieved by the judgment and decree, dated 5-11-2001, passed in A.S. No. 333 of 1999 by the learned XII Additional Chief Judge (Fast Track Court), City Civil Court, Hyderabad, allowing the appeal and setting aside the order and decree dated 30-8-1999 passed in O.S. No, 5477 of 1994 by the learned IX Junior Civil Judge, City Civil Court, Hyderabad, the present appeal is filed.

(2.) The suit was filed for the grant of perpetual injunction, restraining the defendant from putting any structures on the southern side wall of the plaintiffs house and subsequently it was amended for the grant of mandatory injunction for removing the structures placed on the said wall. It is the case of the plaintiffs that one Abdullah Bin Osman Batuk-father of plaintiffs 1 to 4 and husband of the 4th plaintiff purchased the plaint schedule property, bearing municipal No. 13-4-101, under a registered sale deed dated 20-2-1982 and after his death, the property devolved on them. The defendant is the owner of house bearing No. 13-4-103 lying to the south of the plaint schedule property. It is the case of the plaintiffs that the southern wall of the suit schedule property exclusively belongs to them and the same is shown in the plan enclosed to the sale deed. The defendant, having no manner of right in respect of the said wall, on 21 -11 -1994 while making unauthorized construction in her premises, has illegally made big holes in the southern wall of the plaintiffs house for the purpose of putting structures thereon. After the grant of Interim injunction against the defendant, the defendant illegally caused damage to the southern wall of the plaintiffs house and put a load on the said wall in violation of the interim injunction, Therefore, on petition, an Advocate Commissioner was appointed and he filed a report after inspection, which shows that the defendant has put up asbestos sheets on the southern wall of the plaintiffs house. Thus, the plaintiffs sought the relief of mandatory injunction to remove the said structures and for damages of Rs. 10,000/-.

(3.) The case of the defendant, as can be gathered from the written statement is that the wall on the south of the plaintiffs house is not the exclusive wall of the plaintiffs, but it Is a common wall between the plaintiffs and the defendant and it is shown as such In the registered sale deed dated 13-4-1970 executed by Kaneez Mehdi Begum and others. The defendant denied to have made holes in the said wall and put structures on it and contended that the suit is filed to harass the defendant due to previous enmity between her and the plaintiffs.