D SHANKER Vs. ANANTA LAXMI

JUDGEMENT

(1.) These two second appeals have been filed against the common judgment rendered in A.S. Nos.lll and 132 of 1988 on the file of the Court of the Additional Chief Judge, City Civil Court, Hyderabad. Second Appeal No.551 of 1992 arises out of A.S. No.lll of 1988 while second appeal No.552 of 1992 arises out of A.S. No.132 of 1988. The appellants are the defendants in O.S. No.534 of 1981 while they are the plaintiffs in O.S.No.369 of 1981. The respondent had laid O.S. No.534 of 1981 for a mandatory injunction to remove the illegal and unauthorised constructions made by demolishing a part of the common wall on the northern side in between the two houses owned by the appellants and the respondent respectively. As a counter blast O.S. No.369 of 1981 was instituted by the appellants seeking the relief of mandatory injunction against the respondent to dismantle the roof laid by her. Earlier, a suit in O.S. No.4381 of 1980 was laid by the respondent against the father of the appellants herein and also the Municipal Corporation but the relief became infructuous as in spite of the injunction order granted therein, the appellants went ahead with the impugned constructions and as such, the respondent had chosen to institute a fresh suit in O.S. No.534 of 1981 seeking a mandatory injunction to restore the common wall as existing on the date of the institution of the suit in O.S. No.4381 of 1980. While the suit of the respondent in O.S. No.534 of 1981 was decreed, the suit laid by the appellants in O.S. No.369 of 1981 was dismissed. The said judgment and decrees rendered by the trial Court were upheld by the lower appellate Court. Hence there is a concurrent finding of fact that the wall in question was the joint property of both the appellants and the respondent and not the exclusive property of the appellants as pleaded by them. This concurrent finding of fact is not impeachable in this second appeal. But Mr. C.P. Sarathy, learned Counsel for the appellants vehemently argued that even if the impugned construction was illegal, as no damage was suffered by the respondent, the Courts below erred in exercising the discretionary powers to demolish the staircase whereas the discretion ought to be to preserve the constructions as they are and award damages to the respondent. Mr. Sarathy also relied upon a statement made by the husband of the respondent as P.W.I. The statement runs as follows: "The defendant prior to demolition of wall assured in the presence of D-4 that in case he touches the said wall he will pay Rs.10,000/-." I have considered this statement in a careful manner. This does not amount to admission on the part of the respondent that even if the wall is demolished, she will not claim the restoration of wall but will be satisfied with the payment of damages of Rs.10,000/-. The said statement has to be understood in a proper manner and if so understood, it only means that if the roof touches the wall, the appellants had agreed to pay Rs.10,000/- and the same cannot be stretched to the extent of saying that even if the wall was to be demolished, the respondent or her husband had agreed to be satisfied with the payment of Rs.10,000/-. Further, when O.S. No.4381 of 1980 was filed, the pillars were laid 3 ft. away from the joint wall mentioned above and in that context, the above statement has to be understood. When the appellants were making preparations to lay a roof on the common wall, the respondent had instituted O.S. No.4381 of 1980 for injunction and on 29-12-1980 the trial Court had granted the interim injunction orders restraining the appellants father from making construction. It is not disputed that as on 29-12-1980, the roof was not laid.What was contended before the Court below was that the appellants were not bound by the said injunction order as their father was not the recorded owner but they ware the owners. They went ahead with the constructions in 'die teeth of the injunction order and their ownership came to be known to the respondent only after they had instituted the suit O.S.No.369 of 1981 and obtained the injunction orders against the respondent herein on 5-2-1981 by supressing the factum of earlier initiation of the proceedings in O.S. No.4381 of 1980 and the interim injunction granted therein. Thereafter, the appellants were also impleaded as defendants 2 and 3 in O.S. No.4381 of 1980 but as the roof was already laid, no relief was granted in the said suit and as such claiming mandatory injunction to remove the said unauthorised construction, O.S. 534 of 1981 came to be filed. Not Only an Advocate-Commissioner was appointed who reported that the construction of the staircase was unauthorised and caused damage to the existing structure of the respondent, the Presiding Officer of the trial Court had personally inspected the same and came to the said conclusion. Concurrent finding of fact has been recorded by both the Courts beiow that the construction was not only illegal and unauthorised but was high-handed and caused damage to the existing structure owned by the respondent. On that count the Courts below did not exercise to invoke equity. Instead, the Courts below directed demolition and restoring the common wall by the grant of mandatory injunction.

(2.) Mr. Sarathy relied on the judgments rendered in Ram Shnnker vs. Mahatma Gandhi H.S. School as also State of Assam vs. M/s. M.S. Associates Lotteries apart from a judgment of this Court in B. Venkatachalamaiah vs. K.P. Kondiah, wherein the Division Bench of this Court held that a joint owner of a joint property is entitled to enjoy the property provided the said enjoyment does not result in damage to the other co-owner. Damage or otherwise is a question of fact and in the instant case it is held concurrently that damage was caused to the rights of the respondent. As such the said decision is inapplicable. The decision second cited has got no application to the facts of this case as the said judgment dealt with the grant of injunction against the public authorities regarding lotteries. In the decision first cited, a learned Single Judge has set aside the decree of demolition passed by the Courts below and remanded the matter back to the trial Court for framing an issue with regard to the damage. The same is not an authoritative proposition of law which can be pressed into service in the instant case. Whether in a particular set of facts, equity has to be invoked or not is not a question of law but is a question of fact. In this case the question of fact was gone into by both the Courts below and it was found in the negative.

(3.) I am not persuaded to take a different stance than that of the Courts below as there is no equity in favour of the appellants to invoke equity. Not only the appellants had invaded the rights of the respondent founded in common law but also violated the orders of injunction granted by the Court of law and in the teeth of the injunction orders the illegal construction was made and that itself is sufficient to reject the plea of the appellants to save the impugned construction and instead to award damages. If the plea of the appellants is accepted, the only result is condoning the breach of injunction orders deliberately committed by the appellants. Instead of repenting about the said breach, they went on contesting on the ground that they were hot bound by the injunction orders as those orders were directed against their father and not themselves. The recording of ownership, notwithstanding the fact that the appellants father was their karta and may be that he had obtained the sale-deed in the nameofappellants,does not mean that the appellants were entitled under law to commit the breach of the injunction orders. I cannot also accept the argument of Mr. Sarathy. With regard to the other appeal viz., S.A. N o.552 of 1992 also, since there is a concurrent find ing of fact against the appellants, I see no grounds to interfere with the same.