THIWARI DADAJI SINGH Vs. ALLA NIRMALA DEVI

JUDGEMENT

(1.) Thiwari Dadaji Singh, the 5th respondent in AS No.223 of 1989 on the file of I Additional District Judge, Guntur, is the appellant in the present Second Appeal. In AS No.223 of 1989 aforesaid apart from the Guntur Municipal Council represented by its Commissioner, Guntur, as 1st respondent, the original defendant in the suit OS No.667 of 1985 on the file of II Additional Munsif Magistrate, Guntur, Dr. Sayyed Imam, Syed Niaz Ahamad and Dr. Sayyed Iqbal Ahmad were added as legal representatives of the 2nd appellant, Khairunnisa Begum, who died, by virtue of an order made in IA No.130 of 1994, dated 4.8.1994 as respondents 2, 3 and 4.

(2.) The suit OS No.667 of 1985 was filed by Alla Nirmala Devi and Khairunnisa Begum, two plaintiffs, as against the Guntur Municipal Council represented by its Commissioner, Guntur, praying for the relief of permanent injunction restraining the defendants, its men from demolishing or in any way interfering with the plaintiffs peaceful possession and enjoyment of the site ABCDEF as per plaint plan and the cinema theatre therein shown in the schedule and for permanent injunction restraining its men from in any way allowing encroachments or put up any constructions North of DE wall as per plaint plan and for other suitable reliefs. Before the Court of first instance on the strength of the respective pleadings of the parties, having settled the issues, the evidence of PWs.1 and 2 (Alla Nirmala Devi and Shaik Imam) had been recorded and no evidence was let in on behalf of the defendant and the Court of first instance after recording findings, came to the conclusion that the suit was filed on imaginary cause of action and ultimately dismissed the suit. Aggrieved by the same, both the plaintiffs preferred AS No.223 of 189 on the file of I Additional District Judge, Guntur, and the 2nd appellant-Khairunnisa Begum died and consequent thereupon respondents 2,3 and 4, the legal representatives of the said Khairunnisa Begum, were brought on record and the present appellant also came on record as 5th respondent in the said appeal as referred to supra. In the light of the subsequent events, an amendment was prayed for claiming the relief of mandatory injunction and before the appellate Court Exs.A1 to A3 and Exs.B1 to B9 were marked. The learned I Additional District Judge, Guntur, at paragraph 13 after framing the point for consideration, proceeded to discuss all the aspects commencing from paragraphs 14 to 39 and ultimately came to the conclusion that the plaintiffs are entitled to the relief prayed for. Aggrieved by the same, the party who came on record afresh at the appellate stage, the 5th respondent, alone had preferred the present Second Appeal.

(3.) The following substantial questions of law arise for consideration in this Second Appeal: