THE HON’BLE SRI JUSTICE T.

SUNIL CHOWDARY

SECOND APPEAL No.46 of 2013

JUDGMENT:

This appeal is filed by the unsuccessful plaintiff challenging

the decree and judgment dated 07.9.2006 in A.S.No.410 of 2003

on the file of Court of XIII Additional Chief Judge, City Civil Court,

Hyderabad, wherein and whereby the decree and judgment dated

04.8.2003 in O.S.No.2567 of 1999 on the file of the Court of III

Junior Civil Judge, City Civil Court, Hyderabad, granting the relief

of declaration and mandatory injunction in favour of the plaintiff

was confirmed.

2. For the sake of convenience, the parties hereinafter will be

referred to as they were arrayed in the suit.

3. The facts leading to filing of the present second appeal are

briefly as follows: It is the case of the plaintiff that he is the owner

and possessor of house bearing No.19-3-542/2 admeasuring 108

Sq.yards situated Aliabad, Alinagar, Hyderabad, by virtue of

registered sale deed dated 20.12.1995 vide document No.1098 of

1995. On the south of plaintiff’s house, there is a passage running

from east to west admeasuring 6 feet wide and 99’.4” length. The

house of the defendant is situated on the south of the passage. The

defendant had illegally and unauthorisedly encroached the

passage to the extent of 6’ wide and 13’.6” length, thereby

completely blocked the passage of the plaintiff. The defendant,

having no right whatsoever, encroached the passage and

constructed a room thereon. Due to the encroachment made by

the defendant on the passage, the easementary right of the plaintiff

had been adversely affected. The plaintiff got issued notice dated
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10.3.1999 directing the defendant to remove the room on the

encroached portion of the passage. Since the defendant had not

removed the construction on encroached passage, the plaintiff filed

the suit seeking declaration that the defendant encroached

passage of about 6’ and 13’.6” on the South of plaintiff’s house

bearing No.19-3-542/2, and consequential mandatory injunction

directing the defendant to remove the construction.

4. The defendant filed written statement denying the averments

made in the plaint inter alia contending that the defendant is

owner and possessor of suit schedule passage and prior to his

purchase, his vendor constructed a room on the west of the

passage and the same has been shown in the sketch plan, since

1984. As such, the plaintiff has no right, title or interest over the

said passage. The plaintiff, in order to grab the suit schedule

passage, tried to open the back door of his house. The plaintiff

purchased the house without verifying the link documents. Hence,

the suit is liable to be dismissed.

5. Basing on the above pleadings, the trial Court framed the

following issues:

1. Whether the plaintiff is entitled for a declaration as

prayed for?

2. Whether the plaintiff is entitled for a mandatory

injunction as sought for?

3. To what relief?

6. Before the trial Court, on behalf of the plaintiff, P.Ws.1 to 3

were examined and Exs.A1 to A14 were marked. On behalf of the

defendant, D.W.1 was examined and Exs.B1 to B4 were marked.

Basing on the oral, documentary evidence and other material

available on record, the trial Court decreed the suit declaring that
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there exists suit schedule passage; consequently granted

mandatory injunction directing the defendant to remove the

structures on the common passage. Feeling aggrieved by the

judgment decree of the trial Court, the defendant preferred

A.S.No.410 of 2003 on the file of the Court of XIII Additional Chief

Judge, City Civil Court, Hyderabad. Pending appeal, the defendant

died and respondent Nos.2 to 7 herein came on record as his legal

representatives. After reappraising the oral and documentary

evidence available on record, the first appellate Court allowed the

appeal, setting aside the decree and judgment of the trial Court.

Hence, the present second appeal is filed by the plaintiff.

7. Heard the learned counsel for both the parties.

8. The questions of law raised in this second appeal are as

follows:

1. Whether the first appellate Court is justified in

allowing the appeal in spite of admission made by the
defendant in his chief-examination about the existence of
common passage? and
2. Whether the first appellate Court is justified in not
drawing adverse inference against the defendant for non-
production of Municipal Sanction Plan?

9. Both the points are interlinked with each other; hence, this

Court is inclined to address both the points simultaneously in

order to avoid recapitulation of facts.

10. The following admitted facts can be culled out from the

pleadings of both parties. The plaintiff is owner of the house

bearing No.19-3-542/2, Aliabad, Alinagar, Hyderabad. There is a

passage on the South of plaintiff’s house running from East to

West admeasuring 6’ width and 99’.4” length. The defendant is

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having house on the South of the passage. The entire controversy

revolves around, whether the defendant constructed a room by

encroaching 6’ width and 13’.6” length of passage. It is a settled

principle of law that in a suit for declaration the plaintiff has to

establish his case by preponderance of probabilities. It is equally

settled principle of law that the plaintiff is not entitled for the relief

of declaration basing on the weaknesses or lacunae, if any, on the

part of the defendant.

11. In order to succeed in the suit, (1) the plaintiff has to

establish that he is having right over the suit schedule passage;

and (2) the defendant made construction within a period of three

years immediately preceding to filing of the suit so as to seek the

relief of mandatory injunction. The plaintiff examined himself as

P.W.2. The father of the plaintiff was examined as P.W.1. P.W.3 is

an independent witness. The defendant examined himself as

D.W.1. Ex.A1 is the sale deed of the plaintiff. Ex.A2 is the plan.

Exs.A3, A4 and A5 are the link documents of the plaintiff. P.Ws.1,

2 and D.W.1 are interested witnesses; therefore, the possibility of

distortion of the facts by these witnesses, in order to suit their

respective claims, cannot be ruled out completely.

12. As seen from the testimony of P.W.2, he purchased the

house under Ex.A1 registered sale deed dated 20.12.1995. As

seen from the testimony of P.W.1, one and half years after

purchase of the house, his vendor entrusted the link documents of

the house to him; thereafter, he came to know that the defendant

constructed one room by occupying common passage. The suit

was filed on 25.6.1999. At one stage, the plaintiff as P.W.2

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deposed that by the time of purchasing the house by him under

Ex.A1 sale deed, the defendant constructed the room. If that be

so, the plaintiff ought to have filed the suit within three years from

the date of purchase of the property i.e., on or before 19.12.1998.

Even according to the plaint averments, the plaintiff got issued

notice dated 10.3.1999 directing the defendant to remove the

encroachment. In Ex.A1 sale deed and Ex.A2 plan, the southern

boundary of the house of the plaintiff is mentioned as the property

of the neighbour and thereafter the passage. In Exs.A3, A4 and A5

also, southern boundary of the plaintiff’s house is shown as

passage. In Exs.A1 to A5, it is not mentioned that the passage,

which is situated on the South of the plaintiff’s house is meant for

common passage. There is no recital in these documents the

plaintiff got right of ingress and egress through suit schedule

passage.

13. The learned counsel for the appellant submitted that plaintiff

has got easementary right over the suit schedule passage. In the

plaint, there is no pleading that the plaintiff’s vendor and

thereafter the plaintiff has been using the suit schedule passage

continuously for a period of 20 years without any interruption,

thereby easementary right was accrued in his favour over the suit

schedule passage. In the absence of such pleading, the plaintiff is

not entitled to the relief of declaration by way of easement, in view

of Section 15 of the Easements Act.

14. In order to appreciate the contention of learned counsel for

the appellant, it is not out of place to extract hereunder the

boundaries mentioned in the plaint schedule.

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North : Property of the plaintiff

South : Property of the defendant
East : Passage
West : Graveyard

15. In the plaint schedule itself, the plaintiff in unequivocal

terms admitted that southern side boundary is the property of the

defendant. This clearly shows that the plaintiff has not verified the

boundaries with reference to the link documents before purchasing

the house. It is evident that that the plaint schedule is contrary to

the schedule mentioned in Exs.A1 and A2 and the plaintiff filed the

suit without mentioning the correct boundaries of the suit

schedule passage.

16. The trial Court granted the relief of declaration in favour of

the plaintiff on the ground that the defendant failed to establish

that he is the owner of the suit schedule passage. Though the

defendant has categorically stated that he is exclusive owner of the

suit schedule passage, the trial Court has lost sight of this aspect

and granted the relief of declaration. The trial Court decreed the

suit without taking into consideration the fundamental principles

of law. Any judgment delivered contrary to the fundamental

principles of law is not sustainable. However, the appellate Court

has considered all these aspects and allowed the appeal while

dismissing the suit. The appellate Court made an observation that

the plaintiff is not entitled for the relief of declaration without

proper pleadings in the plaint and corresponding evidence. There

is no whisper in the testimony of P.Ws.1 and 2 that they acquired

easementary right over the suit schedule passage. The findings

recorded by the appellate Court are based on sound reasoning and

logical conclusion whereas the trial Court allowed the suit on

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assumptions and presumptions. Once the plaintiff prima facie

proves his right over the suit schedule passage, then the onus of

proof shifts on the defendant. When the plaintiff himself failed to

establish his right over the suit schedule passage, mere non-

production of Municipal Sanction Plan by the defendant itself is

not a valid ground to draw adverse inference against the

defendant. I am fully endorsing the findings recorded by the first

appellate Court. The first appellate Court is fact finding final

court.

17. Having regard to the facts and circumstances of the case, I

am of the considered view that the points raised by the learned

counsel for the appellant-plaintiff will not fall within the ambit of

Section 100 of C.P.C. There is no question of law much less

substantial question of law in this appeal.

18. In the result, the Second Appeal is dismissed. There shall be

no order as to costs. As a sequel, miscellaneous petitions pending,

if any, shall stand closed.

_________________________
T.SUNIL CHOWDARY, J
November 06, 2017.
YS