THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY SECOND APPEAL No. 703 OF 2014 Dated:24-10-2014 Between:
Mohd. Iqbal ... APPELLANT AND C. Shyam Rao and another .. RESPONDENTS THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY SECOND APPEAL No. 703 OF 2014 JUDGMENT:
The plaintiff in O.S No.2278 of 2009 on the file of the VIII Junior Civil Judge, City Civil Court, Hyderabad filed the second appeal. The suit was filed against the respondents for the relief of perpetual injunction restraining them from carrying any construction without holding necessary sanction from the municipal authorities or in violation of the zoning regulations, particularly those relating to leaving of open space in relation to the property bearing No.18-8-651, Edi Bazar, Kumarwadi, Hyderabad. The appellant pleaded that he purchased site of 57 square yards on the eastern side of the said premises through sale deed dated 16-10-1997 and that he would suffer if any construction is made by the respondents contrary to law. The suit was opposed by the respondents by filing a written statement. According to them, the appellant himself made unauthorised construction without any permission and to grab a public passage, he filed Writ Petition No.4322 of 2002 against the municipal corporation. Reference was made to other proceedings also. The trial Court dismissed the suit through its judgment dated 21-10- 2011. Aggrieved by that, the appellant filed A.S No.2 of 2012 in the Court of III Additional Chief Judge, C i t y Civil Court, Hyderabad. The lower appellate Court dismissed the appeal through judgment dated 02-06-2014. Hence the second appeal.
Heard the learned counsel for the appellant.
On the basis of the pleadings, the trial Court framed the following issues for consideration:
“1. Whether the plaintiff is entitled for permanent injunction as prayed for?
2. To what relief?”
To prove his case, the appellant deposed as PW 1 and filed Exs.A-1 to A-9. On behalf of the respondents, DW 1 was examined and Exs.B-1 to B-5 were filed. The suit was dismissed and the lower appellate Court framed the following point for consideration:
“Whether the appellant succeeded to establish his case for getting a perpetual injunction?”
The appeal was dismissed. The appellant could have claimed the relief of injunction simplicitor if only he was in possession and enjoyment of the property in question. Admittedly, he did not claim any proprietary rights over the property. If the grievance was only about the nature of construction, the appellant ought to have claimed the relief of declaration, and then the relief of injunction. On facts also, the trial Court as well as the lower appellate Court found that the appellant failed to prove his case.
No question of law much less any substantial question of law arises for consideration.
The second appeal is accordingly dismissed.
The miscellaneous petitions filed in this second appeal shall also stand disposed of. There shall be no order as to costs.
L. NARASIMHA REDDY, J 24-10-2014 ks