HON’BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY SECOND APPEAL No.114 OF 2024

JUDGMENT:

This Second Appeal is filed against the judgment and decree dated 13.12.2023 in A.S.No.232 of 2016 passed by the X Additional Chief Judge, City Civil Court, Hyderabad (lower appellate Court), whereby and whereunder the judgment and decree dated 16.08.2016 in O.S.No.3037 of 2011 passed by the VIII Junior Civil Judge, CCC, Hyderabad (trial Court), was confirmed.

2. Appellant is the plaintiff and respondent is the defendant in the suit. For convenience, the parties hereinafter are referred to as they were arrayed in before the trial Court.

3. Brief facts leading to filing of the present second appeal are that the plaintiff filed suit for perpetual injunction against the defendant in respect of the suit schedule property i.e., house bearing Municipal No.18-8- 254/1/A/114/A (plot No.119), admeasuring 237.00 Sq. yards, which is equivalent to 198.15 Sq.Mts., situated at New Rakshapuram Colony, Kanchanag Bagh, Hyderabad. It is stated that the plaintiff acquired part of suit schedule property from his father late Sri Syed Atharuddin Hussain by way of succession along with other legal heirs under registered Release Deed vide Document No.4102/2011, dated 25.11.2011, from his mother Wasiya Sultana and remaining part of the property from his sister by way of unregistered declaration of Lease Deed in his favour. It is further stated that on 14.11.2011, the defendant, who is nothing to do with the suit schedule property, trespassed into the schedule property and tried to grab the property with land grabbers and anti social elements without any legal right or title. Though the plaintiff filed a complaint before the police, they did not take any action against the defendant and advised the plaintiff to approach the civil court. Thereby the plaintiff filed the above suit for perpetual injunction against the defendant in respect of the suit schedule property.

4. Defendant filed written statement denying the averments made by the plaintiff, stating that one Mr. Mohd. Azghar sold Plot No.119 in Sy.No.78, admeasuring 244 Sq.Yds to his wife, by name Kalpana, by way of notarized absolute agreement of sale dated 19.02.2003 by paying entire sale consideration and also paid betterment charges, water connection charges to the welfare society and let out the said property to the adjacent school by name St. Mary’s High School for parking under a Lease Agreement dated 24.11.2008, subsequently, the said lease was duly canceled on 22.04.2010. He further contended that the contents of the entire plaint are false and incorrect.

5. Based on the above pleadings, the trial Court framed the following issues:-

1. Whether the plaintiff is entitled for permanent injunction as prayed for?

2. To what relief?

6. Before the trial Court, on behalf of the plaintiff, PW1 and PW2 were examined and Exs.A1 to A5 were marked. On behalf of the defendant none were examined and no document was marked.

7. After considering the oral and documentary evidence placed on record, the trial Court dismissed the suit vide judgment and decree dated 16.08.2016 with the following observations:-

“The pleading of the plaintiff, clearly says that cause of action arose on 25th day of November, 2011 and on 14.11.2011 when the defendant and his henchmen came to the property and started digging the ground and tried to take illegal possession by trespassing into the property without any legal right ad title. During the cross examination, he categorically stated that it came to his knowledge that the defendant and his wife trying to raise the illegal constructions in the schedule property in the year, 2011. As per his knowledge, in the year, 2008 or 2009 his father requested the school persons not to park their vehicles in the open area, his father not got issued any notice or complaint against the school management. He do not know the defendant his wife, he do not know the Rakshpuram is a colony, where the suit schedule property