HON’BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY WRIT PETITION No.3761 of 2014

ORDER:

This writ petition is filed seeking following relief:

“To declare the notice in ROC No.CP/38013/2013, dated 26.12.2013, issued by the 1^st respondent at the instance of 2^nd respondent under Section 397 (1) and (2) and 402 (1) and (2) of HMC Act, 1955 r/w AP Municipal Corporation Act, 1994, directing the petitioner to remove the obstruction alleged to have caused by the petitioner on 5 feet common passage on the eastern side of petitioner house bearing No.11-4-1429, situated at Shivanagar, Warangal, as illegal and arbitrary.”

2. Heard Sri Kedarnath, learned counsel representing Sri Jithender Rao Veeramalla, learned counsel for the petitioners, Sri Pasham Mohith Reddy, learned Standing counsel for respondent No.1 and Sri J. Venkateswara Reddy, learned counsel for respondent No.2.

3. Learned counsel for the petitioners submitted that petitioners are the owners of house bearing municipal No.16-4- 1429, situated at Shiva Nagar, Warangal, admeasuring 118.21 square yards, having acquired the same under registered sale deed No.1795 of 2005, dated 25.02.2005 and they are in possession and enjoyment of the same and their names are also mutated in the municipal records; that petitioners obtained permission from respondent No.1 for construction of G+1 RCC building vide permit No.84 of 2007, dated 12.11.2007, and completed the construction. He further submitted that in the sale deed executed in favour of petitioners the eastern side boundary was wrongly mentioned as common passage instead of own passage, however, in the link document of petitioners, it is mentioned as own passage; that respondent No.2, who is the neighbor and owner of property bearing H.No.16-4-1125/1, tried to interfere with the portion of passage of petitioners; and the petitioners filed a suit vide O.S.No.1177 of 20098, on the file of II Additional Junior Civil Judge, Warangal and the same was decreed on 22.11.2010 and no appeal has been filed against the said Order; that the respondent No.2 filed a suit vide O.S.No.543 of 2010, on the file of Principal Junior Civil Judge, Warangal, against the petitioners and the same was decreed on 14.08.2013 and basing on the said decree dated 14.08.2013, respondent No.1 issued proceedings dated 18.11.2013, calling for the relevant material from the petitioners, for taking necessary action and accordingly, petitioners have adduced all the evidence. But, without considering the same, respondent No.1 issued impugned notice dated 26.12.2013 to remove the alleged obstruction within seven days. Aggrieved by the same, present writ petition is filed.

4. Learned counsel for respondent No.2 would submit that petitioners obstructed the common passage and raised structures; that respondent No.2 filed suit vide O.S.No.543 of 2010 for permanent and mandatory injunction on the file of learned Principal Junior Civil Judge, Warangal and the said suit was decreed vide judgment and decree dated 14.08.2013, restraining the petitioners permanently from interfering into peaceful enjoyment of respondent No.2 property and further respondent No.1, who is defendant No.3 in the said suit was directed to remove the obstruction caused by the petitioners. Pursuant to the said decree passed in O.S.No.543 of 2010, respondent No.1 corporation has issued notice dated 26.12.2013, directing the petitioners herein to remove obstruction. Learned counsel for the respondent No.2 further submitted that against the judgment in O.S.No.543 of 2010, petitioners preferred an appeal vide A.S.No.84 of 2014, before the Principal District Judge, Warangal, and the same was dismissed vide judgment and decree dated 26.11.2015, on the ground that copy of judgment and decree in O.S.No.1177 of 2009 dated 22.11.2010 has not placed on record. Aggrieved by the same, petitioners preferred Second Appeal vide S.A.No.213 of 2016 and the same was also dismissed vide judgment and decree dated 11.03.2016.

5. Learned Standi