THE HON’BLE SRI JUSTICE NARSING RAO NANDIKONDA

JUDGMENT:

This Appeal is filed by the appellant/defendant under Section 96

of CPC against the Judgement and Decree, dated 28.12.2018 passed in OS No.170 of 2011 on the file of the XXVII Additional Chief Judge, City Civil Court, Secunderabad. The plaintiff/appellant herein, earlier filed a suit for perpetual and mandatory injunction and claiming damages for an amount of Rs.10,00,000/- with future interest and

costs against the defendant.

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

referred to as they are arrayed before the learned trial Court.

3. Brief facts of the case are that the appellant/plaintiff herein had earlier filed the suit, vide OS No.170 of 2011 against the defendant No.1 seeking a mandatory injunction directing the defendant No.1 to remove the room in front of the dwelling unit which was encroached upon the open place and to remove the extension of roof on the sides of the dwelling unit on the ground floor, which was constructed in front of his house and further to direct the defendants more particularly defendant No.3 to remove the illegal construction in case the said illegal construction made by defendant No.1 failed to removed

from the dwelling unit.

4. The plaintiff/appellant contended that he is the absolute owner and possessor of the dwelling unit bearing Flat No.184, First Floor, Type IV, Sector-A of survey No.157/1 of Thokatta Village, Secunderabad Cantonment and in Sy No.56/2 of Kakaguda Village, Secunderabad Cantonment. Originally the dwelling unit was constructed by Army welfare organization, New Delhi, which is the parent body of the Defendant No.2- Society (Army Welfare Cooperative Housing Society), for the welfare of the armed persons. The said unit was originally purchased by the Wing Commander T.S.Madhadev, who is the brother of the plaintiff under the housing scheme in the year 1996, thereafter, a regular Gift Settlement Deed was executed in favour of the plaintiff, dated 05.05.2008.

5. Learned counsel for the appellant contended that the dwelling units were constructed over common walls and roof leaving behind open space for air, light and ventilation In the rules framed by the Defendant No.2- Society, no member shall make any alternation to the existing structure occupied over the ground floor without permission and issuance of NOC from the Defendant No.2- Society and the first floor occupants, if any new construction is carried out, the member has to obtain permission from the Defendant No.3- (Secunderabad Cantonment Board).

6. The plaintiff and his wife are doctors and working in U.K., presently plaintiff’s brother who is GPA holder is staying in the dwelling unit. The defendant No.1 taking advantage of the absence of the plaintiff has encroached upon the open space in front of the dwelling unit and constructed a room and also extended the roof area of all the room all around Defendant No.1 dwelling unit. Further, when the plaintiff’s brother visited the dwelling unit in the May, 2011, he came to know about the changes made in the dwelling unit. On information given by the plaintiff brother, Defendant No.2- Society inspected the unauthorized construction and inquired about the same.

7. Due to the illegal construction made by defendant No.1, the plaintiff made a complaint to Defendant No.2- Society about the violation of the rights of the plaintiff, such as, right to privacy, air, light and ventilation and also there is every thread of security, since the illegal construction of room was made, it would be easy to climb up and enter the dwelling units and the construction made by Defendant No.1 are in utter violation of rules and regulations of the Defendant No.2- Society without approval of Defendant No.3.

8. Learned counsel for the plaintiff/appellant further contended that inspite of the complaint given by the plaintiff to Defendant No.2-

Society and Defendant No.3- Cantonment Board, they were not responding to the illegal construction,