JUDGMENT:

The appellant in A.S.No. 21 of 2015 on the file of the Court of VII Additional District Judge, Bodhan ('the Appellate Court' for short), preferred this appeal challenging the decree and judgment dated 07-12-2015, whereby and whereunder the Appellate Court dismissed the appeal confirming the decree and judgment dated 01-05-2015 passed in O.S.No. 65 of 2010 on the file of the Court of Senior Civil Judge, Bodhan (for short, 'the trial Court').

The appellant was the 1st defendant, respondents 1 and 2 were the plaintiffs and the 3rd respondent was the 2nd defendant before the trial Court. The ranks given to the parties before the trial Court will be adopted throughout this judgment for convenience of reference.

The plaintiffs filed suit O.S.No. 65 of 2010 on the file of the trial Court;

for declaration that they are the owners of eastern side compound wall, for removal of construction raised in the ground floor by way of mandatory injunction and for damages; contending that they are the owners of suit house, surrounded by compound wall, having purchased the same under registered sale deed No. 7709 of 1992 dated 22-10-1992; later, western portion of the house was also purchased by them under registered sale deeds 2056 of 1993 dated 29-05-1993 and 4794 of 2004 dated 21-08-2004; as they were away to their house due to their education at Hyderabad, the 1st defendant, taking advantage of their absence, raised construction with the support of eastern side compound wall in the ground floor and also raised structure for up-stair without leaving any setback and without permission from the municipality; and despite objection, the 2nd defendant-municipality did not take any action to stop the illegal constriction.

The 1st defendant filed written statement denying material allegations inter alia contending that his mother Saidunnisa Begum was the original owner of house bearing No. 2-4-723 in an extent of 311.11 square yards within specified boundaries; she gifted the same to the 1st defendant under registered gift deed bearing document No. 1369 of 1999 dated 03-04-1999; later, the 1st defendant applied for approval of plan for construction of building; after obtaining approval of plan and permission to construct residential house on 19-07-1999, the 1st defendant constructed house strictly adhering to the approved plan; later, the 1st defendant obtained permission for raising additional construction on the existing residential building; again on 27-09-2010, the 1st defendant obtained permission for raising construction on the first floor and, accordingly, constructed but no objection was raised about the construction. It is further contended that, after completion of major part of construction, the plaintiffs conveniently demolished the compound wall, which is 3' away to the building towards west of the 1st defendant's house, and filed the present suit. The 1st defendant left 3' setback towards west of the house but, on account of removal of compound wall, the setback could not be identified; the plaintiffs are not entitled to claim any of the reliefs and, therefore, prayed for dismissal of the suit.

The 2nd defendant also filed written statement with inconsistent plea contending that construction by the 1st defendant was unauthorized as it was without any permission but later admitted that the 1st defendant obtained permission for construction of first floor vide permission dated 27-09-2010 on the existing ground floor and prayed for dismissal of the suit.

Basing on the above pleadings, the trial Court framed the following issues:

1. Whether the plaintiffs 1 and 2 are entitled for declaration of title that they are the absolute owners of eastern side compound wall of the suit schedule house?

2. Whether the plaintiffs are entitled for mandatory injunction directing the first defendant to remove the structures raised on the ground floor abutting the eastern side compound wall of the plaintiff's house without leaving any mandatory set-back?

3.