OS No.

130/2016 1 JCJC Pakala

IN THE COURT OF JUNIOR CIVIL JUDGE-CUM-JUDICIAL MAGISTRATE

OF FIRST CLASS, PAKALA
PRESENT: B.DEVENDRA REDDY
JUNIOR CIVIL JUDGE, PAKALA.

Monday, this the 2nd (Second) day of March, 2020

(02-03-2020)

ORIGINAL SUIT No.130 of 2016

Mogarala Shameer Basha ... Plaintif

-Versus-

1. V.Ranganatham @ Ranganatham Naidu

2. V.Uma Maheswar
...Defendants

This suit is coming before me for final hearing on 04-02-2020

in the presence of Sri J.M.Gowri Sankara Raju, Advocate for plaintif,
Sri G.Guruswamy Naidu, Advocate for defendants 1 and 2, upon
perusing the material papers on record, upon hearing arguments on both
sides counsel and having stood over for consideration till this day, this
court delivered the following:-

JUDGMENT

This is a suit filed by plaintif for grant of mandatory injunction

against the defendants 1 and2 for remove the unauthorized

constructions made in the plaint B-schedule property by the defendants

1 and 2 and for costs.

2. The averments in the amended plaint in brief are as

follows:

Originally the suit A-schedule property is a vacant site and

its absolute owners are one G.J.Masthan Saheb and G.J.Khadhar Basha

who were sons of Jaleel Saheb and they jointly sold out the same in

favour of one Sompalle Suresh, S/o Chinnabba Naidu under a registered

sale deed dated 15-2-2001 vide document No.227 of 2001 for valid
OS No. 130/2016 2 JCJC Pakala

consideration and delivered the property. Subsequently the said

Sompalle Suresh, S/o Chinnabba Naidu raised a zinc sheet roofed shed

and sold the same to the plaintif under a registered sale deed dated 0-

4-7-2009 vide Doc.No.1338 of 2009 for valid consideration and since

then the plaintif has been in possession and enjoyment of the suit A-

schedule property, his name is mutated in Gramapanchayath records

and has been paying house tax and electricity charges. The plaintif

also obtained license from the Agricultural Market Committee, Pakala

pertaining to the suit A-schedule property as he is doing seasonal fruit

business and Mango business in the said shed.

2(a) It is further averred in the plaint that the 1 st defendant is

father of 2nd defendant, they purchased the property situated on

southern side of the plaint A-schedule property from the vendor’s of

vendor of the plaintif and raised ground floor within the boundaries of

their property without leaving the site for flowing the rain water and for

other purposes on their northern side (i.e. without set backs) and they

unauthorizedly raised 1st and 2nd floor beyond the property, originally

they owned and possessed and the said structures are constructed

protruding into the plaint A-schedule property to a width of 1(one) feet

north to south and to a length of 76 feet east to west, by taking

advantage of the absence of plaintif as he went to his community

programs (Jamath for 3 months) and after his arrival, he found and

questioned the defendants about the illegal and highhanded acts of

defendants. In the last week of September, 2016, the plaintif

demanded the defendants for removal of plaint B-schedule property, but

OS No. 130/2016 3 JCJC Pakala

they gave evasive answer. The plaintif held mediation through the

elders with defendants, for removal of plaint B-schedule property which

is protruding into the plaint A-schedule, the defendant also agreed to

remove the same, but they did not stand on their words and proceeded

with the construction of the inner wall on the northern side. Again the

plaintif demand them, but they stated to him that they will not remove

the same. From the protruding slabs of 1st and 2nd floors of defendants,

the rain water will fall into the A-schedule property walls and on the zinc

sheets and it will be damaged and the plaintif will be put to serious loss.

Hence the suit.

3. The defendants filed written statement denying all the

averments in the plaint and further contended as follows:

The plaintif filed this suit to get wrongful gain from the

defendants. The plaintif’s property as well as the defendants property

was originally an agricultural lands of G.J.Masthan and G.J.Khadar of

Damalacheruvl village. They formed streets in the said land, started to

sell the land in bits without forming any lay out and fixing of stones

dividing each plot. In the said land, the 2 nd defendant purchased vacant

site from the said two brothers under registered sale deed dated 13-11-

2000 in the suit schedule survey numbers and delivered possession of

the same. Though the vendors mentioned specific extent of site

measuring East to West 89 feet and North to south 30 feet in their sale

deed, but they delivered excess of site with a width of one foot on

western side and 1½ feet on the eastern side to D2. The defendants and

their vendors were not observed the said fact and immediately after is
OS No. 130/2016 4 JCJC Pakala

purchase, D2 raised a thatched shed for the purpose of running mango

mundy (godown) and enjoyed the same for about 15 years with absolute

rights. The Gram Panchayath also allotted D.No.2-264 and he has been

paying tax and also paying market chess to the said thatched shed. The

said structures were in existence upto one year back. The vendor of

plaintif and defendants observed that the defendants are in occupation

of the site with a width of 31 ½ feet. Consequently, the 1 st defendant

pay additional amount for the land which is in their occupation i.e. D1

purchased the said site measuring East to West 89 feet and North to

South 1 ½ feet on the easter side and one(1) foot on the western side

through the registered sale deed dated 23-8-2016 from the vendors of

D2, as D2 is son of D1 who is a software Engineer in a private company

and residing at USA and there by total site which was in possession of

D1 and D2 is 31 ½ feet width.

3(a) D2 initially raised thatched shed in his site by allowing 1 ½

feet on northern side of the shed for the purpose of collecting rain water

and now the slab is extended upto that portion on north, thus D1 and D2

are in possession till today. The plaintif’s site and building are situated

beyond that 1½ feet on the northern side. The plaintif raised his sheet

roof building by leaving his space on his northern side of plaint A

schedule mentioned property and constructed building on southern side.

The defendants deposited the registered sale deed dated 13-11-2000 in

LIC, Tirupati and availed loan and thus the defendants 1 and2

constructed their building within the site purchased by them and they

have not encroached into the plaintif’s property. The plaintif is their
OS No. 130/2016 5 JCJC Pakala

neighbour and also well aware of the facts that D1 constructed building

with the help of D2 and completed ground, 1 st and 2nd floors. At the time

of construction, D1 and D2 constructed with a width of 29 ½ feet (outer

measurements of the building) and allowed space on the northern side

and extended slab upto 11 inches. The said slab is also within their site,

the plaintif is nothing to do with the said slab. The plaintif has no right

to sought for removal of the slab of the defendant.

3(b) The defendants further contended that they raised

structures upto their site, which is in their possession and they never

encroached into the site of the plaintif. The alleged plaint B-schedule

property is within the site purchased by the defendants, their vendors

and there is no place protruding into the plaint A-schedule mentioned

property. The plaintif never demanded them to remove the slab before

filing of the suit. The plaintif has observing the day to construction of

their building and after completion of the work, the plaintif come

forward to file the suit with a view to black mail he defendants and to

get wrongful gain and he well aware that D2 is residing at USA for the

last 15 years and there is no need to remove the construction of the

building of them. Hence, the plaintif is not entitled to seek the relief of

mandatory injunction in respect of alleged B-schedule mentioned

property. Hence prayed to dismiss the suit with costs.

4. Basing on the above pleadings, the following issues are

settled for trial:

(1) Whether the plaintiff is entitled for grant of

mandatory injunction to remove the unauthorized
construction by D1 and D2 as prayed for?
 OS No. 130/2016 6 JCJC Pakala

(2) To what relief?

5. On behalf of plaintif, himself is examined as PW1 and other

witnesses are examined as PWs 2 and 3 and Exs.A1 to A6 are marked. On behalf

of the defendants, 1st defendant himself is examined as DW1 and another witness

is examined as DW2 and marked Exs.B1 and B2. The Advocate Commissioner is

examined as CW1 and Exs.C1 to C3 are marked through him.

6. Heard arguments of the learned counsel on both sides. Perused

the material on record.

7. Issue No.1:

Whether the plaintiff is entitled for grant of

mandatory injunction to remove the
unauthorized construction by D1 and D2 as
prayed for?

To grant mandatory injunction the burden lies on the

plaintif to prove that D1 and D2 illegally made construction in B’

schedule property by protruding into A’ schedule property. To discharge

the said burden the plaintif himself is examined as PW1, two more

witnesses are examined as Pws 2 and 3 and also marked Ex.A1 to A6.

8. PW1 deposed that, the original owners namely

G.J.Masthan Saheb and G.J.Khadar Saheb jointly sold the A’ schedule

property in favour of one Sompalli Suresh under Ex.A2/registered sale

deed dated 15.02.2001, subsequently the aforesaid Sompalli Suresh

raised a zinc sheet roof shed and he was in the possession and

enjoyment of the same with absolute rights, the said Sompalli Suresh

sold the A’ Schedule property to the plaintif under Ex.A1/registered sale

deed dated 04.07.2009 and since then he has been in possession and
OS No. 130/2016 7 JCJC Pakala

enjoyment of the same. PW1 further deposed that, he obtained

electricity connection and he has been paying electricity consumption

charges, his name also mutated in the Grampanchayath records of

Damalacheruvu, he has been paying house tax to the A’ schedule

property zinc sheet roofed shed, the Agricultural Market Committee,

Pakala also issued license to him to do seasonal fruits business in the A’

schedule shed and he has been doing business.

9. PW1 further deposed that, D1 and D2 are having their own

property on the southern side of plaint `A’ schedule property which was

purchased by them from his vendor’s vendors, they raised ground floor

within the boundaries of their property without leaving the site for

flowing the rain water and for white wash and other purposes on their

northern side (without set backs), unauthorized raised structures in 1 st

and 2nd floors beyond the property originally they owned and possessed

and the said structures are constructed protruding into the plaint A’

schedule property of him to a width of one foot north to south and to a

length of 76 feet east to west which is more fully detailed as B’ schedule

property taking advantage of his absence for a while when he was out of

town due to his community programs i.e., Jamath for three months. PW1

further deposed that after his arrival having found the above said fact

when he questioned the illegal and high handed acts of defendants for

removal of illegal construction the defendants gave evasive replies,

hence he convened mediations through elders for removal of the

protruding portion but the defendants did not remove the same. PW1

further deposed that, due to the protruding of the slab of 1 st and 2nd floor
OS No. 130/2016 8 JCJC Pakala

of the defendants building into the plaint A’ schedule property of him,

the rain water will wall into the plaint A’ schedule property walls and on

the zinc sheets and it will be damaged and he will be put to heavy loss

and hardship.

10. In the cross examination PW1 admitted that, in Ex.A2 the

southern boundary is mentioned as the site of D2, as the on the date of

his purchase of `A’ schedule property his vendor constructed a sheet

roofed house in it and it is a down gradient towards northern side and

the rain water which is fallen on his zinc sheet roofed house will fall

towards norther side of the zinc sheet roofed shed. PW1 further admitted

that at the time of purchasing site by him under Ex.A1, in the site

purchased by the defendants there was a thatched house, the rain water

will flow from the said thatched house either side of the thatched house

i.e., southern side and northern side and the said thatched house was

used by the defendants as mango mundi. PW1 stated that, the

defendants started the construction of their building five or six months

prior to the filing of the suit and as on the date of filing of the suit by him

two floors were completed and third floor construction was going on.

PW1 further stated that the defendants laid slab to their house 10 to 15

feet height from the ground level. He denied a suggestion that A’

schedule property is as it is in existence. He denied a suggestion that

the defendant did not protrude any slab into his property.

11. To prove that the plaintif purchased the suit `A’ schedule

property from one Suresh he filed Ex.A1/registered sale deed dated 04-

07-2009. Plaintif also filed Ex.A2/registered sale deed dated 15-02-2001.

OS No. 130/2016 9 JCJC Pakala

A perusal of Ex.A2/registered sale deed it is clear that one Suresh

purchased A’ schedule property from G.J.Masthan Saheb and G.J.Khadar

Saheb. The said Suresh sold the A’ schedule property to the plaintif

under Ex.A1/registered sale deed dated 04-07-2009. To prove that the

plaintif obtained license from Agricultural Market Committee, Pakala, he

filed Ex.A3/license. To show that the plaintif paid house tax he filed

Ex.A4/house tax receipt and also filed Ex.A5/electricity consumption

demand notice to show that he has been paying electricity consumption

charges to the shed situated in A’ schedule and also filed Ex.A6/photos

three in number along with CD.

12. In support of the evidence of PW1, Pws 2 and 3 are

examined. PW2 deposed that, he is the first attestor of Ex.A1/registered

sale deed under which the plaintif purchased the suit A’ schedule

property from S.Suresh. PW2 further deposed that, after purchasing the

suit A’ schedule property wherein a zinc sheet roofed shed is situated,

has been enjoying the plaintif by paying house tax and also electricity

consumption charges and doing mango business by obtaining license

from the Agricultural Market Committee, Pakala.

13. PW2 further deposed that, D1 and D2 are having their

own property on the southern side of plaint `A’ schedule property which

was purchased by them from the vendor’s vendor of PW1, they raised

ground floor within the boundaries of their property without leaving the

site for flowing the rain water and for white wash and other purposes on

their northern side (without set backs), unauthorized raised structures in

1st and 2nd floors beyond the property originally they owned and
OS No. 130/2016 10 JCJC Pakala

possessed and the said structures are constructed protruding into the

plaint A’ schedule property of PW1 to a width of one foot north to south

and to a length of 76 feet east to west which is more fully detailed as B’

schedule property taking advantage of PW1 absence for a while when he

was out of town due to his community programs i.e., Jamath for three

months. PW2 further deposed that after arrival of PW1, PW1 having

found the above said fact when he questioned the illegal and high

handed acts of defendants for removal of illegal construction the

defendants gave evasive replies, hence PW1 convened mediations

through elders for removal of the protruding portion but the defendants

did not remove the same. PW2 further deposed that, due to the

protruding of the slab of 1 st and 2nd floor of the defendants building into

the plaint `A’ schedule property of PW1, the rain water will fall into the

plaint `A’ schedule property walls and on the zinc sheets and it will be

damaged and PW1 will be put to heavy loss and hardship. PW2 further

deposed that in spite of several mediations among the village elders the

defendants did not cared their words, hence himself and other elders

advised PW1 to approach the court.

14. PW2 admitted that as on the date of purchased the site

under Ex.A1 by the plaintif in the said site there was an iron sheet

roofed shed is situated and now also the same shed is in existence. He

further stated that as on the date of Ex.A1 there was thatched mango

mundi of defendants on the southern side of the A’ schedule property

and later defendants constructed a house in the place of said thatched

mango mundi and as on the date of Ex.A1/registered sale deed there a

OS No. 130/2016 11 JCJC Pakala

stone plank wall on the southern and northern side of said thatched

mango mundi, the water wall on the thatched house of the defendants

will wall beyond the stone plank wall on the northern side, the place

where the rain water wall from the thatched house of the defendants is

the place of plaintif. PW2 voluntarily said that after the stone slab wall

half foot belongs to the defendants. He denied a suggestion that after

the stone slab wall one to one and half feet belongs to the defendants.

15. PW3 deposed that, after purchasing the suit A’ schedule

property wherein a zinc sheet roofed shed is situated, has been enjoying

the plaintif by paying house tax and also electricity consumption

charges and doing mango business by obtaining license from the

Agricultural Market Committee, Pakala. PW3 further deposed that, D1

and D2 are having their own property on the southern side of plaint A’

schedule property which was purchased by them from the vendor’s

vendor of PW1, they raised ground floor within the boundaries of their

property without leaving the site for flowing the rain water and for white

wash and other purposes on their northern side (without set backs),

unauthorizedly raised structures in 1st and 2nd floors beyond the property

originally they owned and possessed and the said structures are

constructed protruding into the plaint A’ schedule property of him to a

width of one foot north to south and to a length of 76 feet east to west

which is more fully detailed as B’ schedule property taking advantage of

the absence of PW1, for a while when PW1 was out of town due to his

community programs i.e., Jamath for three months. PW3 further deposed

that after arrival of PW1, PW1 having found the above said fact when he
OS No. 130/2016 12 JCJC Pakala

questioned the illegal and high handed acts of defendants for removal of

illegal construction the defendants gave evasive replies, hence PW1

convened mediations through elders for removal of the protruding

portion but the defendants did not remove the same. PW2 further

deposed that, due to the protruding of the slab of 1 st and 2nd floor of the

defendants building into the plaint A’ schedule property of PW1, the rain

water will fall into the plaint A’ schedule property walls and on the zinc

sheets and it will be damaged and PW1 will be put to heavy loss and

hardship. PW3 further deposed that he convened mediations through the

elders and well wishers to remove the B’ schedule property which is

protruding into the A’ schedule property of the plaintif, the defendants

agreed to remove the same but they did not stand on their words,

hence himself and other elders advised PW1 to approach the court.

16. In the cross examination PW3 stated that he did not

remember the date, month and year of conducting mediation between

the plaintif and the defendants. He admitted that there is a disputes

with regard to site between the shed of the plaintif and house of the

defendants. He denied a suggestion that he did not conduct mediation

between the plaintif and defendants.

17. On behalf of the defendants the 1st defendant is examined

as DW1. He deposed that, the plaint schedule was originally an

agricultural lands of G.J.Masthan and G.J.Khadar of Damalcheruvu

village, they formed streets in their land and sold the land in bits in the

form of vacant sites without forming layout and fixing stones dividing

each plot, his son D2 purchased a vacant site from the said two persons
OS No. 130/2016 13 JCJC Pakala

under Ex.B1/registered sale deed by retaining the land on northern side,

later they raised a thatched shed in the site purchased by D2 for the

purpose of Mango mundi and enjoying the same for about 15 years with

absolute rights, they also paid house tax to Grampanchayat,

Damalcheruvu. He further deposed that, though the vendors mentioned

specific extent of site measuring of site east to west 89 feet and north to

south 30 feet in Ex.B1/registered sale deed but delivered possession

excess of site with a width of one foot on western side and one and half

foot on the eastern side to D2 within the boundaries mentioned

specifically in the said registered sale deed without observing the said

fact they raised the said thatched shed facing towards east into the road

left for plots, and the roof of the thatched shed was in reverse “V’ shape,

the rain water falling on the roof of the said thatched shed flows towards

northern side as well as on its southern side in an extent of site with a

width of one to one and half foot on either side, they were not observed

the said fact and raised a thatched house, the structures were in

existence up to one year prior to filing of the suit.

18. DW1 further deposed that he and the vendors of the

defendants observed that they are in occupation of the site with a width

of 31½ feet, hence they demanded to pay the additional amount for the

land which is in their (defendants) occupation,hence to avoid the

technical problems he purchased the site which is in his occupation on

the northern side measuring east to west 89 feet and north to south 1½

feet on the eastern side and one feet on the western side through

Ex.B2/registered sale deed, from the same one of the original vendor
OS No. 130/2016 14 JCJC Pakala

and heir of one of another vendor, there by the total site which was in

their possession is with a width of 31½ feet which includes the site

purchased by him. DW1 further deposed that they are in possession and

enjoyment of site measuring east to west 89 feet and north to south

31½ feet on the eastern side and 31 feet on the western side from the

date of their purchase, about five months prior to filing of the suit they

constructed a two stored building therein with a width of 29 ½ feet by

leaving place on the southern side, they also raised second floor in the

western side half of the first floor of the said building. DW1 further

deposed that before starting constructions of the building they left a

vacant site with a width of one to one and half feet on the northern side

which is in the place where the rain water was flowing from their

thatched shed and built the building, thus there was one and half feet

gap on the northern side of the thatched mundi which was being used

for the purpose of collecting rain water, the same has been in possession

of him and his son till today. He further deposed that at the same time

the plaintif’s site and building are situated beyond the said one and half

feet site on the northern side built by the vendors of the plaintif in his

site and the plaintif raised sheet roofed building by leaving his space on

his northern side of the plaint A’ schedule property and he has not left

any place on the southern side of the building, the plaintif built his

building on the extreme southern side of his site by leaving place on the

northern side. DW1 further deposed that the plaintif who is his

neighbour well aware of the said fact and never denied their right and

title in respect of the site which is in their possession, while constructing

the building by them with a width of 29½ feet (outer measurement of

OS No. 130/2016 15 JCJC Pakala

the building) and allowed space on the northern side and extended slab

up to 11 inches on the northern side. DW1 further deposed that they

alleged plaint A’ schedule property is within the site purchased by him

and his son, the plaintif never demanded them to remove the slab

before the filing of the suit, the plaintif had been observing day to day

construction of the his building and never raised any objection in

constructing the building, after completion of the work of their building

the plaintif had come forward to file this suit with a view to black mail

him to get wrongful gain from him and his son, hence the plaintif has no

right to sought for removal of the slab which is constructed in the area

purchased by him and his son.

19. In the cross examination DW1 stated that, the

measurement of his site are east to west 89 feet and north to south 30

feet. DW1 voluntarily said that as on the date of purchasing the site by

him his vendor left one foot place on the souther side of his site. DW1

admitted that as per Ex.A2/sale deed the measurement of the site is

east – west 86 feet, north – south 30 feet, in the said site the

measurement of the shed is east – west 63.9 feet, north – south 25.03

feet, the said site was purchased by the plaintif from Suresh/DW2 under

Ex.A2/sale deed, by that time in the said site there was a shed. He

denied a suggestion that in the absence of plaintif he constructed his

house without leaving any place on northern side. DW1 stated that he

left four inches of his site on the southern side of his building. He

admitted that he purchased one foot site under Ex.B2 in the year 2016

in which year this suit is filed. DW1 voluntarily said that after purchasing
OS No. 130/2016 16 JCJC Pakala

one foot site under Ex.B2 the plaintif filed this suit. He denied a

suggestion that his vendor’s vendors have no right to sell one foot site to

him under Ex.B2 as they already sold the said one foot to the vendor of

plaintif. He denied a suggestion that he laid slab one foot excess on the

northern side of his building.

20. In support of the evidence of DW1, DW2/S.Suresh is

examined. He deposed that he purchased the site from G.J.Mastan and

his son which is situated on the northern side of mango thatched mundy

of defendants, in the year 2001, with a width of 30 feet and built a shed

with iron shed roof adjacent to the northern side edge of the roof of

sapari wherein rain water was flowing from sapari. He further deposed

that he has not left any place on the southern side except the edge of

the pace where he laid foundation, he sold the said site along with shed

in favour of the plaintif in the year 2009. He further deposed that there

may be site with a width of 2 to 3 inches beyond the brick wall on the

south of the shed, the remaining site was in possession of defendants.

He further deposed that his vacant site is on the northern side of the

sheet roofed shed , but not on the southern side. He further deposed

that the place between defendants building and the shed which he sold

to the plaintif was not in his possession.

21. In the cross examination DW2 denied a suggestion that he

left some place on the southern side of his zinc sheet roofed shed as a

on the date of Ex.A1 and raised zinc sheet roofed shed. He further

denied a suggestion that the defendants constructed building without

OS No. 130/2016 17 JCJC Pakala

leaving any place, but he laid slab of the building in all floors by

projecting one foot into the site of plaintif.

22. From the above evidence of PWs 1 to 3, DWs 1 and 2 and

Exs.A1 and A2 and Exs.B1 and B2, it can be said that the plaintif

purchased site including iron sheet roofed shed from DW2 and as per the

evidence of DW2 there is no vacate site on the southern side of the said

shed of him. So, the plaintif has no right to claim that the rain water is

falling into the site which is situated on the southern side of his shed

from the building of defendants. If the defendants are encroached into

the site of plaintif and constructed any thing then only the plaintif has

right to seek the relief of mandatory injunction to remove the

encroached portion.

23. In this suit an advocate commissioner is appointed, he

visited the suit schedule property and filed his report along with rough

sketch and also examined as CW-1, through him Exs.C1 to C3 are

marked.

As per the evidence of CW1 and also Exs.C1 and C2 i.e.

reported and rough sketch, the measurements of the site and shed of

plaintif from north to south 4.10 feet + 25.4 feet, in total 29.50. As per

Ex.A1 and A2, the measurements of the site and shed of plaintif is from

north to south is 30 feet. In Ex.A2 southern boundary is shown as his

remaining site i.e., the site of defendants, which site defendants were

purchased from the vendor’s vendor of plaintif. There is no dispute with

regard to the measurements of site and shed of plaintif from east to

west. When compared the measurements of Exs.A1 and A2 with the

OS No. 130/2016 18 JCJC Pakala

measurements of Ex.C2 rough sketch from north to south there is

diference of half foot. As per Exs.C1 and C2 report and rough sketch

and CW1 evidence, there is 1.4 feet gap on southern side of the shed of

plaintif on western side and 2.4 feet gap on the eastern side of the shed

of plaintif. For arguments sake but not accepted even it is presumed

that half foot site on southern side of plaintif shed is that of plaintif, the

protruded portion (open to sky) i.e. B-schedule place does not cover the

said half foot. As per the evidence of DW2 who is vendor of plaintif

under Ex.A1 sale deed stated that he sold till the edge of his shed on

southern side, he had not left any pace on southern side of the shed.

So, the plaintif is not entitled to seek the relief of mandatory injunction

to remove B-schedule mentioned portion by the defendants.

24. As per Ex.C1 and C2, the defendants building measurements

are 29.6 feet + 1 foot from south to north in total 30.6 feet. As per

Ex.B1, D2 purchased 30 feet from north to south. There is no dispute

with regard to east to west measurements. So, when compared the

measurements of the house of defendant including sun shade on

northern side with Ex.B1 sale deed, the defendants are protruded half

foot sun shade on its northern side, from east to west (open to sky). As

discussed supra, the said half foot is not protruded by the defendants

into the site of plaintif. So, the plaintif no right to seek mandatory

injunction against defendants to remove the side half foot. To avoid

dispute, the defendants also purchased the left over site between the

building of them and shed of plaintif from its rightful owner under Ex.B2

sale deed. Since defendants filed Ex.B2, the learned counsel for plaintif

argued that the vendors of Ex.B2 have no right to sell the site under
OS No. 130/2016 19 JCJC Pakala

Ex.B2, as there is no mention in the documents of plaintif and

defendants i.e. in Exs.A1, A2 and B1 about the site situated on the

southern side of the shed of plaintif, and that Ex.B2 is a created

document for the purpose of this suit. In reply to the said arguments,

the learned counsel for defendants argued that remaining site between

plaintif shed and defendants building is 1½ feet on eastern side and one

foot on western side is a left over site by the vendors, hence, later they

sold the same to defendants under Ex.B2, as the plaintif is disputing

about the said left over site. So, the sale under Ex.B2 is valid one and

Ex.B2 is not a created document. As the defendants purchased 1½ feet

on eastern side and one foot western side of their building northern side,

under Ex.B2/registered sale deed, they have right to built sun share or

protrude into the said site. As discussed supra, this court come to a

conclusion that the defendants has not protruded any construction as

mentioned in ‘B’ schedule into the site of plaintif and as rain water from

the building of defendants is not falling into the site of plaintif as it is

falling in to ’B` schedule site which site is not the site of plaintif, the

plaintif is not entitled to the mandatory injunction as sought for. Hence

the issue is answered in favour of defendants and against plaintif.

25. Issue No.2:- To what relief?

In the result, the suit is dismissed with costs.

Typed to my dictation, corrected and pronounced by me in

the open Court on this the 2nd day of March, 2020.

Sd/- B.Devendra Reddy,

Junior Civil Judge, Pakala.
OS No. 130/2016 20 JCJC Pakala

APPENDIX OF EVIDENCE
WITNESSES EXAMINED FOR
PLAINTIFF DEFENDANTS
PW-1 : M.Shameer Basha D.W-1:V.Ranganatham Naidu.
PW-2 : A.Masthan D.W-2: S.Suresh
PW-3 : P.Imam Saheb
ADVOCATE COMMISSIONERS:
CW-1 : Sri G.Chandra Mohan, Advocate
EXHIBITS MARKED FOR PLAINTIFF :
Ex.A1 Registered sale deed dated 04-07-2009 executed in favour
of M.Shameer Basha by S.Suresh vide Doc.1338 of 2009.
Ex.A2 Registered sale deed dated 15-02-2001 executed in favour
of S.Suresh by G.J.Masthan Saheb and G.J.Khader Basha
vide Doc.227 of 2001.
Ex.A3 License issued in the name of plaintif by the Agricultural
market committee, Pakala dated 25-07-2012.
Ex.A4 House tax receipts dated 4-1-2016 issued by Panchayath
Secretary, Damalacheruvu Grampanchayath.
Ex.A5 Electricity consumption demand notices issued in the name
of plaintif.
Ex.A6 Photos (3 in nos.) along with C.D.

EXHIBITS MARKED FOR DEFENDANT:

Ex.B1 Certified copy of Registered sale deed dated 13-11-2000
executed by G.J.Masthan Saheb and G.J.Khadar Basha in
favour of D2.
Ex.B2 Original registered sale deed dated 23-8-2016 executed by
G.J.Khadar Basha and G.Tippu Sultan in favour of D1.

EXHIBITS MARKED IN “C” SERIES THROUGH ADVOCATE COMMISSIONER:

Ex.C1 Commissioner report of CW-1.

Ex.C2 Rough sketch.
Ex.C3 Photographs (4 in nos.) with CD.
Sd/- B.Devendra Reddy,
Junior Civil Judge,
Pakala.
// True copy //
Sd/- B.Devendra Reddy,
Junior Civil Judge,
Pakala.

Fair judgment in OS 130/2016

dated 02.03.2020, JCJC, Pakala