' This Revision Application No, 147 of 1976 is directed against the judgment of 1st Additional District Judge, Hyderabad (Mr. Abdul Qadir Siddiqui), dated 13th November, 1975, whereby he set aside the judgment of Vth Extra Joint Civil Judge Hyderabad in Suit No, 540 of 1972, dated 30-11-1973. By the latter judgment the learned Extra Joint Civil Judge had decreed the suit of the applicant/plaintiff directing the respondent/defendant to remove unauthorized construction from the public lane.
2. After hearing the learned counsel for the parties and going through the evidence available on record, the Revision Application was dismissed with no order as to costs by short order, dated 11-12- 1984. Following are the reasons in support of the said short order.
3. The facts giving rise to this case are that the plaintiff Faiz Muhammad is residing in his house bearing City Survey No, G/142-282 situating at Kali Road, Hyderabad and the defendant Noor Muhammad is said to be residing opposite to his house. According to the plaintiff's case there is a lane between the two houses which has been in use of the plaintiff for time immemorial. It is alleged that the defendant raised a Paces wall on the said lane and thereby blocked the passage of the plaintiff leading to his house. The plaintiff made an application to Chairman Union Committee No, 19, Hyderabad against the unauthorized wall raised by the defendant, who by his order, dated 25-6-1968 directed the defendant to remove the alleged encroachment. Instead of compliance with his order, the defendant preferred appeal before the Chairman Municipal Committee but the latter dismissed the same vide his order, dated 3rd September, 1968. Thereafter, he filed suit for declaration and injunction calling in question the orders passed by the Chairman Union Committee No, 19 and the Chairman Municipal Committee Hyderabad but the suit was subsequently withdrawn and it was dismissed as such.
4. Having' failed to obtain the desired relief the plaintiff filed a suit for permanent and mandatory injunction against the defendant. It was prayed in the suit that the defendant be directed to remove the unauthorized wall and further be restrained from raising any such construction on the passage in dispute. The learned Vth Extra Joint Civil Judge after considering the evidence adduced by both the parties decreed the suit granting mandatory injunction for removal of the illegal construction from the public lane. Aggrieved by his decision the defendant preferred appeal whereupon the District Judge Hyderabad by his order, dated 6-10-1973 remanded the case to the lower Court with direction that it should be decided afresh after site inspection by the learned trial Judge and hearing both the parties. In compliance of the said order of the appellate Court the learned trial Judge inspected the site and after hearing the parties, he once again by his Judgment, dated 30-11-1973 decreed the suit. The defendant filed appeal against the said Judgment of the trial Court, which was allowed by First Additional District Judge Hyderabad vide his Judgment, dated 13th November, 1976. The present Revision application has been filed from the last mentioned judgment.
5. It was contended by the learned counsel for the applicant/plaintiff that the finding of the learned lower appellate Court that the suit for mandatory injunction was not competent was erroneous: According to him the conclusions reached by the lower appellate Court were based on misappreciation of evidence and moreover the said appellate Court has exercised its jurisdiction beyond the pleadings of the parties.
6. The defendant has averred that suit was not competent as the prayer for mandatory injunction made in the suit was not accompanied by a prayer for declaration. On the basis of this averment, the learned counsel argued that suit was not maintainable and was hit by section 42, Specific Relief Act. For the sake of convenience section 42 is reproduced as under:-- "42. Any person entitled to any legal character or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its direction make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: ' Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so."
On plain reading of the above section it is abundantly clear that the objection raised by the learned counsel for the defendant as to maintainability of the suit is devoid of any substance. The above section does not require that if a suit for injunction is filed, it is necessary to make a prayer also for declaration. The purpose sought to be achieved by the said section is totally different.
What is mandatory A under the above section is that in the case of suit for declaration, it is necessary to pray for consequential relief if it is possible to do so and if no relief is sought, the suit for mere declaration will not be maintainable. But that is not the case here and as such application of section 42 hereinabove is not called for.
' The material issue on which the parties are at variance is whether there exists a public lane between the house of the plaintiff and the house of the defendant and further whether the defendant has raised unauthorized wall on the said public street thereby blocking the passage, of the plaintiff leading to his house. It appears that the parties have only examined themselves in support of their respective case. The plaintiff has sought further support from the two orders: one passed by Chairman Union Committee No, 19 requiring the defendant to remove the unauthorized wall and the other passed by Chairman Municipal Committee dismissing the appeal filed by the defendant. On the other side the defendant has produced P.T.D. indicating that the plot on which the alleged construction has been raised has been transferred to him.
' On perusal of the evidence as well as documents produced by the parties, the admitted position that emerges is that the defendant has raised a wall on the plot adjoining to the plaintiff's house.
The material question however is whether the plot on which the said construc tion has been raised is a public property or property belonging to Municipal Committee and further whether the wall constructed by the defendant on the said plot was unauthorized and without permission of the owner of the plot. The burden to prove this was obviously on the plaintiff. As stated above the plaintiff has only examined himself and produced two orders referred to above. His evidence does not show that the lane on which the defendant is alleged to have raised a wall is a public lane or property of Municipal Committee. On the contrary he has admitted in cross-examination that plot in dispute has been transferred to the defendant. It is further admitted by him that he had gone in appeal against the transfer of the plot to the defendant but his appeal failed. However, his evidence shows that the passage on which the wall has been built was constructed by Municipality. His mere word to this effect is not enough to prove that the passage in dispute is property of the Municipal Committee. The title of the said committee could have been proved by some documentary evidence or by examining any of the officials of the Municipality. But no such evidence has been produced. As stated above the plaintiff's evidence does not prove that the plot on which the wall has been raised is a public property or the property of Municipal Committee.
Even the orders he has produced in support of case do not furnish such proof. There is nothing to show in these orders that the plot on which the alleged unauthorized construction has appeared belongs to Municipal Committee or is a public property. All that is stressed upon in the said orders is that the defendant by raising a wall in question has blocked the passage of the plaintiff. Neither the Chairman Union Committee nor the Chairman Municipal Committee has attempted to show in their orders as to who is the owner of the passage or plot on which the wall has been raised.
' On the other hand the defendant has claimed that he has raised the wall on his own plot which has been transferred to him under the P.T.D. He has produced P.T.D. in support of his claim. As stated above even the plaintiff has admitted in cross-examination that the disputed plot has been transferred to the defendant and his appeal against the transfer had failed. Thus, from the material available on record I am inclined to hold that the passage or plot on which the wall in question has been raised belongs to the defendant and, therefore, the wall constructed by him on his own plot cannot be regarded as unauthorized. If by construction of the wall passage in use of the plaintiff for going to and coming from this house has been blocked, the defendant is not to blame. He was perfectly within his right to have raised the wall on his own plot. It is not the case of the plaintiff, that his any right of easement has been affected. Nor is it pleaded by him that the wall in question has rendered him totally immobile and locked him up within his house. Therefore, it cannot be argued that his movements to and from his house have been completely blocked. For above reasons the orders passed by both the Chairman referred to above were in excess of jurisdiction vested in them and hence without any lawful authority and of no legal effect. Therefore, I see no justification to interfere with the judgment of the learned lower appellate Court which is unexceptionable.
Accordingly as stated above the revision is dismissed.