(Prayer: Appeal under section ---- against orders

IA NO: 1 OF 2006(SAMP 663 OF 2006

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to add respondent Nos. 5 to 7 herein as respondent No.5 to 7 in S.A.No.1211 of 2003 as Legal representatives of 1st respondent and to pass such other order or orders as it may deem fit and proper in the circumstances of the case.

IA NO: 1 OF 2009(SAMP 2046 OF 2009

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased dispose of the SA No. 1211 of 2003 at an early date

IA NO: 1 OF 2018

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to dispose of the S.A.No. 1211 of 2003 at an early date and pass)

1. This second appeal under Section 100 Code of Civil Procedure is directed against the decree and common judgment in A.S.No.144 of 2001 dated 10.07.2003 on the file of the Court of learned IV Additional District Judge, East Godavari at Kakinada.

2. The appellant herein instituted the suit in O.S.No.374 of 1997 before the Court of learned I Additional Junior Civil Judge at Kakinada for declaration of her title over the balcony portion (covered varanda portion) in the 1st floor of C D E F passage of plaint plan, consequentially recovery of possession of the same after evicting the respondents herein therefrom and for permanent injunction restraining them from letting out any used or sullage water into said balcony portion and for costs.

3. Before adverting to the material and evidence on record and nature of findings in the judgment of the trial Court, it is necessary to scan through the case pleaded by the parties in their respective pleadings.

4. The case of the appellant in brief in the plaint was as follows:

                  i). The appellant is the absolute owner of the upstair building bearing Dr.No.43-3-5 situated at market street of Kakinada, consisting of ground and first floors shown as A E F G of plaint plan. The respondent Nos.1 to 3 are brothers and 4th respondent is the wife of the 3rd respondent. The appellant sold the two shop rooms facing the road in the ground floor and the corresponding upstair portion in the first floor to the respondent Nos.1 to 3 under two separate registered sale deeds dated 22.01.1990. The portion sold to respondent Nos.1 to 3 is shown as A B C D in the plaint plan. The sale deed for the northern portion was obtained by respondent Nos.1 and 2 in their name and the sale deed for the southern portion is obtained by the 3rd respondent in the name of his wife i.e., 4th respondent. The appellant retained Sandu on the north of the portion sold to defendant No.1 and 2 to reach her portion of the building situated towards East of the plaint schedule property. The said Sandu is shown as C D E F in the plaint plan. Similarly, in the 1st floor also the balcony portion (covered varanda portion) which is exactly above to the C D E F Sandu of the plaint plan was retained by the plaintiff. The plaint schedule property is sold to respondents as per exact measurements and specific boundaries. None of the respondents have any right whatsoever in the space beyond the C D wall of the plaint plan which is the northern wall of the portion sold to defendant Nos.1 and 2 in the ground and first floor. The respondent Nos.3 and 4 along with their family residing in the entire upstair portion of the plaint schedule property.

                  ii). About one year back, the appellant and her husband observed that the respondents high handedly constructed a wall on the east of the balcony situated exactly over C D E F Sandu of plaint plan across C F points of plaint plan and also a separate latrine is constructed in Western end of the said balcony in the first floor near D E portion of plaint plan and the respondent without providing a septic tank high handedly connected the outlet of the latrine to the drainage pipes which was previously installed by the appellant. The appellant and her husband requested the respondents many a times to remove the said construction and vacate the portion occupied high handedly by them, but they postpone the same.

                  iii). Due to improper maintenance of the said septic latrine, the water started leaking into the ground floor, resulted bad odor emanating into the passage of the appellant in the ground floor. On 23.02.1997, the daughter of the appellant received minor shock due to the said leakage of water, which spoiled the electricity meter and main fuses.

                  iv). On came to know that the respondents are trying to file some suits against her to obtain exparte interim order against the appellant, she filed caveat petitions before the Subordinate Judge at Kakinada as well District Munsif at Kakianda. She also got issued a legal notice dated 01.03.1997 to the respondents called them to remove the wall and septic latrines and other illegal constructions made in the balcony in the first floor above the C D E F passage of plaint plan. But, the respondent refused to receive the same and they got issued a reply notice dated 07.04.1997 belatedly with false allegations. Hence, the suit.

5. The respondent No.3/defendant No.3 denying all the allegations in the plaint and contending in the written statement, which was adopted by the respondent Nos.1, 2 and 4 by filing memo, as follows:

                  i). The appellant sold the entire AEFB portion to the respondent Nos.1 to 3 and they have given the right to use the way only to the appellant. As such, it was agreed upon between the parties at the time of sale transaction. The appellant has no title, possession and absolute right over the passage noted as E D F C in the plaint plan. There is only right to use to the appellant for her ingress and egress. The appellant has no right at all in the balcony corresponding to the E D F C lane.

                  ii). In fact, the balcony of the 1st floor and on the terrace are attached to the wall of the building. The allegation that the appellant retained Sandu on the North of the portion sold to the respondent Nos.1 and 2 is false. It is also false that in the first floor also the balcony portion (covered verandah portion) was retained by the appellant. The schedule given by the appellant is not correct.

                  iii). The respondents purchased the entire building along with the Sandu and balcony. The appellant has no right except right to use the Sandu for her ingress and egress. The respondents filed O.S.No.410 of 1997 for declaration of their title over the Sandu and balconies as they found that the appellant played fraud on them at the time of sale transaction. The balcony of the 1st floor is part and parcel of upstair building portion purchased by the respondents and the appellant has no right, title, interest and possession from the date of sale deed. There is no possibility or necessity to the appellant to use the balcony situated towards North of first floor of the respondents. There is no cause of action to file the present suit. Hence, prays to dismiss the suit with costs.

6. On these pleadings, the Trial Court settled the following issues for trial:

                  “1.Whether the plaintiff is entitled to the relief of declaration of title to the balcony portion in the first floor over the plaint plan marked C D E F portion and for recovery of possession of the same after evicting the Defendants therefrom?

                  2. Whether the Plaintiff is entitled to the relief of injunction on restraining the Defendants from over letting out any used or sullage water into the plaint plan marked C D E F site? and

                  3. To what relief?”

7. During the trial, the present suit in O.S.No.374 of 1997 is clubbed with O.S.No.410 of 1997, which was preferred by the respondents herein for declaration of their title over the disputed portion of the property and for consequential injunction restraining the appellant from interfering with their peaceful possession and enjoyment over the same, vide order dated 16.8.2000 passed in I.A.No.883 of 2000, and common evidence was recovered in O.S.No.374 of 1997 before the Trial Court.

8. At the trial, on behalf of the appellant, her husband was examined as P.W.1 while relying on Exs.A.1 to A.9 in support of her contentions. On behalf of the respondents herein, D.Ws.1 to 3 were examined and Exs.B.1 and B.2 were exhibited.

9. Basing on the material and evidence, Trial Court came to conclusion that the appellant is entitled for recovery of vacant possession of 1st floor over C D E F after evicting the respondents therefrom as well she is entitled for consequential relief of injunction against the respondents, thus, decreed the suit with costs. Further, dismissed the suit in O.S.No.410 of 1997 preferred by the respondents herein, vide common judgment and decree, dated 28.08.2001.

10. It is against this decree and common judgment in O.S.No.374 of 1997, the respondents preferred an appeal before the Court of learned IV Additional District Judge, East Godavari at Kakinada, vide A.S.Nos.144 of 2001 and the said appeal was allowed partly, vide judgment dated 10.07.2003, and the relief granted to the appellant herein by the Trial Court regarding declaration of her title to the balcony portion is disallowed. However, the appeal in A.S.No.181 of 2001 preferred by the respondents herein, against the decree and common judgment in O.S.No.410 of 1997, was dismissed.

11. Aggrieved by the said decree and common judgment, dated 10.07.2003 passed in A.S.No.144 of 2001 by the first Appellate Court, the appellant/plaintiff preferred the present Second Appeal. This Court admitted the present appeal on 19.12.2003 by framing the following substantial questions of law:

                  “a). Whether the right over the immovable property can be held alienated impliedly in view of Section 8 of T.P.Act except relating to the easementary rights?

                  b). Whether the provision of Section 8 of T.P. Act implies that the right over the balcony is alienated by the owner once sale deed is executed relating to 1st floor despite there is a specific description in regard to the property alienated and does not refer about the balcony? and

                  c). Whether the appellate court is correct in holding that in view of Section 8 of Transfer of Property Act, the balcony is part of the main building and as such the plaintiff is not entitled for declaration of title over the balcony even though there is no specific mention about alienating the property with balance?”

12. Heard Sri A.Krishnam Raju, learned counsel for the appellant. None appeared on behalf of the respondents despite of sufficient opportunity.

13. Sri A.Krishnam Raju, learned counsel for the appellant submits that the first Appellate Court failed to appreciate the issue involved in the case in correct perspective; that the balcony above the C D E F lane was not sold to the respondents as evident from recitals of the sale deed under Exs.B.1 and B.2; that the respondents have no right to claim that the balcony was alienated by the appellant; that in the recitals of Exs.B.1 and B.2 not specifically mentioned about the balcony, thereby, it should not be held that the balcony is the part of the main building which is purchased by the respondents; the first Appellate Court erroneously came to the conclusion that Section 8 of T.P. Act implies the right over the balcony once sale deed is executed relating to first floor, thereby, prays to consider the present appeal.

14. To decide the present appeal, this Court of the considered view that it is enough to answer the above substantial questions of law by evaluating the material available on record.

15. POINT NOs.1 to 3:

                  Before deciding the above points, this Court would like to refer certain admitted facts as culled from the record. The appellant is the owner of the entire property and from whom respondent Nos.1 and 2 purchased the northern portion under a separate sale deed. No appeal was preferred by the respondents against the categorical findings of the first Appellate Court that the respondents have no right, title or any claim over the lane C D E F situated on the north of the property covered under Exs.B.1 and B.2, thereby, the appellant entitled for declaration in respect of her lane in C D E F. Even though the balcony forms part of the building purchased by the respondents, they cannot construct latrines and bathroom over the balcony as they do not acquire any absolute right to use the balcony detrimental to the interests of the appellant, thereby, the appellant would be entitled to seek the relief for removal of the septic latrine and bath room constructed in the balcony.

16. Now, the actual question that arises for consideration in this appeal is whether the appellant/plaintiff is entitled for declaration of title in respect of balcony (covered portion lane), which is attached to the building sold to the respondents/defendants.

17. It is the prime contention of the appellant/plaintiff that the balcony portion over the CDEF lane is not sold to the respondents and they have unauthorizedly raised the constructions over the balcony, thereby, damaging the down portion lane wall and electrical fixtures. As such, the appellant claimed for mandatory direction against the respondents for removal of the bath room and lavatory situated in the balcony on the ground that the said balcony does not form part of the building and it is not sold to the respondents under Exs.B.1 and B.2.

18. On perusal of Exs.B.1 and B.2, there is no specific mention about the balcony which is situated towards west and north of the building but the word used as “Meda Bhavanthi”.

19. As per the Section 8 of Transfer of Property Act, it is categorical that “unless a different intention is expressed or necessarily implied a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof… and, where the property is a house, the easements annexed thereto, the rent thereof accruing after the transfer, and the locks, keys, bars, doors, windows and all other things provided for permanent use therewith”

20. It is an admission made by P.W.1 that there are two balconies one on the western side and the another in northern side and there is continuation of construction of ground floor slab and that they are not separate constructions and P.W.1 also admitted that there are doorways into the balcony from the portion of defendant Nos.1 and 2 into the northern side and western side of the first floor.

21. In view of the above, it is an admitted fact that the balcony which is to the west and north is a continuous construction of the ground floor shop of the building would form part of the building sold to the respondents/defendants. No doubt, even there are specific measurements in the sale deeds, the balcony is forms part of the main structure of the building and it can be treated as part of the building only. Thereby, it can be held that though there is no separate recitals in the sale deed, the circumstances goes to shows that the northern balcony is part and parcel of the building sold to the respondents and no separate entity can be attached to it. Thereby, the appellant cannot get any relief of declaration of title in respect of the balcony of the first floor to exclude the right of the respondents in its usage.

22. Having regard to the above discussions, this Court has no hesitation to come to the conclusion that the first Appellate Court is correct in holding that in view of Section 8 of Transfer of Property Act, the balcony is part of the main building and as such the plaintiff is not entitled for declaration of title over the balcony even though there is no specific mention about alienating the property with balance. Thus, these points are answered accordingly.

23. Thereby, this Court does not find any grounds to interfere with the well-articulated common judgment and decree passed by the first Appellate Court, therefore, there are no merits in this second appeal and as such the same is liable to be dismissed.

24. In the result, the second appeal is dismissed by confirming the decree and common judgment dated 10.07.2003 in A.S.No.144 of 2001 on the file of the Court of learned IV Additional District Judge, East Godavari at Kakinada. There shall be no order as to costs

                  Interim orders granted earlier if any, stand vacated. Miscellaneous petitions pending if any, stand closed.