Judgment:
E. Dharma Rao, J.
1. Aggrieved by the judgment and decree, dated 5-11-2001, passed In A.S. No. 333 of 1999 by the learned XII Additional Chief Judge (Fast Track Court), City Civil Court, Hyderabad, allowing the appeal and setting aside the order and decree dated 30-8-1999 passed in O.S. No. 5477 of 1994 by the learned IX Junior Civil Judge, City Civil Court, Hyderabad, the present appeal is filed.
2. The suit was filed for the grant of perpetual injunction, restraining the defendant from putting any structures on the southern side wall of the plaintiffs house and subsequently it was amended for the grant of mandatory injunction for removing the structures placed on the said wall. It is the case of the plaintiffs that one Abdullah Bin Osman Batuk-father of plaintiffs 1 to 4 and husband of the 4th plaintiff purchased the plaint schedule property, bearing municipal No. 13-4-101, under a registered sale deed dated 20-2-1982 and after his death, the property devolved on them. The defendant is the owner of house bearing No. 13-4-103 lying to the south of the plaint schedule property. It is the case of the plaintiffs that the southern wall of the suit schedule property exclusively belongs to them and the same is shown. In the plan enclosed to the sale deed. The defendant, having no manner of right in respect of the said wall, on 21 -11 -1994 while making unauthorized construction in her premises, has illegally made big holes in the southern wall of the plaintiffs house for the purpose of putting structures thereon. After the grant of Interim Injunction against the defendant, the defendant illegally caused damage to the southern wall of the plaintiffs house and put a load on the said wall in violation of the interim injunction. Therefore, on petition, an Advocate Commissioner was appointed and he filed a report after inspection, which shows that the defendant has put up asbestos sheets on the southern wall of the plaintiffs house. Thus, the plaintiffs sought the relief of mandatory injunction to remove the said structures and for damages of Rs. 10.000/-.
3. The case of the defendant, as can be gathered from the written statement is that the wall on the south of the plaintiffs house is not the exclusive wall of the plaintiffs, but it is a common wall between the plaintiffs and the defendant and it is shown as such in the registered sale deed dated 13-4-1970 executed by Kaneez Mehdi Begum and others. The defendant denied to have made holes in the said wall and put structures on it and contended that the suit is filed to harass the defendant due to previous enmity between her and the plaintiffs.
4. On these rival pleadings, the following issues are settled for trial :
1. Whether the plaintiffs are entitled to the injunction as prayed for
2. To what relief?
5. After amendment of the plaint, the following additional issues were framed :
1. Whether the plaintiffs are entitled for grant of mandatory injunction as prayed for?
2. Whether the plaintiffs are entitled to claim damages as claimed for?
3. To what relied?
6. On behalf of the plaintiffs, the first plaintiff is examined as PW-1 and Exs. A-l to A-6 were marked. On behalf of the defendants DWs 1 and 2 were examined, but no documents were exhibited. The records in respect of the Commissioner's Reports were marked as Exs. C-l to C-6.
7. The trial Court, on an overall appraisal of both oral and documentary evidence, partly decreed the suit granting the relief of mandatory injunction directing the defendant to remove the structures of four roofs put by her with the aid of iron pipes in the southern side of the plaintiffs' house within a period of two months and in case of default therein, the plaintiffs were held entitled to take appropriate steps. The claim with regard to the damages of Rs. 10.000/- was dismissed,
8. Aggrieved of the said judgment and decree, the defendant preferred appeal being AS No. 333 of 1999 and the learned XII Additional Chief Judge, presiding Fast Track Court, City Civil Court. Hyderabad, by the judgment and decree impugned herein, allowed the appeal setting aside the judgment and decree of the trial Court. During pendency of the appeal, the defendant, with permission of the Court, got marked Exs. B-l registered sale deed, dated 14-4-1970, Ex. B-2 plan enclosed to Ex. B-l, Ex. B-3 , English Translation of Ex. B 1, Ex. B-4 Registered sale deed dated 12-3-1966, Ex. B-5 English Translation of Ex. B-4 and E. B-6 sale deed dated 29-10-1960 and Ex. B-7 English translation of Ex. B-6. .The plaintiffs have not assailed the correctness or Otherwise of the action of the lower appellate Courts with regard to the admissibility of the documentary evidence filed before the lower appellate Court, solely on the ground that the plaintiffs 'were given opportunity to cross examine the defendant/DW-1, During the course of cross examination by the plaintiffs', DW-1 deposed as follows :
'...........The Walls of the house in the plan enclosed to Ex. B-6 are shown in red colour. As per the said plan. It is noted that the black colour walls are excluded. In the said plan, the northern side wall is not noted as common wall. There is no reference in respect of any north western room in the said, plan whether it is in existence or dilapidated. The plan enclosed to Ex. B-4 sale deed is similar to the plan enclosed to Ex. B-6 sale deed. It is true that the northern wall in the plans enclosed to Exs. B-4 to B-6 sale deeds is not shown as common wall and as noted in Ex. B-2. I do not exactly remember the measurements of north western room shown in red colour in Ex. B-2. The Commissioner appointed by the trial Court has taken the measurements of that room. It is not true to say that northern wall shown in Ex. B-2 is the exclusive wall of the plaintiff and not the common wall as deposed by me. It is not true to say that after I purchased property under Ex. B-l, the room that was in existence on the north western side was demolished and a new room was constructed resting its roof on the northern wall and caused damage to that wall......'
9. It is further contended that the lower appellate Court without proper appraisal of evidence and without appreciation of the evidence that was elicited during the course of cross examination, merely on the basis of the documentary evidence filed in the appeal, interfered with the matter and set aside the Judgment and decree of the trial Court; observing as follows :
'..........Admittedly, there is a bathroom, W/C and gate on the north eastern side of the defendant's house. If it is a common wall, a gate would not have been allowed to be opened in the said wall. The existence of a room in Ex. B-2 plan which is of the year 1970, on the north western side would also go to show that the suit wall is a common wall. The report of the Commissioner also support the contention of the defendant which is corroborated by the plan enclosed to the sale deed in favour of the defendant which is marked as Ex. B-2, showing the suit wall as a common wall. The trial Court came to a conclusion that it is the exclusive wall of the plaintiffs on the basis of evidence placed before it and as Exs. B-l to B-7 marked in this Court, were not available for trial Court for perusal. Hence, this Court, finds that the suit wall is a common wall based on Ex. B-2 and Ex. A-l also. The judgment and decree of the trial Court in decreeing the suit, holding that the suit wall is the exclusive wall of the plaintiff is therefore, set aside.....'
10. Aggrieved of the said judgment and decree, the present Second Appeal is filed by the plaintiffs, raising the following substantial question of law :
(a) Whether the ownership of compound wall of neighbours traces through the title of the predecessors or through the intermediary title deeds of the parties, if so, what is the effect on rights of the party having title through predecessors against the neighbours having title through different vendors.
(b) Can the Court decide the ownership of the compound wall solely on the basis of the title deeds of the properties by ignoring the title deeds of the predecessors and link documents and such determination of issues will not amount to determination of rights of the parties.
(c) The conclusions arrived at by the lower appellate Court on evidence is perverse, based on surmises and conjectures and contrary to the principles of law regarding jointness or the exclusiveness of the compound wall/party wall.
(d) The power of the appellate Court to arrive at the finding without considering the evidence and judgment of the trial Court constitute proper exercise of the appellate Court Jurisdiction.....,'
11. During the course of hearing of the Second Appeal, with the assistance of both the counsel, I have gone through Exs. B-l to B-7. Ex. Bl is the sale deed executed by Kaneez Mehdi Begum in favour of the defendant under which the house bearing No. 13.4.103, lying to the south of the wall in question was purchased and Ex. B-2 is the plan annexed to Ex. B-1. The vendor of the defendant under Ex. B-l purchased the said property from one Razia Sultana under sale deed dated 12-3-1966 (Ex. B-4) and the vendor of Ex. B-4 purchased the said property under Ex. B-6 sale deed dated 29-10-1960 from one Baquer Ali Khan. Ex. B-6 sale deed does not show the red mark denoting the compound wall. That apart for the first time Ex. B-2 sale deed in which the compound wall is marked in red colour, came into existence in the year 1983. Therefore, it is evident from the perusal of the above document that the compound wall is not the common wall between the predecessors in title of the defendant and the plaintiffs and for the first time in Ex. B-2, it was shown in red colour. Therefore, it can be presumed that, for the reasons best known to the defendant, how Ex. B-2 plan was annexed with Ex. B-l sale deed, though the compound wall was common wall, as can be gathered from Ex. A-2 plan attached with Ex. A-1 sale deed. This piece of evidence well corroborates with the admissions made during cross examination of the defendant as DW-1. that the walls of the house in the plan enclosed to Ex. B-6 are shown in red colour and as per the said plan, it is noted that the black colour walls are excluded. In the said plan, the northern side wall is not noted as common waft it is further admitted by the defendant that there is no reference in respect of any north western room in the said plan whether it is in existence or dilapidated. The plan enclosed to Ex. B-4 sale deed is similar to the plan enclosed to Ex. B-6 sale deed, it is true that the northern wall in the plans enclosed to Exs. B-4 to B-6 sale deeds is not shown as common wall and as noted in Ex. B-2. A bare reading of this portion of evidence makes it abundantly clear that for wrongful gain. the red marked portion is shown in Ex. B-2. The lower appellate Court. has lost sight of this unimpeachable piece of evidence and overlooked the admissions made by DW-1 in her cross-examination that the wall on the northern side is not a common wall, but appears to have been very much carried away by the comparison of Exs. B-2 to B-6, without appreciating the same with relevance to the documents filed by the plaintiff. It is a settled position of law that if the judgment is based on misinterpretation of documentary evidence or consideration of Inadmissible evidence or ignoring material evidence and on a finding of fact has ignored admissions or concessions made by witnesses, this Court can Interfere in second appeal. I am fortified in my view by a decision of the Supreme Court in Yadarao Dajiba Shrawane v. Nanilal Harakchand Shah, : AIR2002SC2849 wherein'at paragraph Md. 31 of the judgments. Their Lordships held as under :
'..........The position is well, settled that when the judgment of, the final Court of fact is based on misinterpretation of documentary evidence or on consideration of inadmissible evidence or ignoring material evidence-the High Court in Second Appeal is entitled to interfere with the judgment. The position is also well settled that admissions of parties or their witnesses are relevant piece of evidence and should be given due weightage by Courts. A finding of fact ignoring such admissions or concessions is vitiated in law and can be interfered with by the High Court in Second Appeal......'
12. That apart, the Apex Court in yet another decision Rattan Dev v. Pasam Devi, : [2002]SUPP2SCR394 , has, in unequivocal terms held that the first appellate Court is bound to apply its mind to all the evidence available on record and then test the legality of the findings arrived at by the trial Court. While doing so, the first appellate Court should also take the factum of the non-examination of the plaintiff also into consideration. Therefore, in the circumstances of that case, it was held that the manner in which the appeal has been disposed of by the first appellate Court cannot be said to be satisfactory and non-application of mind by the appellate Court to other material, though available, and consequent failure of the appellate Court to discharge its judicial obligation, did raise a question of law having a substantial impact on the rights of the parties and thus allowed the second appeal.
13. Applying the ratio that emerges from the above decisions, evidently, the lower appellate Court has lost sight of the material admissions made by the defendant as DW-1, as extracted above and also misinterpreted Ex. B-2, showing the red marked portion, appears to be development made for the first time and does not co-relate with the other documents more particularly in view of Exs. A-l and A-2 and the rectification deed annexed thereto, I have no hesitation in coming to an irresistible conclusion that .the lower appellate Court has not applied its minds in proper perspective in testing the legality of the findings arrived at by the trial Court and therefore, the way the appeal was disposed of by the impugned judgment and decree raises question of law which is having substantial impact on the rights of the plaintiffs. The cumulative effect of the above discussion is that the judgment and decree passed by the lower appellate Court cannot stand to the judicial scrutiny. Therefore, while affirming the Judgment and decree of the trial Court, the judgment and decree impugned herein are set aside and the appeal is accordingly allowed. No order as to costs.