Madras High Court
M/S.Arul Constructions vs Arul Villa Flats Welfare ... on 8 April, 2022
S.A.No.212 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.04.2022
CORAM
THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH
S.A.No.212 of 2016
1.M/s.Arul Constructions,
whose exact construction is not known to the plaintiff
and is represented by de-jure facto person
A.Bright Vinohar, S/o.Arun Mani
“Embassy Towers”, No.1, 2nd Floor,
No.55, Montieth Road, Egmore, Chennai – 600 008.
2.A.Bright Vinohar
3.Deepika Vinohar ...Appellants
Vs.
Arul Villa Flats Welfare Association,
Rep. by its President & Secretary,
R.Krishnan & K.Sriramulu
No.336/4, Main Road, Kamaraj Nagar,
Avadi,
Chennai – 600 071. ... Respondent
PRAYER : Second Appeal filed under Section 100 of C.P.C., against the
Judgment and Decree dated 15.09.2014 in A.S.No.65 of 2013 on the file of
the Court of the Subordinate Judge, Poonamallee, reversing the judgment
and decree dated 24.06.2013 made in O.S.No.105 of 2009 on the file of the
Principal District Munsif, Poonamallee.
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For Appellants : Mr.T.Dhanasekaran
For Respondent : Mr.V.Raghavachari
Ms.V.Srimathi
JUDGMENT
The defendants are the appellants in the Second Appeal.
2.The respondent/plaintiff which is a Flat Association filed the suit
against the defendants who are the promoters, seeking for the relief of
permanent injunction restraining the defendants from in any manner
disturbing with the peaceful possession and enjoyment of the suit property
and from dealing with the suit property.
3.The case of the plaintiff Association is that the Association members
had purchased undivided shares of land from the 2nd defendant and they had
independently approached the promoters for purchase of flats. The grievance
of the plaintiff was that the defendants attempted to take possession of the
2nd floor and sell the same to third parties when they had already sold the
entire undivided shares and the flats were also handed over and the plaintiff
Association had taken control of the common area. Hence, the plaintiff
Association sought for the relief of permanent injunction.
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4.The defendants filed the written statement and took a stand that the
members of the plaintiff Association had entered into Sale agreements and
Builders agreements with respect to their respective flats with the 2 nd
defendant. Their respective shares were also sold and the flats were also
handed over. A specific defence taken by the defendants is that 796 Sq.Ft. of
undivided share still continues with the defendants and it pertains to the flat
that is available in the second floor. Therefore, the defendants took a stand
that the plaintiff Association does not have the right to seek for the relief of
permanent injunction as against the co-owner of the property. Accordingly,
the defendants sought for the dismissal of the suit.
5.The trial Court on considering the facts and circumstances of the
case and after appreciating the oral and documentary evidence, was pleased
to dismiss the suit in entirety through Judgment and Decree dated
24.06.2013. Aggrieved by the same, the plaintiff Association filed an appeal
before the Sub Court, Poonamalle in A.S.No.65 of 2013. The lower Appellate
Court on re-appreciation of the oral and documentary evidence and after
considering the findings of the trial Court, came to a categoric finding that
PW1 had admitted in his evidence that the defendants have retained 752
Sq.ft. of undivided share in the property. However, PW1 had also stated that
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the defendants had put up a construction in excess of the undivided share
and there was a deviation from the original plan. The lower Appellate Court
found that the defendants had not taken any steps to regularize the
deviation and the lower Appellate Court therefore thought it fit to partly
allow the appeal by granting permanent injunction restraining the
defendants from alienating or encumbering the suit property till they get the
regularization from the concerned authority. Aggrieved by the same, the
defendants have filed this Second Appeal.
6.Heard the learned counsel for the appellants and the learned counsel
appearing on behalf of the respondent.
7.This Court also carefully perused the materials available on record
and the findings of both the Courts below.
8.In the considered view of this Court, both the Courts below on
appreciation of the oral and documentary evidence, came to a categoric
conclusion that the defendants have retained 752 Sq.ft of undivided share in
the suit property. However, while putting up the construction, the
defendants had deviated from the original plan and put up the construction
and the only defence taken by the defendants was that they had already
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applied for regularization and it is pending. The lower Appellate Court while
dealing with the stand taken by the defendants, gave a finding that the
defendants have not proved the regularization of the deviation even after six
years and no documents were filed to show that even an application has
been made before the CMDA for regularization. Hence, the lower Appellate
Court confined the relief of permanent injunction by restraining the
defendants from alienating or encumbering the suit property till they get
proper regularization from CMDA. This finding rendered by the lower
Appellate Court is supported by reasons and this Court does not find any
perversity in those findings. In any event, no substantial question of law is
involved in the Second Appeal.
9.In the result, the Second Appeal is dismissed. Considering the facts
and circumstances of the case, there will be no order as to costs.
08.04.2022
Index :Yes/No
Internet :Yes/No
ssr
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S.A.No.212 of 2016
N.ANAND VENKATESH.,J
ssr
To
1.The Subordinate Judge, Poonamallee.
2.The Principal District Munsif, Poonamallee.
S.A.No.212 of 2016
08.04.2022
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