K.Dhana Lakshmi vs M.C. Thennarasi
2023 Latest Caselaw 6568 Mad

                                                                                 CRP. No.812 of 2018




                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                             DATED:       20.06. 2023

                                                    CORAM:

                                   THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI

                                              CRP. No. 812 of 2018

                     1.K.Dhana Lakshmi
                     2.K.Vasantha
                     3.K.Devi
                     4.K.Pushpa Latha
                     5.K.B. Rajendran
                                                                ...Petitioners
                                                        Vs.
                     1.M.C. Thennarasi
                     2.Muthuraman
                     3.Farida Begum
                     4.Mohd. Azeezullah
                     5.Jayawadhi

                                                                 ...Respondents.

                     PRAYER : This Civil Revision Petition is filed under Section 227 of the
                     Constitution of India, to set aside the judgment and decreetal order dated
                     24.11.2017 passed in CMA No. 92 of 2015, on the file of XIXth additional
                     Judge, City civil Court, Chennai confirming the fair and decreetal order
                     dated 18.04.2015 in respect of passage portion in I.A No. 17292 of 2014 in
                     O.S No. 6407 of 2014 on the file of XVIIIthe Assistant Judge, City Civil


                     1

https://www.mhc.tn.gov.in/judis
                                                                                  CRP. No.812 of 2018

                     Court, Chennai.


                                      For Petitioners : Ms.K.Dhanalakshmi
                                      For R1          : Refused
                                      For R2 to R5    : No appearance
                                                          ORDER

Challenging the impugned judgment and decreetal order dated

24.11.2017 passed in CMA No. 92 of 2015, on the file of XIX additional

Judge, City civil Court, Chennai, the petitioners filed this petition.

2. The petitioners herein filed suit for the relief of permanent

injunction restraining the respondents herein/defendants, their agents,

nominees, servants or anybody claiming on behalf of the defendants from in

any manner disturbing the peaceful possession and enjoyment of plaintiffs in

the suit property namely, old No. 25 A, New No. 32, Dr.Ambedkar First

Street, Villivakkam, Chennai – 600 049 as decribed in the suit scheduled

property. The Suit properties are described as follows:

Entire house portion of 1350 square feet and passage portion of 264 square feet with passage wall on the northern side old survey No. 368/1, Block No. 61, T.S No. 24 PT, Konnur Village, Villivakkam, Chennai – 600

049. In corporate division new No. 95(Old division No. 63), New zone No. 8 (Old No. 4) in corporation old Ass. No. 04/6387275/00001 and new assessment No. 08/095/2638/0000.

Land extent 1350 square feet measurements:

https://www.mhc.tn.gov.in/judis CRP. No.812 of 2018

East to West at southern side: 112 feet East to west at Northern side: 110 feet North to South at Eastern side: 20 feet North to South at Western Side: 25 feet Passage extent 264 square feet measurements Passage length at southern side : 57 feet Passage width at Eastern side : three feet and nine inches Passage Width at Road side(Western) five feet and six inches

3. The contention of the plaintiff is that house portion 1350 square

feet along with passage 264 square feet was allotted to the first respondent

in partition suit O.S NO. 1287 of 1986 and the same was sold to plaintiff's

mother's vendor Ashraf Unnisssa through sale deed dated 28.01.1992 in

turn she sold the property to K.Sampurana (plaintiff's mother) through sale

deed/Ex.B2 dated 29.12.2000. As per the said sale deed common passage

measuring total extent of 264 square feet was exclusively allotted to the

plaintiff's mother, even in the partition deed executed between defendants 1

and 2 in the year of 2014 the plaintiffs' house passage was shown as one of

the boundary thereby the plaintiffs contend that suit passage 264 square feet

was enjoyed by them exclusively in which the defendants have no rights but

they admitted to put up passage wall obstructing petitioners from using the

passage but the said passage is only way to reach their house since the

defendants threatened them their enjoyment hence the plaintiffs/petitioners

https://www.mhc.tn.gov.in/judis CRP. No.812 of 2018

filed suit and also filed interim application seeking temporary injunction in

I.A No. 17292 of 2014, the said interim application was strongly objected by

the respondents/defendants stating that suit passage 264 square feet is

common passage in which neither the plaintiff's nor the defendants have

exclusive right but the plaintiff's are claiming exclusive right over the

common passage. Further they also contend that plaintiff's vendor having no

exclusive right over the common passage through sale deed thereby denied

that it is not exclusive passage to the plaintiffs and claimed that it is common

passage. Hence prayed to dismiss the interim injunction petition.

5. On hearing both sides submissions, the Trial Court allowed the

petition by granting modified injunction restraining the respondents from

interfering with the petitioners peaceful possession and enjoyment in respect

of petitioners house at 1350 square feet and interim injunction restraining

the respondents from interfering with the petitioners ingress and egress to

their house through the passage measuring 3.9 feet on the eastern side and 5

feet on the western side x 57 feet nor to south measuring 264 square feet till

the disposal of the suit.

6. Aggrieved over the modified interim injunction order the

respondents filed CMA 92 of 2015, on the file of the XIX Additional City

https://www.mhc.tn.gov.in/judis CRP. No.812 of 2018

Civil Court, Chennai, after considering the oral and documentary evidence

the lower appellate Court dismissed the said petition. Furthermore, the Court

observed that when the property was sold to the mother of the appellant's

vendor granting road to use the common passage exclusively in her favour,

but her vendor's vendor not conferred with such right but all those facts and

its validity and relevancy of those documents can be decided only after the

full Trial and impugned order was confirmed by the first appellate Court.

7. Challenging the said findings the revision petitioner filed this

petition. The appellant Rajendran appeared in person for him and on behalf

of his sisters submitted that the Court below failed to appreciate the title

deeds and other relevant documents and passed one side order i.e passage is

common to the respondents. In fact, as per the sale deed stands in the name

of his mother she purchased 1,350 square feet land along with passage

through registered document dated 27.12.2000 after that her mother

obtained sub division patta and also obtained sanctioned sewage line

connection passes through the suit passage only which itself clearly shows

that passage in their custody but all these facts was ignored by the Trial

Court as well as lower appellate Court therefore order passed by the lower

Court is liable to be set aside. Hence prayed to allow this petition.

https://www.mhc.tn.gov.in/judis CRP. No.812 of 2018

8. Per contra, the learned counsel appearing for the respondent

submitted that suit passage was 264 square feet which is common passage

and the plaintiff is having no exclusive right over the same it was rightly

appreciated by the both the Court below. The appellants replied that

originally first respondent Thennarrasi sold the property to Ashraff Uniisa

on 28.01.1992 in which the second respondent Muthuraman is one of the

witness and after her purchase she put up passage wall dividing passage

between Muthuraman and the petitioners but the Court below failed to

appreciate all these aspects.

9. On perusal of records relied by the petitioners prime facie

reveals that there was a partition deed Ex.B4 dated 21.01.2014 in which suit

passage is mentioned as one of the boundaries is described as follows:

V brhj;J tptuk;

bkhj;j brhj;J tlbrd;id gjpt[ khthl;lk; bfhd;D[h; cg gjpt[ khtl;lk;. brd;id khtl;lk;, g[uirthf;fk; bguk;g{h; tl;lk;, brd;id khefuhl;rp vy;iyf;F cl;gl;lJk;. bfhd;D[h; fpuhkk; rh;nt vz;fs;/

368. 368/1 ,y; ml';fpa giHa fjt[ vz;/ 25. g[jpa fjt[ vz;/ 34y; ml';fpaJkhd 746 rJuofs; bfhz;l kida[k; mjpy; 369/6 rJuofs; bfhz;l Xl;L tPLk;/ ehd;F gf;f vy;iyfs;

tlf;fpy; b$atjp re;jhdk; 5 mo tHpghij bjw;fpy; uhn$e;jpud; 4 rnfhjhpfs; tPlL ; kidapd;. Thpghij fpHf;fpy; tHf;F vz; 1287-86 go Kj;Juhkd;

                     nkw;fpy;      lhf;lh;. Mk;ngj;fh; bjU

                                                          rp brhj;J tptuk;

(,uz;lhtJ ghh;l;o jpU/ Kj;Juhkd; mila[k; ghfk;)

https://www.mhc.tn.gov.in/judis CRP. No.812 of 2018

nkw;go V brhj;jpy; fpHf;fpy; mike;j kidf;F ehd;F vy;iyfs;

                     tlf;fpy;           b$ae;jp re;jhdk; tHpghij kw;Wk; ,jpy; V ghh;l;o bjd;durp mila[k; brhj;J
                     bjw;fpy;           uhn$e;jpud; 4 rnfhjhpfs; tHp ghij
                     fpHf;fpy;          ,jpy; gp ghh;l;o jpU/Kj;Juhkd; 1287-86 go mile;j brhj;J
                     nkw;fpy;           Kjy; ghh;l;o bjd;durp mila[k; brhj;J kw;Wk; lhf;lh;/ mkngj;fh; bjU.

10. By relying said boundaries description the petitioners argued that

it clearly shows that there is a passage in 264 square feet which is enjoyed

by the petitioners exclusively but the Court below failed to appreciate those

aspects. Though it was prime facie established by the petitioners, the Court

below granted modified injunction as such is liable to be set aside. On bare

perusal of partition deed Ex.P4 it clearly reveals that there was partition

effected between first and second respondent herein and some property was

allotted to the share of second respondent in which one of the boundaries is

shown as ( uhn$e;jpud; 4 rnfhjhpfs; tPlL ; kid tHpfs; ghijf;F bjw;F) this

document is admitted by the second respondent in his counter submission.

If the petitioners prayed for temporary injunction, the petitioners bound to

prime facie establish that they are entitled for such relief. Considering the

recitals of the partition deed respondents 1 and 2 admits that suit passage is

belongs to the petitioners. Furthermore, the respondents 1 and 2 having

direct access to their property from Ambedkar road. But the petitioners

having only suit passage to reach their house if at all any interference made

https://www.mhc.tn.gov.in/judis CRP. No.812 of 2018

in that passage it cause great hardship to the petitoners. Furthermore the

petitioners are being unmarried persons standing before this Court argued in

person which itself shows that they are very much disturbed by the

respondents and others. Therefore this Court inclined to allow this petition

by set aside modified temporary injunction granted by the Court below in

favour of the petitioners. Hence the respondents are directed to not to cause

any interference of petitioners' enjoyment of the suit passage till disposal of

the suit. However both parties are entitled to advance evidence to prove their

claim without influence of this observation. Accordingly I.A NO. 17292 of

2014 in O.S No. 6407 of 2014 is allowed. Furthermore, suit was filed in the

year 2014 hence the Trial Court is directed to dispose the suit within a

period of six months from the date of receipt of a copy of this order.

10. In result, this Civil revision petition is allowed. No cost.

Consequentially connected miscellaneous petition is closed.

20.06.2023

pbl

https://www.mhc.tn.gov.in/judis CRP. No.812 of 2018

T.V.THAMILSELVI,J.

Pbl

CRP. No.812 of 2018

20.06.2023

https://www.mhc.tn.gov.in/judis