R.Aravamudhan vs Bhavani
2023 Latest Caselaw 13528 Mad

                                                                            S.A.No.710 of 2023

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED: 05.10.2023

                                                       CORAM

                                     THE HONOURABLE Ms. JUSTICE P.T. ASHA

                                                  S.A.No.710 of 2023
                                                         and
                                                C.M.P.No.22320 of 2023



                     1.R.Aravamudhan
                     2.A.Prema                                            ... Appellants

                                                           Vs.
                     P.Srinivasan (since deceased)
                     1.Bhavani,
                     2.S.Tharun Kumar,
                     4.P.Rani                                             ... Respondents

                     PRAYER: Second Appeal filed under section 100 of the Civil Procedure
                     Code to set aside the judgement and decree dated 08.08.2022 made in
                     A.S.No.551 of 2010 on the file of the VII Additional Judge, City Civil
                     Court, Chennai confirming the judgement and decree dated 17.08.2009 on
                     O.S.No.5588 of 2009 on the file of the VIII Assistant Judge, City Civil
                     Court, Chennai with costs.


                                     For Appellant    : Mr. S.R.Sundar




                     1/16

https://www.mhc.tn.gov.in/judis
                                                                                    S.A.No.710 of 2023

                                                         JUDGMENT

The plaintiffs are the appellants before this Court challenging the

concurrent judgment and decree passed in A.S.No.551 of 2010 by the VII

Additional Judge, City Civil Court, Chennai in and by which the learned

Judge has confirmed the judgment and passed by the VIII Assistant Judge,

City Civil Court, Chennai in O.S.No.5588 of 2009.

2. The brief facts which have culminated in filing of the above

second appeal are as follows.

(i) The plaintiffs had filed the suit for a bare injunction

restraining the defendants from trespassing into the suit property by

cutting the compound wall or by way of drilling or putting up the

columns for the pillars over the compound wall in the exclusive

passage.

(ii) The suit schedule property has been described as follows:

SCHEDULE OF PROPERTY

House and ground premises situated at Old

Door No.18/2, New No.14, Rangaiah garden street,

https://www.mhc.tn.gov.in/judis S.A.No.710 of 2023

Mylapore, Chennai-4, comprised in Old S.No.2790,

C.C.No.891. S.No.1701/34,35, Now as per patta in

R.S.No.1701/34 measuring about 794 sq.ft and in

R.S.NO.1701/61 measuring 429 sq.ft., as per patta

totally measuring about 1223 sq.ft (as per document

measuring about 1249 sq.ft) Block No.36,

C.A.No.46/90, Mylapore, Triplicant taluk, Chennai

District consisting of ground and first floor, with an

exclusive passage lying on the south eastern side of

the suit property having a width of 5' and length of

37'-9''.

This dispute relates to this exclusive passage which has been described

above.

(iii) It is the case of the plaintiffs that they are the owners of the

Old Door No.18/2, New No.14, Rangaiah garden street, Mylapore,

Chennai-4 having purchased the same from the legal heirs of one

Madhavan Nair, under two sale deeds dated 23.04.2001 and bearing

https://www.mhc.tn.gov.in/judis S.A.No.710 of 2023

Registration Nos 1091 and 1092/2001 on the file of the SRO,

Mylapore, Chennai.

(iv) The plaintiffs would contend that they have mutated the

revenue records in their names and obtained separate pattas in respect

of the two portions purchased by them. The properties are comprised in

R.S.No.1701/34 (794 sq.ft) and R.S.No.1701/61 (429 sq.ft). The

plaintiffs would submit that they are therefore in possession and

enjoyment of a total extent of 1249 sq.ft ever since the date of their

purchase without any third party interference.

(v) The suit property, according to the plaintiffs, is facing

westwards, where a street exists and there is a rear portion with a

passage on the south eastern side of the suit property measuring 5' in

width and 37' 9'' in length.

(vi) The plaintiffs would further contend that in respect of this

passage there was an agreement dated 29.10.1987 between the

https://www.mhc.tn.gov.in/judis S.A.No.710 of 2023

plaintiffs' predecessor-in-title, Madhavan Nair and the legal heirs of

one A.P.Govindasamy Naicker, the grand father of the deceased

defendant, P.Srinivasan. As per this agreement, the parties had agreed

that the first floor construction which was in existence over the passage

would be used by the defendants and in case they sell it to any third

party or make any reconstruction then they will not be entitled to put up

any construction on the first floor over the passage and the passage

including such constructed portion, would automatically become the

property of the plaintiffs' predecessor-in-title.

(vii) The plaintiffs' contention is that the defendants were putting

up construction in their portion, which is situate adjacent to the

exclusive passage and it is the contention of the plaintiffs that such

construction is being put up without obtaining planning permission as

the land measurement being 415 sq.ft did not require such permission.

The plaintiffs would submit that therefore defendants are attempting to

trespass into the property by cutting and drilling the compound wall of

their passage and also by putting up pillars over the plaintiffs passage

https://www.mhc.tn.gov.in/judis S.A.No.710 of 2023

in order to put up the construction on the first floor. This attempt was

made on 02.07.2009. When the plaintiffs attempted to solve the

dispute, the defendants and their men had threatened them with dire

consequences. The plaintiffs had immediately lodged a police

complaint and has followed it up with this suit in question.

3.(i) The deceased sole defendant had filed a written statement

inter-alia contending that the suit is bad for non-joinder of necessary

parties in as much as the plaintiffs have not chosen to implead his

brothers namely Purushothaman, Anandan and Easwaran who are also

the co-owners of the said house. The defendants would, at the outset,

submit that there is no compound wall on the northern side of the

passage leading to the plaintiffs' house where the parent wall of the

defendant's house is situate. Likewise, the passage leads to the

plaintiffs' house on the south and the parent wall of the house bearing

Door No.19. The defendant had submitted that the contention of the

plaintiffs that there exists a compound wall is absolutely false. The

defendant would submit that the suit filed for a bare injunction without

https://www.mhc.tn.gov.in/judis S.A.No.710 of 2023

seeking a declaratory relief is bad in law and has to be dismissed. That

apart, they had contended that they have never trespassed into the suit

property. The house bearing Door No.18/1 belongs to the defendant

and his brothers. It was constructed by the defendant's grandfather,

Govindasamy Naicker. The defendants would further submit that on

29.10.1987, the rear portion of the property was sold to one Madhavan

Nair together with a four feet passage on the south western side, the

width of the passage though shown as 5 feet in the sale deed, is only

four feet on site. The house had been reconstructed by the defendants

only within their boundaries.

(ii) The defendant would further submit that the front portion

measuring 415 sq.ft, which was allotted to the defendant's paternal

uncle, G.Narayanan, has been sold to the defendant under a sale deed

dated 29.10.1987. The defendant would submit that there is no cause of

action for the suit and further, they have been advised to put up the

pillars since the wall was not strong enough to hold the first floor

construction. Therefore, they had sought for the dismissal of the suit.

https://www.mhc.tn.gov.in/judis S.A.No.710 of 2023

4. The trial court had framed the following issues:

1. Whether the plaintiffs are entitled to get the

permanent injunction?

2. To what other relief the plaintiffs are entitled to

get?

5.The first plaintiff has examined himself as P.W.1 and marked

Ex.A1 to A13. The defendant had examined himself as D.W.1 and

marked Ex.B1 to B4. Ultimately, the trial court had dismissed the suit.

6.The learned trial Judge had observed that, in Ex.A5, agreement

between the plaintiffs' predecessor in title, Madhavan Nair and legal

heirs of one A.P.Govindasamy Naicker, the “B” Schedule property

therein was sold to the plaintiffs/predecessor-in-title together with the

passage measuring an extent of 5 feet in width and 37'9'' in length.

This passage exclusively belonged to the plaintiffs predecessor-in-title

and by reason of their purchase, the plaintiffs have become the absolute

owner of the suit schedule property together with this passage.

https://www.mhc.tn.gov.in/judis S.A.No.710 of 2023

7.The learned Judge has also observed that there was no

construction being put over the passage and that the defendant had no

right over the passage as well as the constructed first floor passage. The

Advocate Commissioner has also observed that only essential and

necessary repair work was being carried out and that there is no

construction being put up on the passage. He had reported that it was

only a window that was opened in the parent wall of the defendant's

property. The suit was therefore dismissed.

8.This judgment and decree was taken on appeal to the learned

VII Additional Judge, City Civil Court, Chennai in A.S.No.551 of

2010. The learned Judge, on considering the evidence dismissed the

appeal, against which, the present second appeal is filed.

9.It is the contention of Mr.S.R.Sundar, learned counsel

appearing for the plaintiffs' that the defendants' are inserting pillars,

undertaking drilling work on the parent wall and attempting to rest

pillars to reconstruct the first floor on the wall, thereby violating the

https://www.mhc.tn.gov.in/judis S.A.No.710 of 2023

terms of the agreement. He would draw the attention of the Court to

Clause 4 of the agreement dated 29.10.1987 in support of the above

contention. He would also draw the attention of the Court to the fact

that D.W.1, in his cross-examination, has admitted that he has changed

the door and window panels on account of the same being damaged by

white ants and that the plaintiffs had lodged a police complaint against

them. It is the case of the plaintiffs that by opening a window into the

passage, the defendants were violating the agreement and therefore, the

Courts below have failed to consider the above.

10.Heard the learned counsel for the appellants and perused the

materials available on record.

11.The plaintiffs have come forward with the suit for bare

injunction and the only cause of action that has been pleaded is as

follows:

“The plaintiffs state that the defendant herein

https://www.mhc.tn.gov.in/judis S.A.No.710 of 2023

is putting up some construction over the retained

portion, which is situated adjacent to my exclusive

passage and front to my house property. The

plaintiffs understand that there cannot be any

planning permission for the said construction, since

it is a small piece of land measuring about only 415

sq.ft. The defendant is attempting to trespass in to

their property by cutting and drilling the compound

wall of their passage. The defendant has attempted

to put pillar columns over my passage to built

upstairs on 02.07.2009.”

12.However, a perusal of the judgements of the Courts below

would show that the plaintiffs have themselves admitted that there is no

compound wall. The plaintiff, as P.W.1, has clearly admitted as

follows:

“fhk;gt[zl; ; Rth; fpilahJ”

https://www.mhc.tn.gov.in/judis S.A.No.710 of 2023

Therefore, the contention that the defendants are drilling into the

compound wall is incorrect. That apart, the defendants have in very

clear terms stated that they are not putting up any construction in the

passage and the plaint would also reflect the same. The advocate

Commissioner has also submitted a report on these lines. The plaintiffs

have only stated that they apprehend that the construction would be put

up. Ex.A.5-Agreement, which is the agreement under which the

passage has been allotted, would contain the following recitals:

“4.The passage leading to the property purchased by

the party of the third part and lying on the South

eastern side having a width of 5' and length of

37'-9” will be used by the party of the Third part

absolutely. The first floor construction lying on the

said passage will be used by the parties of the

second part with usage right. They would use the

same till they sell to any third party or make any re-

construction. In the event of demolition or

reconstruction of the building in the B schedule or in

https://www.mhc.tn.gov.in/judis S.A.No.710 of 2023

the event of sale of the B schedule property, the

usage right of the constructed area in the first floor

over the passage automatically lapses and the

passages including the constructed first floor portion

over the passage automatically becomes the absolute

property of the party of the third part or his

successors-in-title. The parties of the second part or

their successors-in-title will not have any right,

claim or title over the said portion in the event of the

reconstruction or sale. Even if they sell, the

purchaser, namely, the successors of the parties of

the second part will not have any right or title over

the same. Their title relates to only the property

measuring 415 sq.ft., or thereabouts and more fully

marked in Green colour and more fully marked as

'B' in the attached plan.”

https://www.mhc.tn.gov.in/judis S.A.No.710 of 2023

13.A mere reading of the above would show that in the event of

the defendants' putting up the construction in the first floor over the

passage, then such construction and the passage would become the

absolute property of the plaintiffs' predecessor-in-title. The Courts

below have rightly concluded that the plaintiffs have not made out any

cause of action for the grant of injunction, particularly when the

defendants have themselves admitted the right of the plaintiffs to the

passage and contended that they have not put up any construction in

this passage. To disprove this statement, the plaintiffs have not let in

any evidence. The plaintiffs have not made out any questions of law

much less a substantial question of law.

14. In the result, the Second Appeal is dismissed confirming the

judgment and decree of the lower appellate Court. Consequently,

C.M.P.No.22320 of 2023 is closed.

05.10.2023

Index : Yes/No Speaking order/non-speaking order ssa/srn

https://www.mhc.tn.gov.in/judis S.A.No.710 of 2023

To

1.The VII Additional Judge, City Civil Court, Chennai

2. The VIII Assistant Judge, City Civil Court, Chennai

3. The Section Officer, V.R.Section, High Court, Madras

https://www.mhc.tn.gov.in/judis S.A.No.710 of 2023

P.T.ASHA, J.,

ssa/srn

S.A.No.710 of 2023 and C.M.P.No.22320 of 2023

05.10.2023

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