Madras High Court

V.S. Ramadas Huf vs Ramaniyam Real Estates Limited on 7 November, 2024

Author: R. Hemalatha

Bench: R.Hemalatha

                                                                                 S.A.No.542 of 2017
                                                                   & C.M.P. Nos.13252 & 13253 of 2017


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED : 07.11.2024

                                                     CORAM

                                  THE HONOURABLE MRS. JUSTICE R.HEMALATHA
                                               S.A.No.542 of 2017
                                                       and
                                         C.M.P. Nos.13252 & 13253 of 2017

                     V.S. Ramadas HUF,
                     Represented by its Kartha
                     V.S.Ramadas,
                     Old No.27, New No.44,
                     Plot No.S-47, Flat No.1B,
                     First Floor, Chitrakoot Apartments,
                     First Avenue, Shastri Nagar, Adyar,
                     Chennai 600 020                                                  ...Appellant

                                                        Vs.

                     1. Ramaniyam Real Estates Limited,
                        Represented by its Authorised Signatory,
                        Suresh V. Nathan,
                        having its office at No.11,
                        2nd Main, Gandhi Nagar, Adyar,
                        Chennai 600 020.

                     2. Rabin Singh                                            ... Respondents




                     Page 1 of 13

https://www.mhc.tn.gov.in/judis
                                                                                       S.A.No.542 of 2017
                                                                         & C.M.P. Nos.13252 & 13253 of 2017


                     Prayer : Second Appeal filed under Section 100 CPC, 1908 against the
                     decree and judgment dated 24.11.2016 passed in A.S. No.12 of 2016,
                     on the file of the XIX Additional Court, City Civil Court, Chennai,
                     upholding the decree and judgment dated 08.01.2015 passed in
                     O.S.No.2088 of 2013, on the file of the IV Assistant Judge, City Civil
                     Court, Chennai.

                                  For Appellant            : Ms.Vasudha Thiagarajan
                                  For R1                   : Mr.S. Sundaresan
                                  For R2                   : No appearance


                                                       JUDGMENT

The unsuccessful plaintiff before both the Courts below has

filed the present second appeal.

2. For the sake of convenience, the parties are referred to as per

their ranking in the trial court and at appropriate places, their rank in the

present second appeal would also be indicated.

3.The case of the plaintiff in a nutshell is as follows :

3.1. The plaintiff purchased a flat in Chitrakoot Apartments,

Adyar, Chennai, from the first defendant and he was allotted car park

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& C.M.P. Nos.13252 & 13253 of 2017

No. 9. Since it was not a fully covered car park, he requested the first

defendant to allot him a covered car park vide his letter dated 17.10.2000

(Ex.A4). Accordingly the first defendant allotted car park No.1 as is

shown in Ex.A5 sketch. However, the second defendant, who is the

owner of one of the flats, is claiming right over the said car park and also

preventing the plaintiff from parking his car. Therefore, the plaintiff filed

the suit in O.S. No.2088 of 2013 before the IV Assistant Judge, City Civil

Court, Chennai, for a permanent injunction restraining the defendants 1

and 2 from interfering with his peaceful possession and enjoyment of car

park No. 1.

4. The first defendant, the developer of the flat, remained

absent before the trial court and was set ex parte. The second defendant

resisted the suit by way of filing a written statement. According to the

second defendant the car park No.1 was allotted to him and that he has

been in possession and enjoyment of the same.

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& C.M.P. Nos.13252 & 13253 of 2017

5. On the basis of the above pleadings, the trial Court framed

the following issues :

i. "Whether the plaintiff is entitled for a permanent injunction as

prayed for?

ii. Whether there is cause of action for filing of the suit?

iii. To what other relief the plaintiff is entitled?"

6. In the trial Court, the plaintiff examined himself and one

another witness and marked Ex.A1 to Ex.A5. The second defendant

examined himself and marked Ex.B1 and Ex.B2

7. After full contest, the learned IV Assistant Judge, City Civil

Court, Chennai, dismissed the suit filed by the plaintiff, vide his decree

and judgment dated 08.01.2015, on the following grounds:-

i. In the construction Agreement and in the Sale Deed (Ex.A1 and

Ex.A2), there is no mention about the allotment of car park No.1 to

the plaintiff.

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& C.M.P. Nos.13252 & 13253 of 2017

ii. The plaintiff mainly relies on Ex.A5 sketch to show that the first

defendant allotted covered car park No.1 to him. However, a

perusal of Ex.A5 sketch shows that there is a material alteration

and therefore, the same cannot be relied upon. The second

defendant and his wife were allotted car park 1 to 3 as per the

construction agreements dated 23.07.1998 (Ex.B1 and Ex.B2).

The plaintiff did not question the genuineness of these two

documents.

iii. Since the plaintiff has not proved that he was allotted car park

No.1, the suit filed by him deserves to be dismissed.

8.Aggrieved over the decree and judgment passed by the trial

court, the plaintiff filed an appeal in A.S. No.12 of 2016, before the XIX

Additional Court, City Civil Court, Chennai. The learned XIX Additional

Judge, after analysing the oral and documentary evidence adduced on

both sides, upheld the findings recorded by the trial court vide her decree

and judgment dated 24.11.2016, as against which the present second

appeal is filed.

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& C.M.P. Nos.13252 & 13253 of 2017

9. The second appeal was admitted by my learned predecessor

on the following substantial questions of law:

"(a) Whether the Courts below are right in construing Ex.A5 in and by which the appellant was allotted a covered Car Park on payment of consideration?

(b) Whether the conclusion reached by the trial Court, as confirmed by the Appellate Court, is legally valid despite the fact that no documentary evidence has been produced by the 2nd respondent to substantiate the same?

(c) Whether the conclusion reached by the trial Court as confirmed by the Appellate Court suffers from perversity and non-consideration of the relevant documents, which vitiates the judgment of the decree rendered by the Courts below?

(d) Are the Courts below right in regativing the plea of the Appellant despite overwhelming evidence to substantiate the acquisition of the covered Car Park pursuant to a Sale Deed under Ex.A2 backed up by handing over and taking over Agreement dated 28.01.1999 under Ex.A3 executed in favour of the appellant?

(e) The Courts below ought to have noticed that a valid covered car park has been allotted in respect of the suit

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& C.M.P. Nos.13252 & 13253 of 2017

schedule mentioned property under Ex.A3 and A5 and in such circumstances, non-production of the relevant documents and evidence to rebut the claim the 2nd respondent has failed to produce any material documents and, in such circumstances, whether the judgment and decree rendered by the Courts below are substantial in law?

(f) The Courts below ought to have noticed that the construction Agreement under Ex.A1 and the Sale Deed under Ex.A2 and handing over and taking over Agreement Ex.A3 would categorically prove and establish handing over and taking of the Car Park, and in such circumstances, whether the conclusion reached by the trial Court, as confirmed by the Appellate Court, is legally valid despite the fact that no documentary evidence has been produced by the 2nd respondent to substantiate the same?

(g) Whether the judgment and decrees rendered by the Courts below are sustainable in law in the light of Exs.A4 and A5?"

10. Heard Ms.Vasudha Thiagarajan, learned counsel for the

appellant and Mr.S. Sundaresan, learned counsel for the first respondent.

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& C.M.P. Nos.13252 & 13253 of 2017

11. The plaintiff has purchased a flat developed by the first

defendant Ramaniyam Real Estates Limited. According to the plaintiff

he was allotted one open car park and at his request he was allotted

covered car park No.1 as is seen from the sketch Ex.A5. Both the courts

below had rendered a finding, based on evidence, that there is a material

alteration in the sketch Ex.A5. A bare perusal of Ex.A5 shows that all car

parking slots mention the names of the respective owners of the flats.

However, in car park No.1, the name of the owner is struck down in blue

ink and the plaintiff claims that car park No.1 was allotted to him by the

first defendant.

11.1.The first defendant did not contest the suit and was set ex

parte. The second defendant had adduced the construction agreements

(Ex.B1 and Ex.B2) executed by the first defendant in his favour as well

as his wife. In the said construction agreements, three covered car parks

were allotted to the second defendant and his wife. The first appellate

court had in fact analysed Ex.A5 and observed thus:

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& C.M.P. Nos.13252 & 13253 of 2017

Moreover, a keen look into Ex.A5 diagram, it is seen that all car parkings slots mentions the names of the respective owners thereof. As it was stated by the plaintiff, originally car slot No.9 was allotted to the plaintiff V.S. Ramadas his name finds place in slot No.9, marked in green colour. Similarly, Flat No.2 2 and 3 which was allotted to the 2nd defendant bears his name. In all probability, this slot No.1 also should have borne the name as Robin Singh which had been clearly struck with blue ball point pen. The second defendant in support of his contention has marked Ex.B1 to Ex.B3, a thorough perusal of which shows that in the construction agreement in clause No.12.6, it is stated that "1 covered car park will be allotted". Similarly, in Ex.B2 also the construction agreement in favour of the 2nd defendant clause No.12.6 mentions "2 covered car park will be allotted". Therefore, the defendants have probabilised that slot No.1 also was allotted to them. In the circumstances, when the neighbouring slots 2 & 3 falling in one line was also allotted to the second defendant. Therefore, the appellant finding fault with the judgment of the trial judge cannot be countenanced."

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& C.M.P. Nos.13252 & 13253 of 2017

One Viswanathan, who is an employee of the first defendant and also one

of the owners of the flats was examined as P.W.2. However, he did not

support the case of the plaintiff. His evidence is extracted as under:

                                  "tiuglj;jpy;       fhh;      ghh;ff
                                                                    ; p';    vz;-1 uhkjh!%f;F
                                  xJf;fg;gl;Ls;sjhf                fhl;lg;gl;Ls;sJ/               me;j
                                  tiuglk;        vd;DilaJ              jhd;.      Mdhy;          mjpy;
                                  cs;s        FwpaPL          kl;Lk;        vdf;F        re;njfkhf
                                  cs;sJ/"
                                  ........
                                  "th/rh/M/5       tiuglj;jpy;          fhh;      ghh;ff
                                                                                       ; p';      vz;/9
                                  uhkjh!;        vd;gtUf;F             xJf;fL
                                                                            P         bra;ag;gl;lJ/
                                  mjw;F       <lhf      fhh;      ghh;ff
                                                                       ; p';      vz;/1      xJf;fL
                                                                                                  P
                                  bra;tjw;F        tha;g;g[     cs;sJ/         mt;thW        xJf;FL
                                                                                                  P
                                  bra;jhy;.      mJ      rk;ge;jkhf          xU      cWjp       fojk;
                                  eh';fs; tH';fpapUg;nghk;/"

11.2. The suit was filed by the plaintiff and he has to establish

that he has a right over car park No.1 (covered car parking) as stated by

him. When there is a material alteration in Ex.A5, it is not safe to

conclude that the plaintiff was allotted car park No.1 as claimed by him.

Both the courts below had analysed the evidence on record threadbare

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& C.M.P. Nos.13252 & 13253 of 2017

and had come to a definite conclusion that the plaintiff has not adduced

acceptable evidence to prove his right over car park No.1. The findings of

both the courts below are based on facts and evidence and therefore, this

Court cannot interfere with the same. There is no substantial question of

law involved in the present second appeal and hence the same stands

dismissed.

12. In the result,

i. the Second Appeal is dismissed. No costs. Consequently

connected miscellaneous petitions are also closed.