Madras High Court
J.Syed Maohammed vs M/S.Crescent Housing (P) Ltd on 19 June, 2025
Author: G.Jayachandran
Bench: G.Jayachandran
A.S.No.102 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.06.2025
CORAM:
THE HONOURABLE Dr. JUSTICE G.JAYACHANDRAN
A.S.No.102 of 2022
1.J.Syed Maohammed
2.J.Shahul Hammam
3.Miakkan
4.J.Mohideen .. Appellant/Defendants 3 to 6
Vs.
1.M/s.Crescent Housing (P) Ltd.,
Rep.by its Director K.Sivaraman,
89, Santhome High Road,
R.A.Puram, Chennai-28.
2.Sarath Kakumanu
M.Jamaludeen (died)
3.Pakir Meeral
4.Pichammal Begam
5.Mohammed Begam
6.Jamaludeen
7.Alija
8.P.Ammenal Beevi
9.J.Mohammed Riyaz .. Respondents/Defendants 7,9 to 13 & 22
[Cause title accepted vide Court order dated 14.02.2022 made
in C.M.P.No.521 of 2022 in A.S.SR.No.117612 of 2021 (CVKJ)]
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A.S.No.102 of 2022
PRAYER: Appeal Suit is filed under Section 96 read with Order XLI of
C.P.C, to set aside the judgment and decree dated 29.09.2019 made in
O.S.No.12594 of 2010 by the learned XVIII Additional City Civil Court,
Chennai by allowing the first appeal.
For Appellants : Mr.E.Prabu
For R1 & R2 : Mr.P.R.Raman, Senior Counsel
for M/s.Abitha Banu
For R3 to R9 : Steps not taken
JUDGMENT
The suit for injunction was filed by the plaintiffs to perpetuate the
agreement for development. The suit property with the defendants.
2. The specific apprehension expressed by the plaintiffs for
seeking an injunction against the defendants is encapsulated in paragraph
13 of the plaint, which speaks about the cause of action. For the sake of
clarity regarding privity, the relevant portion of the plaint is extracted
below:-
“13.The cause of action for the suit
arose with the jurisdiction of this Hon'ble
Court where the property is situated and where
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the transaction took place on 10.08.1987 when
the Memorandum of Agreements entered into
between 1st defendant and his family members
and M/s.Pioneer Building Syndicate Pvt.Ltd.,
on 16.10.1987 when the General Power of
Attorney deeds executed by 2nd defendant and
Asia Meeral in favour of 1st defendant, on
27.04.1992 when the General Power of
Attorney deeds executed by Syed Abbas,
Shamsudeen, Doult Koyammal, Kaja Mohideen
and Peer Mohamed in favour of the 2nd plaintiff
and T.S.Shanthi, on 09.07.1992 when the
General Power of Attorney executed by Sayem
Anbu Bivi, Mumaj, Raja Peer Mohamed and
Syed Abul Rahman in favour of the 2nd plaintiff
and T.S.Shanthi, between 15.12.1994 and
10.05.1995 when the necessary sale deeds of
undivided shares of land is executed in favour
of the plaintiffs on when the defendants
attempted to trespass into the suit property and
subsequently.”
3. The suit was contested by the defendants through their
written statement, contending that the plaintiffs are only the power of
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attorney holders of the defendants. As such they do not have any
independent right to initiate proceedings against their principal.
Moreover, not all the owners of the property have been arrayed as
defendants and therefore, the suit suffers from non-joinder of necessary
parties. The agreement entered into between the owners and the
promoters has become otiose due to lapse of time and breach of its terms.
4. Admittedly, the plaintiffs and the defendants are co-owners
of the suit property. Therefore, an injunction restraining the co-owners
from exercising their rights over the property cannot be granted. Further,
the defendants have made several allegations regarding the impropriety
of the contract, breach in payment of sale consideration and the inherent
difficulty in the agreement itself, particularly due to the non-involvement
of all the sharers in the suit property. Hence, the suit has been contested.
5. Based on the pleadings, the trial Court has framed the issues
1 to 3, which are as below:-
“(i) Whether the plaintiffs are entitled to
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the relief of permanent injunction as prayed
for?
(ii) Whether the plaintiffs are entitled to
the relief of mandatory injunction as prayed
for?
(iii) To what relief the parties are entitled
to?”
6. To substantiate their claim, on the side of the plaintiffs, one
Senthilnathan has mounted the witness box and 64 documents were
marked as Ex.A1 to Ex.A64. On the side of the defendants, Jamaludeen
was examined as DW.1 and no documents were marked as exhibits.
7. The trial Court, after considering the fact that the defendants
had admittedly put the plaintiffs in possession of the property and
permitted them to construct a building, observed that the construction
was halfway through. While so, there cannot be any obstruction or
interference with the peaceful continuation of the construction except
through due process of law. More so, the Court tentatively held that
possession of the entire property was with the plaintiffs and that the
defendants had no intention of interfering with such possession. Relying
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of this implied admission, the suit was decreed and the obstruction put up
by the defendants in front of the suit property was directed to be removed
within a period of three months.
8. Being aggrieved, the present appeal suit has been filed by
the defendants 3 to 6, who are wife and three sons of the Jamaludeen, the
first defendant, who died during the pending of the suit.
9. The learned counsel appearing for the appellants forcibly
argued that the entire records relied by the plaintiffs would show that
they are not agreement holders for the entire suit property. At the most,
they hold an agreement only in respect of 78.5% of undivided share
(UDS) and the remaining 21.5% is that father, Jamaludeen (the deceased
first defendant) and 11 other members of his family. While so, there
cannot be an injunction restraining the remaining co-sharers, who are not
party to the agreement with the plaintiffs.
10. Per contra, the learned Senior Counsel appearing for the
defendants submitted that during the pendency of the suit and subsequent
to its disposal, all 11 other members of Jamaludeen's family along with a
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few of the legal heirs of Jamaludeen (after his death) have conveyed their
respective sharers in the property to the plaintiffs, except the 4th appellant
who holds about 4000 Sq.ft/2,00,000 Sq.ft UDS in the suit property.
11. The claim is denied by the learned counsel for the
appellants, who contends that the UDS held by the 4th appellant is not
just 4,000 sq.ft, but much more and that the conveyance relied upon by
the plaintiffs does not cover the full 21.5% UDS held by all the co-
shares. He further submits that not all the co-sharers, except the 4th
appellant have conveyed their rights in favour of the plaintiffs and thus,
the plaintiffs cannot claim exclusive possession or seek injunction
against the 4th appellant.
12. Be that as it may, the short point involved in this appeal for
determination is whether the injunction granted in favour of the plaintiffs
is contrary to equity and whether the plaintiffs have the right to remain in
possession of the suit property without any disturbance. The entire
dispute revolves around whether the plaintiffs, having been put in
possession by the owners of the property, are entitled to continue in
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possession of the property without complying the terms of agreement and
whether the agreement relied by the plaintiffs covers the entire suit
property.
13. On this issue, the trial Court, after perusing Ex.A24 to
Ex.A58, which include sale deeds executed in favour of M/s.Crescent
Housing private limited along with other connected documents such as
the power of attorney and joint development agreement executed by the
land owners in favour of the nominee of M/s.Pioneer Building Syndicate
Private Limited on 10.08.1987, concluded that the land owners had
consented to the development of their property and had agreed to receive
their respective shares in a specified manner.
14. Pursuant to the agreement, the plaintiffs had taken
possession of the property and proceeded to construct eight complex, out
of which five complex have been completed and three are under
construction. In such circumstances, there cannot be any interference
with the plaintiffs peaceful possession and enjoyment of the property by
the defendants under the guise of non-payment of consideration or
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breach of contract. Any such grievance would only give rise to a separate
cause of action, for which the defendants must seek remedy in the
manner known to law. Without following due process of law, possession
of the property cannot be disturbed. The findings of the trial Court are in
accordance with established legal principles and precedent. Hence, this
Court is not inclined to interfere in the order passed by the trial Court.
15. The learned counsel appearing for the appellants submits
that due to violations of the building permit, the entire structure on the
suit premises is now subject to demolition proceedings and that the suit
property currently stands vacant.
16. In response to the above submission, the learned counsel for
the defendants contended that the removal of the superstructure, which
occurred subsequent to filing of the suit, does not alter the status or rights
of the plaintiffs. More so, when the plaintiffs have already initiated a suit
for specific performance, which is presently pending before the High
Court.
17. This Court is not inclined to venture beyond the facts as they
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existed on the date of the suit. If the defendants have any unsettled
claims for amounts allegedly due to them, they are at liberty to work out
such claims in the manner known to law. However, disturbing the
peaceful possession of the plaintiffs, who have been lawfully put in
possession without following due process of law, cannot be entertained.
18. Hence, this Appeal Suit stands dismissed. As a result, the
judgment and decree passed by the trial Court are confirmed. There shall
no order as to costs.
19.06.2025
Index: Yes/No
Speaking/Non Speaking order
Internet: Yes
Neutral Citation: Yes/No
rpl
To
1.The VII Additional City Civil Court, Chennai
2.The Section Officer, High Court of Madras, Chennai.
DR.G.JAYACHANDRAN,J.
rpl
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19.06.2025
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