Madras High Court
A.Anbalagan vs S.Sriram on 31 October, 2025
S.A.No.462 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 19.08.2025
Pronounced on 31.10.2025
Coram:
The Honourable Mrs.Justice K.GOVINDARAJAN THILAKAVADI
Second Appeal No.462 of 2019
and C.M.P.No.7529 of 2019
A.Anbalagan .. Appellant
versus
S.Sriram .. Respondent
Prayer: Second Appeal is filed under Section 100 CPC, praying to set aside
the judgment and decree dated 21.06.2018 made in A.S.No.164/2017 on the
file of learned XVII Additional Judge, City Civil Court at Chennai
modifying the judgment and decree dated 05.01.2017 made in O.S.No.455
of 2014 on the file of Principal XV Assistant Judge, City Civil Court at
Chennai.
For Appellant : Mr.P.M.Bakthavatsalam
For Respondent : Ms.R.Bamini
1
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S.A.No.462 of 2019
JUDGMENT
The above second appeal arise out of the judgment and decree dated
21.06.2018 made in A.S.No.164/2017 on the file of learned XVII
Additional Judge, City Civil Court, Chennai, modifying the judgment and
decree dated 05.01.2017 made in O.S.No.455/2014 on the file of XV
Assistant Judge, City Civil Court, Chennai.
2. The unsuccessful plaintiff is the appellant in this second appeal.
3. Facts of the case:
3.1.According to the plaintiff, the entire 'A' schedule property belongs
to one Indiramani and five others measuring 1925 sq. ft. On 11.09.2000 the
plaintiff has purchased the front portion (plot No.1) of the 'A' schedule
property admeasuring 503 sq. ft., along with undivided 1/3 common passage
measuring 263 sq. ft. On the same day one Chellapathy purchased the
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middle portion (Plot No.2) of 'A' schedule property admeasuring 558 sq/.ft.,
along with undivided 1/3 common passage. On the same day, the
defendant also purchased the corner portion (plot No.3) of 'A' schedule
property measuring 561 sq. ft. along with undivided 1/3 common passage .
3.2. On 28.06.2001 by way of a registered sale deed the plaintiff
purchased the portion belonging to Chellapathy. The defendant requested
the plaintiff to rent out a portion in 'B' schedule property, as it would be
convenient for him to put up construction in the 'B' schedule property.
Hence, the plaintiff rented out a portion in the 'B' schedule property to the
defendant. Thereafter, the defendant demolished the 'C' schedule property
and started to construct without following the CMDA Rules and
Regulations. He constructed a stair case in the undivided common
passage. At that time, the plaintiff and his family were residing out of the
suit property.
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3.3 As per the sale deeds a common passage measuring 263 sq. ft.,
was in existence from the front portion of the plaintiff till the end of the
defendant's portion and therefore, the plaintiff is entitled to 2/3 share and
the defendant is entitled to 1/3 share and therefore, requested the defendant
to demolish the stair case constructed by him in the undivided common
passage. The defendant failed to consider the request made by the plaintiff.
Hence, the suit.
4.On the other hand, the claim of the plaintiff was resisted by the
defendant stating that the plaintiff had received Rs.42,000/- from the
defendant and thereby relinquished his undivided shares in the common
passage by means of an unregistered document dated 04.03.2007. The
plaintiff is deliberately leaving the drainage water into the defendant's
premises and common pathway. Hence, prayed for dismissal of the suit.
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5.The trial Court decreed the suit by directing the defendant to pay the
plaintiff a sum of Rs.30,000/- with interest at the rate of 12% per annum
from the date of plaint till the date of realization and dismissed the suit with
regard to the relief of mandatory injunction and permanent injunction.
Aggrieved by this, the plaintiff preferred the appeal suit in A.S.No.164 of
2017 before the First Appellate Court. The first Appellate Court modified
the decreed passed by the trial Court directing the defendant to pay a sum of
Rs.50,000/- with interest at the rate of 12% per annum from the date of
plaint till the date of realization. As far as the mandatory injunction and
permanent injunction are concerned the First Appellate Court confirmed the
judgement and decree passed by the trial Court.
6.Challenging the same, the plaintiff has preferred the present second
appeal.
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7.The learned counsel appearing for the appellant/plaintiff would
submit that though the Courts below has rightly held the existence of
common passage on the eastern side of the properties of the plaintiff and the
defendant and that no one is entitled to put up constructions in the common
passage obstructing its utility by other co-owners erroneously held that the
plaintiff will not be benefited in any way even after the removal of the
constructions and that the plaintiff can be compensated by money instead of
removal of stair case put up by the defendant. The learned counsel would
submit that, unless the relief of damage is claimed by the plaintiff, such a
relief cannot be granted by the Courts below. The learned counsel would
further submit that the trial Court has relied upon the judgment reported in
1997 2 MLJ 449 is not applicable to the facts of the case on hand. Hence,
prayed for setting aside the judgment and decree passed by the Courts
below.
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8.On the other hand, the learned counsel appearing for the
respondent/defendant would submit that the Courts below have arrived at a
fair decision by observing that the stair case constructed by the defendant is
not in the common passage and the same will not be a hindrance to the
plaintiff. He would further submit that the stair case cannot be removed and
if the same is removed the defendant will not be able to enjoy his property
to his fullest utility. Hence, submits that there is no perversity or infirmity in
the judgments passed by the Courts below which calls for interference by
this Court.
9.Heard on both sides and records perused.
10.It is not in dispute that in the sale deeds marked as Ex.A2 to A5,
the eastern boundary is shown as common passage and it is specifically
mentioned that all the three purchasers are entitled to 1/3 undivided share in
the common passage. It is also not in dispute that the plaintiff thereafter
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purchased the middle portion of the 'A' schedule property from one
Chellapathy. Hence, the plaintiff is entitled to 2/3 share in the common
passage and the defendant is entitled to 1/3 share in the common passage.
The Advocate Commissioner's report and plan marked as Ex.C1 and C2
reveals that the stair case has been constructed by the defendant in the
common passage. The trial Court has observed that the plaintiff is not
using the disputed portion and therefore held that he can be compensated
by way of money. The trial Court as well as the First Appellate Court,
applying the ''doctrine of acquiescence'' held that the plaintiff has not
chosen to approach the Court of law immediately when the defendant
started construction in the common passage and therefore, he his not
entitled for the relief of mandatory injunction and permanent injunction.
However, the Courts below directed the defendant to compensate the
plaintiff by money by applying the principles laid down in a decision
reported in 1997 2 MLJ 449 where this Court has held that the Court is
competent to grant a general or other relief it may think just and necessary
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though the same has not been sought for.
11.No doubt, the co-owners are not entitled to put up constructions in
the common passage so as to obstruct its utility by other co-owners.
According to the defendant, the alleged stair case was put up in the year
2006 itself and the same was not objected by the plaintiff, since he had
received the amount from the defendant for putting up construction.
Though, there is no pleadings about the laches and acquiescences in the
written statement, the Courts below having found that there was no
necessity for the plaintiff to enter into the common passage since the door
of the plaintiff is situate on the northern side facing towards the street, and
the stair case is situate only on the edge of common passage i.e., on the
eastern side of the defendant's house, held that the plaintiff can be
compensated by money instead of removal of stair case put up by the
defendant. In most cases, a Court cannot grant a relief that has not been
explicitly sought, as its primary roll is to adjudicate the issues presented by
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the parties. The relief must be founded on the pleadings and prayers made
by the plaintiff. The principle is that, a Court is bound by the pleadings,
which is fundamental ensuring fairness and preventing a miscarriage of
justice. By granting an unprayed relief, it would deny the opposing party
the opportunity to resist or defend against the specific claim. However, there
are recognized exceptions where Courts can ''mould the relief'' to do
complete justice, especially in constitutional or complex civil matters.
Despite the general rule, Courts, possess inherent powers to adapt or
''mould'' the relief sought to meet the ends of justice. This is not a matter of
right but a discretionary power of the Court, typically exercised in specific
circumstances. By granting the moulded relief, complete justice must be
done. In the present case, the Courts below has rightly applied the principles
laid down in the case reported in 1997 2 MLJ 449, and moulded the relief
considering the facts and circumstances of the case. No perversity or
infirmity found in the findings of the Court below which warrants any
interference by this Court. Therefore, I do not see any question of law much
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less a substantial question of law in order to enable me to entertain this
appeal.
12.In the result,
(i) the second appeal is dismissed. No costs. consequently, connected
miscellaneous petition is closed.
(ii) The judgement and decree dated 21.06.2018 made in
A.S.No.164/2017 on the file of learned XVII Additional Judge, City Civil
Court, Chennai, is upheld.
31.10.2025
vsn/bga
Index: Yes/No
Speaking order / Non-speaking order
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To
1.The XVII Additional Judge, City Civil Court at Chennai
2. The Principal XV Assistant Judge, City Civil Court, Chennai
3.The Section Officer, VR Section, High Court, Madras.
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K.GOVINDARAJAN THILAKAVADI,J.
vsn
Pre- delivery judgment made in
31.10.2025
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