The plaintiff / applicant filed a suit for declaration, claiming his right of usage over the common areas including open terrace as gifted vide the Hiba dated 14.05.2009. The prayer is also for directing the defendant to remove the two sign boards erected in front of the plaintiffs' property depicting his business name as "Image Opticals" and also restraining the defendant from interfering with the peaceful possession and enjoyment and administration of the schedule mentioned properties.
2. The applicant / plaintiff is a registered society established in 1978. It is an institution catering to 12,000 students including 2000 orphans across the country. It has also earned international reputation with its priceless contributions to Islamic education. The property situated at No.221 and 222, NSC Bose Road Basement, No.8, Francis Joseph Street, Chennai, as detailed in the schedule, was owned and possessed by one Mr.Omar Sait @ Umar Abdulla Sait, S/o. Late Hajee Abdulla Sait, which was acquired vide partition deed dated 24.09.2001.
3. The schedule property was gifted to the plaintiff by way of registered gift deed dated 14.05.2009. The plaintiff is in absolute possession and enjoyment of the property, as detailed in the schedule. It is pleaded case of the plaintiff that the plaintiff has undivided share to the extent of 5000 sq.ft., proportionately divided and allotted to super built area occupied by each shop / office / store in basement ground, first, second and third floors while retaining for co-owners, the remaining undivided share of the land to the extent of 1000 sq.ft in respect of the entire terrace area. The applicant / plaintiff has got right to use the common stair case and common area and that the plaintiff is entitled to proportionate common areas in the terrace over their floor with right of the plaintiff to use as its absolute discretion.
4. The case of the applicant / plaintiff is that the defendant has put up two boards on western side of their exclusive property in the first floor. Out of the two boards, one board extents upto 3rd floor where the board, i.e. "Image Opticals" has been fixed to which the defendant has no locus standi. It is only after the boards are removed, then the plaintiff can raise construction. It is the case of the plaintiff that the defendant has unauthorizedly removed the name board of the plaintiff on 15.04.2011, which was placed in the plaintiff's own area. It is further case of the plaintiff that the defendant is likely to interfere with the peaceful possession of the plaintiff.
5. Along with the suit, the plaintiff / applicant has moved this application under Order 39 Rules 1 & 2 of CPC, claiming injunction against interfering with the peaceful possession and enjoyment of the property, gifted to the plaintiff, including right over common area and open terrace.
6. This application is contested by the defendant / non applicant by filing counter, wherein it is admitted that the schedule property was originally owned and possessed by Mr.Omar Said @ Umar Abdullah Sait and that he acquired this property under the deed of partition. However, averments with regard to gift in favour of the plaintiff is denied for want of knowledge. It is the case of the defendant that the gift deed could not be executed to the legal entity like the applicant / plaintiff.
7. This averment deserves to be noticed to be rejected, as there is no bar to gift the property to the legal entity.
8. The stand of the defendant / non applicant is that he has no quarrel with the averment that the applicant has the right to use the common stair case and also entitled to proportionate common areas in the terrace, but denied the right of exclusive use. The defendant / non applicant has denied that two boards put up by the defendant / non applicant are on the exclusive property of the applicant / plaintiff. It is also denied the board put up by the plaintiff has been removed and there is any interference by the applicant / plaintiff. The defendant had denied the allegation of interfering with the possession of applicant / plaintiff.
9. The stand taken by the defendant / non applicant is that he is the co-owner of the premises, therefore, the suit for injunction against co-owner is not competent. The stand of the defendant is that he purchased a portion of 1st and 2nd floors under six different sale deeds and the board has been put up in the property, belonging to defendant / non applicant.
10. In support of the application, it is contended by the learned counsel for the applicant / plaintiff that prima facie case is made out for grant of injunction and that the balance of convenience is also in favour of the applicant / plaintiff. It is also the contention that in case injunction is not granted, the applicant / plaintiff shall be put to irreparable loss and injury, therefore, it is prayed that defendant be restrained from interfering with the peaceful possession of the applicant / plaintiff.
11. Learned counsel for the defendant / non applicant on the other hand vehemently contended that the prayer made in the application reads as under:
"I humbly pray that this Hon'ble Court may be pleased to grant an order of ad-interim injunction restraining the respondent / defendant, his men, agents, servants or any other members, person or persons acting through them in any manner interfering with the peaceful possession and enjoyment and administration of the schedule mentioned properties situate at No.221 & 222, N.S.C.Bose Road, and No.7, Francis Joseph Street, Chennai-600 001, including the right over common area and the open terrace of the petition in any manner pending disposal of the Original Suit and thus render justice."
The contention of the learned counsel for the defendant is that in paragraph no.6, the prayer made is that the applicant / plaintiff is entitled to use the common stair case and common area in the terrace at its absolute discretion and that except the plaintiff, nobody can use and trespass the property. The contention of the learned counsel for the defendant is, therefore that the suit for injunction against co-owner with regard to common area, is not competent.
12. It is also the contention of the learned counsel for the defendant that reading of the affidavit, in support of the application, shows that the application has been moved on prior apprehension, therefore, the application filed is not competent. The contention of the learned counsel for the defendant / non applicant, therefore, was that the plaintiff has failed to make out prima facie case. Nor balance of convenience is in favour of applicant / plaintiff. It is thus contended that the application deserves to be dismissed.
13. In support of the contention, that relief of interim injunction cannot be granted on mere hypothesis or surmises, the reliance is placed on the judgment of the Hon'ble Supreme Court, in the case of State of Punjab vs. State of Haryana and others, 2011 (6) Supreme 579.
14. On consideration, I find that the positive stand taken by the defendant / non applicant is that he does not interfere with the usage of common stair case or common area by the applicant / plaintiff. In view of the clear stand of the defendant / non applicant, the application, as framed, deserves to be dismissed. The relief of mandatory injunction cannot be granted by way of interim measure, unless exceptional case is shown.
15. In the present case, the stand of the applicant / plaintiff is that it is owner of the area gifted with the right to use common area with other co-owners. There is no averment that there is any interference with the use of area in possession of the applicant / plaintiff. The learned counsel for the defendant is right in contending that no injunction can be granted against co-owners and furthermore on mere apprehension and surmises.
VINOD K. SHARMA,J.
ar
16. Consequently, finding no merit in this application, it is ordered to be dismissed. No costs.
23.01.2012 Index: Yes Internet: Yes ar Pre-Delivery Order in O.A.No.416 of 2011 in C.S.No.321 of 2011