THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN CS.No.816 of 2013
1. R.Venkataperumal
2. Manonmani
3. M.Jayanthi, represented by her Power of Attorney Agent, D.Mani Plaintiffs Vs
1. S.Muthumani
2. N.Vaijayanthi
3. R.Kamakshi
4. Dileep Venkatakrishnan
5. S.P.Srinivasan
6. S.Sankaran
7. R. Srinivasa Raghavan
8. K.Shyamala
9. Padma Santhanam 10.S.Nalini 11.S.Rangaprasad Defendants Prayer:- This Civil Suit is filed under Order IV Rule 1 of the Original Side Rules read with Order VII Rule 1 of CPC, for the reliefs as stated therein.
For Plaintiffs : Mr.G.Jayachandran For Defendants : Set Exparte JUDGEMENT This civil suit has been filed, to pass a judgement and decree, against the Defendants:-
a) granting declaration that the Plaintiffs are absolute owners of the B, A and C Schedule properties respectively.
b) granting declaration that the Plaintiffs are joint owners of the D- Schedule property.
c) granting declaration that the common passage more fully described as E- Schedule property exclusively belongs to the Plaintiffs and the 9 to 11 Defendants.
d) granting permanent injunction, restraining the Defendants 1 to 8 and anybody acting under them from in any manner interfering with the possession and enjoyment of the A, B, C, D and E Schedule properties by the Plaintiffs.
e) for costs of the suit.
2. The case of the Plaintiffs is as follows:-
a. One K.rangachari had purchased 4 grounds and 855 sq.ft. bearing Plot No.21 in Old Block No.10, T.Nagar, comprised in S.Nos.110/2, 107/3 and 110/3 under the registered sale deed dated 24.2.1936 registered as Document No.402 of 1936 at SRO, Mylapore and constructed a house thereon in 1937. The said property was then known as Old Door No.9, New Door No.8, Sivaprakasam Street, T.Nagar, Chennai-17. K.Rangachari died, leaving behind him, his wife R.Pattammal, two sons and eight daughters as his legal heirs and R.Pattammal died on 21.05.1975. M/s.Raju Estates had agreed to purchase the said property. As per the sale deed, the property was divided into Block Nos.A, B, C, D and E. 14 feet width of passage was provided to the flat owners of Block A commencing from Sivaprakasam Street. No exclusive passages were provided for Block Nos.e and D. Passage of 12 feet width and 98 feet length was ear marked for the owners of Block Nos.C and B. A passage of 10 feet width and 31 feet length was ear marked for Block B owners.
b. The remaining land situated on the Western side of Block No.B was divided into three parts and allotted to all the three flats owners of Block No.B. Two sons, eight daughters and grand children of late K.Rangachari had sold and conveyed the undivided share of the lands to various buyers through registered sale deeds in 1979 and various buyers had entered into construction agreements with M/s.Sethu Construction Company and the said M/s.Sethu construction Company had put construction of flats as Block Nos.A, B, C, D and E. The owners of Block Nos.B and C have been enjoying the common passage measuring an extent of 950 sq.ft. as joint owners since 1/7th undivided share of land were sold and conveyed to each owner of flats in Block B and C in their favour. The owners of Block No.B have been exclusively enjoying the common area measuring 10 feet width and 31 feet situated on the western side of the common passage measuring 12 feet width and 98 feet length commencing from Sivaprakasam Street.
c. The 1st Plaintiff had purchased Flat No.B-6 in the ground floor and the 2nd Plaintiff purchased Flat No.B7 in the first floor and the 3rd Plaintiff had purchased Flat No.B8 in the second floor through three different sale deeds. Two sons, eight daughters and grand children of Late K.Raghavachari had sold and conveyed A-Schedule property to Lakshmi Raghavan, B-Schedule to Kameshwar Rao along with Flat No.B7 and Flat No.B8 property to Vaidyanathan. Subsequently, owners of Flat No.B6 and B7 have executed a deed of exchange in 1988, exchanging among themselves the divided A- Schedule and B-Schedule properties and as per the deed of exchange, the A-
Schedule property became the property of Kameshwar Rao, owner of Flat No.B7 and Schedule B property became the property of Lakshmi raghavan, owner of Flat No.B6.
d. The property of the Defendants 1 to 8 is situated at Old Door No.13, New Door No.1, Radhakrishnan Street, T.Nagar, Chennai-17. The Defendants 1 to 8 have access only from Radhakrishnan Street. The flats on the front side of the property, i.e. abutting Radhakrishnan Street was constructed by M/s.Raju Estates and no exclusive passage was left out for the remaining property on the rear side which was then kept vacant. M/s.Raju estates had put up construction in the remaining property on the rear side of the flats constructed in Old Door No.13, New Door No.1, Radhakrishnan Street, T.Ngar and the owners of the rear side flats were allowed and permitted orally by few owners of flats in Block C and B situated at Door No.10, Sivaprakasam Street, to use the common passage measuring 12 feet width and 98 feet more fully described as Schedule E property. Though the Defendants 1 to 8 are not entitled to have any legal claim over the Schedule E property, common passage, they were allowed to use the common passage only as leave and licence. However, the owners of the flats situated Old Door No.13, New Door No.1, Radhakrishnan Street, T.Nagar, Chennai-17, comprised in Town Survey NO.6281/1 have also connected their drainage, electrical cables, etc. through the common passage.
e. The Plaintiffs are in possession and enjoyment of their respective flats together with 1/7th undivided share in the common passage measuring 950 sq.ft. more fully described in the Schedule E apart from absolute possession and enjoyment of their respective 1/3rd undivided share in the exclusive common area meant for them measuring 10 feet width and 31 feet length on the western side of the Schedule E property, more fully described in Schedule D property. On and from the date of purchase, the 2nd Plaintiff seized and possessed A-Schedule property. While so, the 1st Defendant had purchased Flat No.D1, situated at Old Door No.13, New Door No.1, Radhakrishnan Street, T.Nagar, Chennai-17 under the registered sale deed dated 11.09.2013 vied Document No.2156 of 2013 from Aruna S.Udupa and Sarvajna Vasudeva Udupa. After the purchase of Flat 1st Defendant by the 1st Defendant, the 1st Defendant along with the Defendants 2 to 8 started questioning the Plaintiffs' respective absolute right in A, B and C Schedule properties, apart from illegally claiming right over the exclusive common area measuring 10 feet width and 31 feet length more fully described as D Schedule property. The Defendants started causing hindrance to the Plaintiffs' possession and enjoyment of the suit properties, apart from claiming right in the exclusive common area. In the subsequent sale deeds with some ulterior motives and for the reasons best known to them, the address of the Defendants 1 to 8 properties have been mentioned as Old Door No.8, New Door No.10, Sivaprakasam Street, T.Nagar, Chennai-17.
f. Taking advantage of wrong mentioning of door numbers and flat numbers, the Defendants 1 to 8 started claiming right in the common passage measuring 950 sq.ft. apart from attempting to trespass into the common area exclusively meant for owners of flats in B-Block and also attempting to trespass into A, B and C Schedule properties. The Defendants 1 to 8 are not entitled for any claim over the A, B, C and D Schedule properties, except from limited right as leave and licence in common passage measuring 12 feet width and 98 feet length commencing from Sivaprakasam Street. In such circumstances, this civil suit has been filed.
3. Though the Defendants were served, no written statement has been filed by the Defendants and hence, the matter was posted under the caption of 'Undefended Board'. For non filing of the Written Statement, the Defendants were set exparte and Exparte Evidence was ordered to be recorded by the order of this court, dated 08.11.2016. The 1st Plaintiff had filed the proof affidavit for his chief examination and receipt of 15 documents. In the Exparte Evidence, the 1st Plaintiff examined himself as PW.1 and marked Exs.P1 to P15 as documentary evidence.
4. In the result, considering the oral and documentary evidence, viz.
Ex.P1 to Ex.P15 adduced by PW.1, this Court is of the view that the Plaintiffs have proved the suit claim. Accordingly, this civil suit is decreed as prayed for with costs.
21.09.2017 Index:Yes/No Web:Yes/No Srcm
1. List of Witnesses Examined on the side of the Plaintiffs:-
1. P.W.1 – R.Venkataperumal
2. List of Exhibits Marked on the side of the Plaintiffs:-
3. List of Witnesses Examined on the side of the defendants:- Nil
4. List of Exhibits Marked on the side of the defendants:- Nil 21.09.2017 Srcm C.V.KARTHIKEYAN, J.
Srcm Pre-Delivery Judgement in CS.No.816 of 2013 21.09.2017