Madras High Court
D.Subramaniam vs T.V.Ramanan on 28 February, 2024
Author: P.T. Asha
Bench: P.T. Asha
S.A.No. 234 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 28.02.2024
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No. 234 of 2021
&
C.M.P.No. 4627 of 2021
D.Subramaniam ...Appellant
Vs.
T.V.Ramanan ...Respondent
Prayer: Second Appeal is filed under Section 100 of the Code of
Civil Procedure against the Judgment and Decree dated 04.03.2020
passed in A.S.No.221 of 2019 by the Hon'ble XV Additional Judge,
City Civil Court, Chennai partly confirming the Judgement and
Decree of the Trial Court, dated 08.01.2019 made in O.S.No.2786 of
2017 on the file of the XIV Assistant Judge, City Civil Court,
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S.A.No. 234 of 2021
Chennai.
For Appellant : Mr. E.Prabu
For Respondent : Mr. J.Srinivasan.
JUDGMENT
The defendant is before this Court challenging the concurrent Judgement and Decree passed against him. The facts leading to the filing of the above Second Appeal is set out herein below and the parties are referred to as the plaintiff and the defendant respectively.
2. The suit O.S.No.2786 of 2017 was filed by the plaintiff on the file of the XIV Assistant City Civil Court, Chennai, seeking permanent injunction restraining defendant, his men, agents or servants from putting up construction in contravention of the sale deed in the schedule mentioned property and not to interfere with the peaceful possession and enjoyment of the property by the plaintiff. 2/10 https://www.mhc.tn.gov.in/judis S.A.No. 234 of 2021
3. It is the case of the plaintiff that the defendant was the original owner of the property described in the A schedule. The plaintiff had purchased portion of the A schedule property measuring an extent of 884 sq.ft., together with common passage measuring 297 sq.ft,. The said passage is the only ingress and egress to the plaintiff's property at the time of the purchase. The defendant had a building without any windows and the plaintiff was using the common passage without any hindrance. Further, there is a bar that neither the plaintiff nor the defendant should put up any construction in the common passage.
4. The plaintiff would submit that the common passage is the only access to his property. Meanwhile, on 15.11.2016, the defendant had opened the wall in his house and tried to put up windows with sun 3/10 https://www.mhc.tn.gov.in/judis S.A.No. 234 of 2021 shades projecting into the common pathway. The plaintiff gave a police complaint and after investigation, the defendant had given a written undertaking that he would not disturb the plaintiff's possession. Once again on 18.05.2017, the defendant had dug up the ground and had erected pillars to divide the common passage and this has caused inconvenience to the plaintiff. Therefore, the plaintiff has come forward with the suit.
5. The defendant had filed a written statement inter alia contending that he had purchased the suit property from one B.Chiranjeevi on 30.08.1991, a vacant land measuring an extent of 2663 Sq.ft,. The sale consideration did not include the cost of the passage admeasuring 148.50 sq.ft., which would go to show that the passage was not conveyed to the plaintiff and it was only an extent of 884 sq.ft., that had been conveyed.
6. The defendant would submit that the plaintiff has been 4/10 https://www.mhc.tn.gov.in/judis S.A.No. 234 of 2021 disturbing the defendant as there is a loading and unloading activities by the plaintiff's men and the plaintiff's men were hanging around the property. The defendant would submit that he had obtained a building plan from the Corporation of Chennai on 30.06.1992 and had put up construction in the year 1992. The compound wall was put up in the defendant's land and not in the plaintiff's land. Therefore, the above suit is not maintainable.
7. The Trial Court had framed the issue as to Whether the plaintiff is entitled to the relief claimed for. The plaintiff had examined himself as P.W.1 and marked Ex.A.1 to Ex.A.9. Ex.B.1 to Ex.B.3 were marked on the side of the defendant and the defendant has been examined as D.W.1.
8. The learned Trial Judge on considering the evidence on record, recitals in Ex.A.1 and taking note of the evidence of the plaintiff decreed the suit as prayed for.
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9. Challenging the same, the defendant had preferred an appeal in A.S.No.221 of 2019 on the file of the XV Additional City Civil Court, Chennai. The learned Lower Appellate Judge had also confirmed the Judgement and Decree of the Trial Court. It is challenging this Judgement and Decree that the above Second Appeal has been filed.
10. When the matter had come up for admission notice was ordered and the respondent also entered appearance.
11. Heard the learned counsels and perused the records.
12. The case of the plaintiff is that he had purchased 884 Sq.ft., of land together with a common right in passage measuring 297 sq.ft,. This recital is evident from a very perusal of Ex.A.1, sale deed in favour of the plaintiff. The recitals of the sale deed would clearly 6/10 https://www.mhc.tn.gov.in/judis S.A.No. 234 of 2021 indicate that the purchaser and the vendor under the deed, namely, the plaintiff and defendant herein had an undivided half share in a common passage.
13. It also stipulates that both the purchaser and the vendor shall not put up any construction in the common passage, thereby, hindering the ingress and egress. The plaintiff as P.W.1 has admitted that there is only this 6 feet passage which is the access available to the plaintiff to reach the street.
14. Considering the above admission, the Courts below have come to the conclusion that the plaintiff is entitled to enjoy the common passage and therefore entitled to a decree for permanent injunction. I see no reason to disagree with this Judgement and Decree, which is based on evidence. The defendant has not made out any substantial question of law. Accordingly, the Second Appeal is dismissed. Consequently, the connected Civil Miscellaneous Petition 7/10 https://www.mhc.tn.gov.in/judis S.A.No. 234 of 2021 is closed. No costs.
28.02.2024
Index : Yes/No
Internet : Yes/No
kan
To
1.The XV Additional Judge,
City Civil Court,
Chennai.
2.The XIV Assistant Judge,
City Civil Court,
Chennai.
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S.A.No. 234 of 2021
P.T. ASHA, J,
kan
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S.A.No.234 of 2021
28.02.2024
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