Madras High Court
M/S.Ramaniyam Real Estates Pvt.Ltd vs P.Girijaiyer on 18 March, 2019
Author: P.T.Asha
Bench: P.T.Asha
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.03.2019
CORAM:
THE HONOURABLE Ms. JUSTICE P.T.ASHA
C.R.P.No.193 of 2019
M/s.Ramaniyam Real Estates Pvt.Ltd.,
17/35, Second Main Road,
Gandhi Nagar, Adyar,
Chennai 600 020. .. Petitioner
Vs.
1. P.GirijaIyer
2.C.M.Padmanaban
3.K.Vijayabarathi
4.SudhaChandrasekaran
5.J.Jayalakshmi
6.E.S.Chandrasekaran
7.Saroja Chandrasekaran
8.Sabita Shankar
9.Aswin Ram Mohan
10.Bindu Sundaram Shankar
11. The Commissioner,
Corporation of Chennai
Rippon Buildings,
P.H.Road, Chennai 600 003.
12. The Chairman Cum Managing Director,
http://www.judis.nic.in
CMDA, Thalamuthu Natrajan Building,
2
Egmore, Chennai 600 008.
13. The Tahsildar,
Velacherry Taluk Office,
No.113, VV Koil Street,
Institute of Road Transport Centre Complex,
Taramani 100 feet, Road,
Velacherry, Chennai 600 013.
14. The Chairman,
Tamil Nadu Housing Board,
Nandanam, Chennai 600 035.
15. The Secretary,
Bay View Flat Owners Association,
121/5, 33rd Cross Street, Besant Nagar,
Chennai 600 090.
16. Registrar of Societies,
No.100, Santhome High Road,
Chennai 600 028. .. Respondents
PRAYER: This Civil Revision Petition is filed under Article 227 of the
Constitution of India to set aside the order passed in I.A.No.15247 of
2017 in O.S.No.3738 of 2016 on the file of the VII Assistant Judge City
Civil Court on 03.04.2018 by allowing the Civil Revision Petition and reject
the plaint in O.S.No.3738 of 2016 on the file of the VII Assistant Judge
City Civil Court at Chennai.
For Petitioner : Mr.S.Sundaresan
For Respondents : Mr.G.Santhosh Kumar
for R15.
Not ready for notice-R1 to R14 & R16.
ORDER
The above Civil Revision Petition is filed by the 9th defendant/Ramaniyam Real Estates Private Limited in the suit, challenging http://www.judis.nic.in 3 the order of dismissal under the provision of Order VII Rule 11 of C.P.C. by the VII Assistant City Civil Court Judge, Chennai. It is seen that the private notice sent to R1 to R3 and R11 to R16 have been served on 28.02.2019 and the private notice taken to R4 to R10 is returned unclaimed. Therefore, all the respondents have been served and only the 15th respondent has entered appearance through counsel.
2. The brief facts which are necessary for disposing of the revision petition are as follows:
(a) The respondents 1 and 2 herein are the plaintiffs 1 and 2 in the suit and they have filed the suit in O.S.No.3738 of 2016 on the file of the VII Assistant City Civil Court, Chennai, for the reasons below:
a) declaring that the joint patta in C.A.No.09 of 2016 dated 06.01.2016 issued by the 12 th defendant Tahsildar in favour of the defendants 1 to 8 is null and void.
b) declaring that Resolution dated 28.02.2016 passed by the 14th defendant Bay View Flat Owners Association in favour of the defendants 1 to 8 for demolition and reconstruction of Block 119 on the basis of illegal patta granted by 12 th defendant Tahsildar is null and void.
c) granting permanent injunction restraining the defendants 1 to 8 from demolishing the building consisting of six flats at Door Nos.119/1, 119/2, 119/3, 119/4, 119/5 & 119/6, http://www.judis.nic.in Block No.119 and from putting up new construction encroaching 4 into the common areas belonging to all the flat owners of the complex known as Bay View Flats.
d) granting permanent injunction restraining the 9th defendant from entering upon the property and carrying out any demolition or reconstruction activities in the common areas belonging to 102 flat owners of Bay View Flats.
e) granting permanent injunction restraining the 10th defendant from according approval of any planning permission for demolition and reconstruction of building adjacent to the site of the Block No.119, Bay View Flats, 33rd Cross Street, Besant Nagar, Chennai-600 090.
(b) It is the case of the plaintiffs that the 1 st plaintiff is the owner of Flat No.117/1 and the second plaintiff is the owner of the Flat No.123/1. The defendants 1 to 8 are the owners of their respective flats in block No. 119.
3. The defendants 1 to 8 intend to demolish the existing superstructure of Block 119 consisting of Ground, First and Second Floor and put up a high rise building with one more additional floor, by entering into a Joint Development agreement with 9th defendant/M/s.Ramaniam Constructions.
4. In the plaint, it is stated that the plaintiffs have purchased an undivided share in the entire extent, in which various flats are situated. http://www.judis.nic.in 5
5. The plaintiffs state that each purchaser bought at equal price, owns not only the physical part of the apartment but also the equal share of all other common infrastructural assets including the undivided common land, covered by the scheme under joint ownership. In the said complex, the share of each owner of the common land are not found in the revenue records of Resident Association nor mentioned in the sale deeds and that information has to be obtained only from the 13th defendant-Tamil Nadu Housing Board.
6. The plaintiffs further state that originally the maintenance work was carried out by the Tamil Nadu Housing Board and subsequently, the same was transferred to the 16th defendant/Bay View Flat owners Association which is now in charge of the overall maintenance of all the 102 flats and common areas. The 2nd defendant informed of their unilateral intention of going ahead with the proposal of demolition and reconstruction of block No. 119 with just the consensus of the other defendants 1 to 8 of the Block No.119. The Secretary of the Association who had originally objected to this move later in an illegal general body meeting, specially arranged had totally reversed his stand and blindly agreed for the said illegal proposal in consonance with the so called majority opinion in the meeting, arranged in a deviant way, without assigning any reasons there for.
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7. The plaintiffs further submit that the resolution passed by the 16th defendant/Association is null and void and not binding on the plaintiffs. The special general body meeting conducted on 28.02.2016 is per se illegal and ultra vires the bye-law, and the resolution passed is also against the bye-law and liable to be declared null and void.
8. It is the case of the plaintiffs that Block No.119 is the undivided common land. Obtaining patta by the defendants from the Tahsildar would not have been possible without suppressing the fact of joint-ownership of the land and without any authoritative document such as the original plan from the Tamil Nadu Housing Board apportioning the land for the said block. In fact, the TNHB informed that they had not furnished any such information for the said purpose. The Revenue Authorities cannot apportion the joint-ownership land without the consent of all owners to issue patta. But the Tahsildar of Velacherry Taluk- the 12th defendant has issued a joint patta in the name of the defendants 1 to 6 without going through the sale deeds of the defendants.
9. They would further submit that if the block is in a dilapidated condition, they are entitled to put up similar building on the site of the existing block, without encroaching the adjacent vacant land left for common amenities of all the flat owners.
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10. The plaintiffs further submit that no right has been given by the Tamil Nadu Housing Board to the defendants. Therefore, each block will take equal share of all other common infrastructural assets including the undivided common land.
11. The learned counsel for the respondent submitted that the plaintiffs are not the owners of block No.119 and for that single reason, 9th defendant has come forward with the application in I.A.No.15247 of 2017 in O.S.No.3738 of 2016, which is the subject matter of the present revision, to reject the plaint.
12. In this application, the 9th defendant would contend that a perusal of the plaint averments, it is found that no cause of action arose for filing the suit and the plaintiffs has not disclosed any cause of action for filing this suit against the defendants/plaintiffs. The association had been formed to maintain amenities in the common area in and around the block and to prevent encroachments.
13. In their counter to the said application, the plaintiffs have further submitted that the revision petitioner/9th defendant had not disclosed any reason for rejecting the plaint. After hearing both parties, the learned Judge dismissed the application on the ground that the petition filed by the revision petitioner to reject the plaint does not give http://www.judis.nic.in 8 sufficient details as contemplated under the provisions of Order VII Rule 11 of C.P.C.
14. The 9th defendant has filed this petition under Order VII Rule 11 of the Code of Civil Procedure wherein the petitioner would contend that the plaint should be rejected on the following ground:
(a) the suit does not disclose a cause of action.
(b) the relief claimed is undervalued, and the plaintiffs' despite being informed about the same, has not taken steps to correct the valuation.
15. This Court has to consider as to whether the plaint falls within the circumstances mentioned above. A reading of the plaint would indicate that the plaintiffs are claiming a right on the basis that they are the joint owners of the entire block. The sale deed clearly denotes that each of the purchasers are share owners of that undivided piece of land over which the building is constructed. Therefore, the first plaintiff being the owner of the flat in Block 117 can claim ownership to Block No.117. The second plaintiff who has in Block No.123 can claim a right only to the land over which the block No.123 was situated. The suit is now filed with reference to block No.119 which even according to the plaintiff belongs to the http://www.judis.nic.in defendants 1 to 8. Therefore, the plaintiff does not have any cause of 9 action whatsoever for seeking the relief as claimed in the suit property. That apart, even the property that has been given to the 9th defendant is only to that extent, which defendants 1 to 8 have purchased and therefore it can be safely concluded that construction will be put up only over the land over which block No.119 is situated.
16. The plaintiff, who is not an owner of the schedule property, cannot seek an injunction against the owner of the property. A mere reading of the plaint and the documents filed would show that there is no cause of action for the plaintiffs to file the instant suit and therefore the order of the VII Assistant City Civil Judge, Chennai in dismissing I.A.No.15247 of 2017 in O.S.No.3738 of 2019 is errorneous and the suit is liable to be rejected. Accordingly the suit in O.S.No.3738 of 2016 on the file of the II Assistant Judge City Civil Court , Chennai is rejected.
17. In the result, the Civil Revision Petition is allowed. No costs.
18.03.2019 Index : Yes/No Internet : Yes/No Speaking Order/Non-speaking Order ssb/kmm http://www.judis.nic.in 10 P.T.Asha.J., ssb/kmm C.R.P.No.193 of 2019 18.03.2019 http://www.judis.nic.in