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Showing contexts for: common plot in B.Sivaraman vs S.Ramalingam on 6 March, 2007Matching Fragments
5. According to the plaintiff, the agreement was entered on 13.05.1978 and thereafter the plaintiff was put in possession on 01.10.1979. It was also his case that subsequently, by mutual agreement between the plaintiff and his vendor C.L.Rajasekaran, the width of the pathway was to be treated as 16 ft. Since the sale was not completed within the stipulated time, the plaintiff has filed the suit in O.S.No.1632 of 1980 in the City Civil Court for specific performance and the suit was decreed on 13.04.1983. According to the plaintiff the decree also provides for 16 ft. passage to the plaintiff as his exclusive passage. After the plaintiffs vendor C.L.Rajasekaran filed an appeal in this Court in A.S.No.613 of 1983, there was a compromise entered and ultimately the plaintiffs vendor has executed a sale deed in favour of the plaintiff on 31.05.1988, which was marked as Ex.A.18. It is the further case of the plaintiff that under the sale deed executed by the common owner C.L.Rajasekaran in favour of the first and second defendants under the sale deeds dated 05.12.1973 and 01.04.1976 no right of passage was given to the defendants in respect of the suit passage. The plaintiffs also state that the common owner has also sold the remaining extent in plot No.7A of the Eastern side to one Mrs.Barathi Reddy. Even though the suit passage exclusively belongs to the plaintiff, the first defendant has opened an entrance illegally to reach his plot and both the defendants have started using the said passage, which resulted in the plaintiff filing the above suits for injunction.
7. On the other hand, the Appellate Court has reversed the judgement of the Trial Court on the basis that the defendants were husband and wife and both the plots were treated as a common and contiguous properties and therefore, there was no question of independent right to the second defendant to have a passage over the exclusive property purchased by the plaintiff under Ex.A.18. Therefore, the question to be decided in these cases is as to whether the defendants, especially the second defendant has a right of common passage over the portion stated as passage belonging to the plaintiff under Ex.A.18 sale deed, dated 31.05.1988.
13. On the other hand Mr.R.Subramaniam, learned counsel for the respondent would submit that the plea of non jointer of the wife of the plaintiff is taken for the first time in the second appeal, since according to him that plea is not maintainable for the simple reason that a co-owner can always maintain a suit against the trespasser, since according to the learned counsel, the defendants are attempting to make claim on the passage exclusively belonging to the plaintiff and therefore the defendants can only be treated as trespassers. He would also submit that even under the Ex.B.1 sale deed dated 05.12.1973 executed by the common vendor in favour of the first defendant, the Eastern and Southern boundary of the said property is only stated as a part of plot No.7A and no pathway has ever been shown. Likewise, he would also submit that even in respect of the Ex.B.3 sale deed dated 01.04.1976 under which the common vendor has executed a sale in respect of the second defendant, the Eastern and Southern boundary are stated as part of plot No.7A apart from specifically stating that the Northern boundary of the said property comprised in plot No.7A/2 is contiguous to it on the South and therefore, the intention was that both the plots given to first and second defendants were to be used as contiguous and inasmuch as the first defendant has got a right of access on the Mowbary's Road first cross street, Sitharanjan Road, the claim of the second defendant is only infructuous, since the second defendant has never been in use of the said passage.