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2006 DIGILAW 2454 (MAD)

B. Krishnan v. N. Swaminathan

2006-09-18

A.C.ARUMUGAPERUMAL ADITYAN

body2006
Judgment :- (Prayer: This Second Appeal has been filed against the decree and Judgment dated 11.03.2005 passed in A.S.No.350/2004 on the file of the Court of the III Additional Judge, City Civil Court, Chennai, confirming the Judgment and decree dated 10.08.2004 passed in O.S.No.1090/2001, on the file of the VII Assistant Judge, City Civil Court, Chennai.) Heard the learned counsel for the appellant as well as the caveator and considered their submissions. 2. The Second Appeal has been preferred against the concurrent findings of the trial Court as well as the appellate Court as to the plaintiff is not entitled to an order of permanent injunction. 3. The admitted case of the plaintiff is that he had purchased the suit property under Ex.A.1-sale deed. The learned counsel for the appellant would contend that he has got every right to enjoy the amenities like using the terrace in the first flour mentioned in Ex.A.1. It has been mentioned in Ex.A.1-sale deed that 1/3rd undivided share in Schedule 'A' property along with ground floor to an extent of about 625 sq.ft were conveyed in favour of the appellante/purchaser. It is also specifically stated in Ex.A.1-Sale deed that since the Vendor/defendant has retained the first floor and since the vendor/defendant has a proposal to modify the existing staircase or reconstruct or change the structure of the staircase to suit the first and second floor approach at the existing location and it is not open to the purchaser or anybody to object the same. 4. It is seen from the judgment of the trial Court that as per Ex.B.3 (series) the terrace is situated in the first floor, being so, if an injunction is granted then it will amount to indirectly allowing the plaintiff to enter into the house of the defendant, which will affect the privacy of the defendant. 5. The learned counsel for the respondent/caveator would contend that the substantial questions of law is under section 3(h) of the Tamil Nadu Apartments Ownership Act, 1994. But the plaintiff cannot take shelter under the said Act because the building in question is not an apartment. The learned counsel for the appellant also conceded that the said Act will not be applicable to the present suit. The learned counsel for the appellant also relied on the decisions reported in 1969 (3) SCC 611 (Sudhir Kumar and others Vs. The learned counsel for the appellant also conceded that the said Act will not be applicable to the present suit. The learned counsel for the appellant also relied on the decisions reported in 1969 (3) SCC 611 (Sudhir Kumar and others Vs. Baldev Krishna Thapar and others) and 1968 Lab. I.C. 1086 (Vol.1 C.N.246) (Hadley Vs. Droitwich Construction Cr. Ltd.). But, both the cases cited above are not applicable to the facts of the case on hand. The first cited case is in respect of Lease and Licence and the later case is under of Sale of Goods Act. Under such circumstances, I do not find any substantial question of law to admit this second appeal. 6. In the result, the second appeal is dismissed. No costs. Consequently, connected CMP is also dismissed.