Judgment : 1. S.A.No.761/2008 arises out of the concurrent findings of Courts below granting declaration that Generator Room, Store Room, A.C. Room, M.E.S. Room referred in the approved plan as common amenities and common basement floor in "Lakshmi Apartments" as common area and granting Permanent Injunction and Mandatory Injunction. 2. S.A.No.802/2008 is preferred against the concurrent findings of Courts below dismissing the suit filed by the land owner for Permanent Injunction restraining the flat owners from interfering with the possession and enjoyment of 730 sq.ft. in basement floor in "Lakshmi Apartments". 3. Since both the appeals arise out of common Judgment involving common points for determination, both the appeals shall stand disposed of by this common Judgment. Though second appeals are of the year 2008, with the consent of the parties, at the stage of notice before admission, second appeals were taken up for final hearing. For convenience, parties are referred in their original rank as per their array in O.S.No.7077/2007. 4. Uncontroverted facts giving rise to the suit and appeals are as follows:- (i) Lakshmi Apartments at No.12, Varadharajapet Main Road, Kodambakkam, Chennai is about two grounds. The property originally belonged to the third Defendant and she got the property by Sale Deed dated 20.09.1961 from one Devaraj. The third Defendant approached the fourth Defendant M/s. Lakshmi Builders to develop the property. On 19.03.1997, an Agreement of Sale was entered into between the Defendants 3 and 4 for a consideration of Rs.20,00,000/-to be paid by the Builder. plus constructed area in the apartments. The third Defendant had executed a Power of Attorney empowering 4th Defendants wife to sell the portion of the grounds to the nominees of the builder. ii) On 11.09.1999, plaintiff entered into a Construction Agreement with the fourth defendant to construct a flat in the first floor, measuring an extent of 974 sq.ft. as per the approved plan. Apart from the plaintiff, Altaf Ahamed, Venkataraman, Suresh Hegde, Vijayan and Ganapathi [respondents in S.A.No.802/2008] are other purchasers of flats who entered into agreement with the builder. (iii) The dispute pertains to the common area in the basement floor. Case of plaintiff is that at the time of entering into construction agreement, the builder has produced the approved plan No.D8/2108/99 dated 19. 1999 issued by the Corporation of Madras. Plan provides common facilities like generator room, A/C Room, Store Room, MES Room. (iii) The dispute pertains to the common area in the basement floor. Case of plaintiff is that at the time of entering into construction agreement, the builder has produced the approved plan No.D8/2108/99 dated 19. 1999 issued by the Corporation of Madras. Plan provides common facilities like generator room, A/C Room, Store Room, MES Room. Common area and amenities shall be used by the occupants of the flats. After construction, the fourth defendant delivered the flats to the plaintiff and other flat owners. .(iv) As per the plan, six flats have to be constructed. Further case of the plaintiff is that plan provides them common facilities like generator room, A/C Room, Store Room, MES Room. As such, the plaintiff has to be given Undivided Share of 604 sq.ft. Altaf Ahmed 723.0 sq.ft., Venkataraman 602 sq.ft., Suresh Hegde 595 sq.ft., Vijayan 704 sq.ft. and Ganapathi 372 sq.ft. Plaintiff has alleged that the builder colluded with the third defendant and illegally retained undivided share of land to an extent of 412 sq.ft. Therefore, the undivided share registered by the builder was only to an extent of 3188/3600 sq.ft. .(v) It is the further case of the Plaintiff that the Builder and third defendant have converted the basement area, which is meant for common facilities into a residential flat and commercial area and the said construction is illegal and against the approved plan. The builder has no right to construct and deliver the flat “D” measuring 730 sq.ft. in the basement area. There is no such construction shown in the plan approved, as alleged by the land owner and such construction is in violation of the approved plan granted by the defendants 1 and 2. .(vi) n O.S.No.7077/2000, plaintiff has sought for:- .(i) declaration that generator room, A/C Room, Store Room, MES Room referred in the approved plan as common amenities are common area; .(ii) mandatory injunction directing the defendants 1 and 2 to demolish the unauthorized construction; (iii) permanent injunction restraining the third defendant not to alienate or encumber the superstructure constructed in the basement and also restraining them not to construct any further superstructure in the basement area in violation of the approved building plan. (vii) Resisting the suit, the third defendant land owner filed the written statement contending that for developing 3600 sq.ft., a Memorandum of Understanding was entered into on 19.03.1997 for monetary consideration plus flat to be constructed by the fourth defendant and delivered to the third defendant. As owner of the entire A Schedule Property, the third defendant has retained the undivided share of 322 sq.ft. and the builder constructed and delivered to the third defendant the flat “D” measuring 730 sq.ft. According to the third defendant, like other co-owners, she is also entitled to 322 sq.ft. in the undivided share. It is the case of the third defendant that she is entitled to right and title over the flat “D” measuring 730 sq.ft. in the basement constructed over the undivided share of land of 322 sq.ft. (viii)The builder – 4th defendant has filed the written statement contending that the plaintiff has got no right to seek for declaration that the amenities of schedule mentioned property is a common area available to him along with other co-owners, since there is no construction agreement providing the aforesaid amenities. The builder had denied allegation of having converted the common area into residential flats and commercial office. .(ix) The third defendant Land Owner, filed O.S.No.1974/2001 for permanent injunction restraining the plaintiff and other flat owners from in any way interfering with the peaceful possession and enjoyment of flat "D" situated in the basement floor. Reiterating the same averments as pleaded in the written statement, the third defendant has filed the suit contending that she was never allowed to enjoy flat “D” and that other flat owners are preventing her from enjoying the constructed portion allotted to her. In the suit O.S.No.1974/2001 by the third defendant, third defendant’s son-in-law and her husband were shown as plaintiffs 2 and 3. (x) In O.S.No.1974/2001, plaintiff and other flat owners – Altaf Ahmed, Venkataraman, Suresh Hegde and Vijayan were shown as defendants. Reiterating their plea that the basement area is a common area, with generator room, A/C Room, Store Room, MES Room, as referred in the approved plan and that the land owner and the builder are putting up unauthorized constructions in the basement area in violation of the approved plan, defendants thereon filed written statement resisting the suit O.S.No.1974/2001. .(xi) On the above pleadings, relevant issues were framed in both the suits. .(xi) On the above pleadings, relevant issues were framed in both the suits. In the common Judgment, trial court has held that the Tamil Nadu Apartment Ownership Act, 1994 [for short, the Act], would apply to the building in question. Extracting the provisions of the Act in extenso and referring to Ex.A-6 Plan, the trial Court held that generator room, A/C Room, Store Room, MES Room referred in the approved plan are common amenities available as per Sec.6 of the Act. The trial court further held that in view of Sec.8, no Apartment Owner shall do any work or put apartment to any other use which would jeopardize the safety of the property, without obtaining the consent of all other Apartment Owners. Observing that the construction put up in the basement area is in violation of the approved plan, Trial Court granted declaration and mandatory injunction for demolishing the unauthorized construction and decreed the suit as prayed for. Aggrieved, third defendant has filed the appeal. (xii) Observing that Ex.A-6 approved plan does not give sanction for any construction in the basement floor, the lower appellate court confirmed the findings of the Trial Court that the unauthorized construction in the basement floor is in violation of the approved plan. Insofar as the objection regarding non-impleading of other flat owners in O.S.No.7077/2000, the Lower Appellate Court held that since other flat owners were impleaded as parties in O.S.No.1974/2001, technical objection of non-joinder of necessary parties is unsustainable. Confirming the findings of the trial court, the lower appellate court dismissed both the appeals preferred by the land owner. 5. Challenging the concurrent findings of the courts below, these second appeals filed at the instance of the third defendant. With the consent of the parties concerned, at the stage of notice before admission, the second appeals were taken up for final hearing. During the course of arguments, the following substantial questions of law were formulated for consideration:- "1. Whether the 1st respondent/plaintiff has got locustandi to file the suit in view of Sec.12 of the Tamil Nadu Apartments Ownership Act, 1994? 2. Whether the 1st respondent is entitled to file the suit in his individual capacity as a single flat owner and that the suit is hit by the provisions of under Or.1, R.8 C.P.C? 3. Whether the 1st respondent/plaintiff has got locustandi to file the suit in view of Sec.12 of the Tamil Nadu Apartments Ownership Act, 1994? 2. Whether the 1st respondent is entitled to file the suit in his individual capacity as a single flat owner and that the suit is hit by the provisions of under Or.1, R.8 C.P.C? 3. Whether the suit is maintainable in view of non-performance of the Registration of Deeds of Apartments as contemplated under Sections 5 and 11 of Tamil Nadu Apartment Ownership Act, 1994." The following additional substantial question of law was formed on 03.07.2008. "Whether the Tamil Nadu Apartment Ownership Act VII of 1995 has any application to the suit building? If not, are the Courts justified in passing the impugned Judgment basing solely on the provision of the Act and granting relief against the appellant in favour of the first respondent? 6. S.A.No.802/2008:- "Whether the ambitent scope of Sec.37(2) of Specific Relief Act had to be given appropriate consideration in its proper perspective." 7. Contending that the provisions of Tamil Nadu Apartment Ownership Act 1994 is not applicable to the case, the learned counsel for the appellant made meticulous submissions interalia raising the following contentions:- •As contemplated under Sec.5 of the Act, there is no Deed of Apartment and there is no mention of common amenities in Ex.A-5 and therefore, no relief of declaration sought for could be granted; •The identity of property is lacking and the plaint schedule does not even have any correct description of property and without such description, mandatory injunction for demolition cannot be issued; •As per Sec.12 of the Act, only a Society or a registered Association formed by all the Apartment Owners has got statutory right in dealing with maintenance or interference of the usage of common areas and facilities and suit filed by a individual flat owner is not maintainable. •Other flat owners are not shown as defendants in O.S.No.7077/2000 and the suit is bad for non-joinder of necessary parties. 8. The learned counsel argued that when there is no right in the plaintiff to obtain a declaration that generator room, A/C Room, Store Room, MES Room are common amenities in the common area, courts below ignored prepondering circumstances and erred in granting declaration. 8. The learned counsel argued that when there is no right in the plaintiff to obtain a declaration that generator room, A/C Room, Store Room, MES Room are common amenities in the common area, courts below ignored prepondering circumstances and erred in granting declaration. The learned counsel further submitted that when the courts below ignored the weight of evidence and circumstances, the High Court has to interfere with the findings of fact, though concurrent. 9. Contending that inference from recitals and contents of documents is a question of fact and when the Courts below have failed to appreciate oral and documentary evidence in proper perspective, it would amount to serious error, warranting interference under Sec.100 CPC, the learned counsel placed reliance upon (2006 (4) CTC 79) – Hero Vinoth (Minor) v. Seshammal. 10. Refuting the arguments and drawing the attention of the court to sec.7 of the Act, the learned counsel for the plaintiff has submitted that as per Sec.7 of the Act, any Apartment Owner can file the suit for compliance with covenants, bye-laws and administrative provisions. Drawing attention of the Court to the various agreements between the land owner and the builder, the learned counsel further submitted that there was no consistency in the agreements as to the area to be allotted to the third defendant. The learned counsel would further submit that the third defendant has not come to the court with clean hands by setting forth correct particulars. The main plank of argument was that the impugned construction in the basement area is in clear violation of Ex.A-6 Approved Plan and by concurrent findings, Courts below have rightly granted mandatory injunction for removal of the same and the concurrent findings cannot be interfered with. 11. On behalf of Corporation Mr. L.N. Prakasam has taken notice and CMDA was represented by Mr. C. Kathiravan. The learned counsel for the Corporation as well as CMDA has submitted that the Corporation and CMDA have already arrived at a conclusion that the construction in the basement area is unauthorized and had taken suitable action by issuing notice. The learned counsel would further submit that in any event, the Corporation and CMDA would abide by the orders of the court. 12. The learned counsel would further submit that in any event, the Corporation and CMDA would abide by the orders of the court. 12. Substantial question of law No.3 and Additional Substantial question of law:- In O.S.No.7077/2000, plaintiff seeks for declaration declaring that generator room, A/C Room, Store Room, MES Room referred in the approved plan as common amenities, in the common area. Tamil Nadu Apartments Ownership Act, 1994 shall override other laws. Sec.6 of the Act provides for common amenities. As per sec.6, every Apartment Owner shall be entitled to an undivided interest in the common areas and facilities in the percentage specified in the Deed of Apartment and the limited common areas and facilities. Sec.5 deals with ownership of apartments which is as under:- "Section 5:- Ownership of apartments: Each Apartment Owner shall be entitled to the exclusive ownership and possession of his apartment in accordance with the Deed of Apartment executed and registered in accordance with the provisions of the Act". As per Sec.5, the Apartment Owner shall be entitled to the ownership of his apartment in accordance with Deed of Apartment, executed and registered in accordance with the provisions of the Act. Sec.5 pre-supposes Deed of Apartment. Ex.A-5 is the Deed of Sale for purchase of the flat by the plaintiff. In Ex.A-5 the schedule of property reads as under:- SCHEDULE A All that piece of vacant land measuring 1 ground 1200 square feet in Palmash No.810 Grant No.15, situate at No.12, Varadarajapet, comprised in T.S.No.18/3, Block No.28 Puliyur Village, bounded on the NORTH BY T.N.S.C.B. Dwellings, EAST BY T.N.S.C.B. Dwellings, SOUTH BY Narayana Flats and late Marys property, WEST BY Varadharajapet Main Street and land of R. Jaganathan, situate within the Registration District of Chennai Central and Registration Sub District of Kodambakkam. SCHEDULE B 603.88 undivided share of land from and out of the property described in the Schedule A. 13. Ex.A-5 Sale is dated 11.09.1999. Sanction for Ex.A-6 plan was obtained from Corporation on 111. 1999. The learned counsel for the appellant forcibly contended that in Ex.A-5 - Sale Deed, there is no mention as to the Generator room, A/C Room, Store Room, MES Room nor any mention about the common area and therefore, the plaintiff cannot seek for declaration on the basis of Ex.A-5. Sanction for Ex.A-6 plan was obtained from Corporation on 111. 1999. The learned counsel for the appellant forcibly contended that in Ex.A-5 - Sale Deed, there is no mention as to the Generator room, A/C Room, Store Room, MES Room nor any mention about the common area and therefore, the plaintiff cannot seek for declaration on the basis of Ex.A-5. The learned counsel further argued that the right to have common amenities must be established and then only the plaintiff can seek for declaration and permanent injunction. The main plank of argument is that when there is no mention of common area or common amenities in Ex.A-5 and right to have amenities had not been established, there is no question of granting declaration. 14. No doubt, Description of Property in Ex.A-5 does not refer to common area or common amenities. In the absence of such description given in Ex.A-5, courts below referred to Sec.6 of the Act, which provides for common areas and facilities. Sec.6 of the Act reads as under:- Section 6:- Common areas and facilities: (1) Each Apartment Owner shall be entitled to an undivided interest in the common areas and facilities in the percentage specified in the Deed of Apartment and the limited common areas and facilities. Such percentage shall be computed by taking as the basis the extent of the plinth area available in the apartment in relation to the total extent of the plinth area available in the building. (2) The percentage of the undivided interest of each Apartment Owner in the common areas and facilities, and in the limited common areas and facilities if any, as expressed in the Deed of Apartment shall have a permanent character, and shall not be altered without the consent of all the Apartment Owners. The percentage of the undivided interest in such common areas and facilities and the limited common areas and facilities shall not be separated from the apartment to which it appertains, and shall be deemed to be conveyed or encumbered with the apartment whether or not such interest is expressly mentioned in the conveyance or other instrument. 15. On behalf of the Appellant, it was mainly argued that when there is no Deed of Apartment, as contemplated under Sec.5 of the Act, Courts below erred in invoking Sec.6 of the Act. 15. On behalf of the Appellant, it was mainly argued that when there is no Deed of Apartment, as contemplated under Sec.5 of the Act, Courts below erred in invoking Sec.6 of the Act. The learned counsel further submitted that when Ex.A-5 was entered on 11.09.1999, there was not even a sanctioned plan and therefore, there was no Deed of Apartment as under Sec.5 of the Act and therefore, the provisions of Sec.6 of the Act cannot at all be invoked. 16. Raising strong objections as to the applicability of the provisions of Apartment Ownership Act, the learned counsel for appellant laid emphasis upon the provisions of Sec.2, in support of his contention that the Act would not apply to the present case. Sec.2 which deals with application of the Act, reads as follows:- "This Act shall apply to ever apartment in a building constructed whether before or after the date of commencement of the Act: Provided that such building shall contain five or more apartments or three or more floors and construction of such building has been made in accordance with a planning permit and also a building plan duly sanctioned by the appropriate authority concerned under the relevant law for the time being in force." 17. By a reading of provisions of Sec.(2), requisites for application of the Act are:- (i) five or more apartments; or .(ii) three or more floors; (iii) building has been made in accordance with the planning permit and the building plan duly sanctioned by the Appropriate Authority. 18. Drawing attention of the court to Ex.B-11, Demolition Notice, the learned counsel for the appellant contended that the number of units as per Ex.B-11 are only four, basement plus ground plus First Floor and therefore, going by essential requisites of Sec.2 of the Act, the provisions of the Act would not be applicable and therefore, the Courts below erred in invoking Sec.6 of the Act. The learned Counsel would further submit that when Ex.A-5 does not provide for common amenities and in the absence of applicability of the provisions of Apartment Ownership Act, Sec.6 cannot be invoked and therefore, the plaintiff cannot be said to have established the right over common area and common amenities and there is misapplication of law by the Courts below and the impugned judgment is liable to be set aside. The contention that the provisions of the Tamil Nadu Apartment Ownership Act, 1994 was not applicable was not at all raised before the courts below. Seldom there was any indication in the pleadings that Lakshmi Apartments has only four units and therefore, the provisions of the Act are not applicable. In fact, as seen from Ex.B-11, Demolition Notice, though four units were proposed, six units and one office were constructed and the demolition notice is to the effect that the two units are excess in numbers. When there are totally six units on site, there is no merit in the contention that the provisions of the Apartment Ownership Act is not applicable. 19. As noted earlier, under Ex.A-5, Schedule "B", plaintiff has purchased 603.88 sq.ft. undivided share of land. As per Sec.6 of the Act, each Apartment Owner shall be entitled to undivided interest in the common areas and facilities in the percentage specified in the Deed of Apartment and the limited common areas and facilities. In Ex.A-5 when 603.88 sq.ft. undivided share of land was sold to the plaintiff that percentage has to be taken as basis for calculating the common areas and facilities. Undivided share mentioned in the Schedule "B" would certainly include undivided interest in the common areas and facilities. Resultantly, as held by the courts below, the plaintiff would be entitled to generator room, A/C Room, Store Room, MES Room in the common area. The fact that Ex.A-5 does not make a specific mention of common area would not take away the character of common area. Once construction has been made after approval of the plan and there is a vacant site/common area with common amenities, all the flat owners are entitled to limited right in the common areas and facilities. Observing that non mention of the vacant site in the covenants will not in any way affect the right of the flat owners to use the same, in 2007(1) MLJ 856 [Sashikala rep. by her Power Agent K. Sridharan v. S.A. Sahida Beevi and ors.], Justice M. Chockalingam has held as under:- "18. A reading of the above provision would clearly reveal that the non-mention of the vacant site in the conveyance will not in any way affect the right of the flat owners. by her Power Agent K. Sridharan v. S.A. Sahida Beevi and ors.], Justice M. Chockalingam has held as under:- "18. A reading of the above provision would clearly reveal that the non-mention of the vacant site in the conveyance will not in any way affect the right of the flat owners. So far as Section 6(3) is concerned, it could be seen that once the construction has been made after the approval of the plan, and there is a vacant site, and it is also part and parcel of the scheme, all these flat owners are entitled to use the same". 20. In the said case, owner of the property claimed that the vacant site was retained by her. Observing that once a particular property is reserved for a particular purpose, the learned Judge has held that all flat owners are entitled to use of vacant site as the passage is an incident of common areas and facilities as contemplated under Sec.6 of the Act. 21. In O.S.No.1974/2001, the third defendant herself has filed the suit against five flat owners indicating that there are at least five apartments. Going by Ex.B-11 notice and on the own showing of Defendant, it is evident that there are five more flats in the Lakshmi Apartments. While so, it is not open to the third Defendant to contend that the provisions of the Apartment Ownership Act are not applicable. 22. On the basis of number of available flats, applicability of Act is a mixed question of fact and law. The third defendant ought to have raised that plea in the written statement. In fact, regarding applicability of the Act, no issues were framed in the trial court. Parties went on trial with the awareness that the building in question falls within the ambit of Apartment Ownership Act, 1994. In fact, the Courts below extracted the provisions of the Act in extenso. Before the courts below, no plea was raised as to the non applicability of the Apartment Ownership Act. 23. Parties went on trial with the awareness that the building in question falls within the ambit of Apartment Ownership Act, 1994. In fact, the Courts below extracted the provisions of the Act in extenso. Before the courts below, no plea was raised as to the non applicability of the Apartment Ownership Act. 23. It is pertinent to note that in paragraph ‘e’ of the Memorandum of Second Appeal, the third defendant has raised the contention that as per Sec.12 of the Act only Society or a registered Association formed by the Apartment Owners has got the statutory right to deal with the maintenance and use of the common areas and facilities and individual flat owners cannot maintain a suit. In the grounds of appeal also, no plea was raised as to the non-applicability of the Act. For the first time while advancing arguments, the plea of non-applicability of the Apartment Ownership Act was raised. It is relevant to note out that the contention regarding non-applicability of the Act was formulated only as additional substantial question of law. Since Ex.B-11 refers to construction of six units, and on their own showing, when the builder has put up apartments, the contention regarding non-applicability of the provisions of the Act does not merit acceptance and the substantial questions of law are answered against the appellant. 24. Though Ex.A-5 is not specific about common areas and facilities, the provisions of Apartment Ownership Act has to be read into the Deed of Sale – Ex.A-5. The provisions of the Act are to be interpreted in its letter and spirit, lest, at the time of negotiation and sale the developers can just show the common area and the plan and thereafter, cunningly by not including the common area in the document, may later contend that the flat owner is not entitled to the common area. It is only to meet such unscrupulous conduct of builders and land owners, Sec.6 has been embodied in the Act vesting undivided interest in the common area and facilities upon the Apartment Owners, in the percentage specified in the Deed of Apartment upon the Apartment Owner or otherwise, the intention of the Legislature will be defeated. 25. For the sake of arguments, assuming that the Apartment Ownership Act, 1994 is not applicable, the parties are governed by common law. 25. For the sake of arguments, assuming that the Apartment Ownership Act, 1994 is not applicable, the parties are governed by common law. Sec.55 Transfer of Property Act deals with the rights and liabilities of buyer and seller. It is usually stipulated that the identity of the property should be required to be stated in the description of the property. By and large, no other evidence of the identity of the property should be required than the description of the property in the document. However, in the event of ambiguity, the plan attached to the covenant can be looked into as to ascertain the identity of the property and intention of the parties, even if such a plan is not referred to in the covenant. In the present case, the common area and facilities though not specifically stated in Ex.A-5, the same has been clearly mentioned in the approved plan Ex.A-6. As seen from Ex.A-6 - Plan, basement floor comprises of Generator Room, A.C. Plant, M.E.S. Room etc. which is evidently meant for the common enjoyment of flat owners. Ex.A-5 has to be necessarily read along with Ex.A-6 Approved Plan. There is no force in the contention that when there is no specific mention of common areas and facilities in Ex.A-5, the plaintiff is not entitled to claim any right or interest in the common areas and facilities. .26. Substantial Questions of Law 1 and 2:- .Under Sec.12 of the Act, Apartment Owners shall form a society with the object of maintaining common areas and facilities and the limited common areas and facilities, and the Society shall be responsible for the maintenance of common areas and facilities. Laying emphasis upon Sec.12 of the Act, the learned counsel for the Appellant contended that there is no such Association functioning in the suit property and the plaintiff seeking for declaration in respect of common areas and facilities, ought to have filed the suit in representative capacity. The learned counsel further argued that the suit filed by the plaintiff in his individual capacity is not maintainable in view of the legal provisions under Or.1 R.8 C.P.C. Arguments were advanced contending that without impleading other flat owners, the suit filed in respect of common areas and facilities is not maintainable. The above contention does not merit acceptance. Sec.7 of the Act deals with compliance with covenants, bye-laws and administrative provisions. The above contention does not merit acceptance. Sec.7 of the Act deals with compliance with covenants, bye-laws and administrative provisions. As per Sec.7(2), where any Apartment Owner fails to comply with any of the bye-laws or covenants, such failure shall be a ground for an action against such Apartment Owner to recover sums due, for damages or injunctive relief and that suit is maintainable either by the society or the Association of Apartment Owners or in a proper case by the aggrieved Apartment Owner. Therefore, it is not as if an individual Apartment Owner is always precluded from maintaining a suit when there is non-compliance with covenants, bye-laws and administrative provisions. .27. In the present case, admittedly for the deviation of the approved plan, criminal prosecution was instituted and the fourth defendant – builder was fined in the Metropolitan Magistrate Court. When there was deviation from the approved plan, plaintiff being aggrieved an Apartment Owner, can well maintain the suit for declaration and permanent injunction. 28. In the courts below, the third defendant raised the plea of non-maintainability of the suit and that the suit is bad for non-impleading of all flat owners and without filing petition under Or.1 R.8 C.P.C.,. both the courts below negatived that contention and held that the suit filed by the plaintiff in his individual capacity is well maintainable. The Courts below pointed out that in O.S.No.1974/2001, suit filed by the landlord, all flat owners were impleaded as defendants and further held that though all the flat owners are not impleaded as parties, in O.S.Nos.7077/2000 and 7879/2000, common decision would be binding on all the co-owners in that apartment and therefore, the principle of Or.1 R.8 CPC is not applicable. As rightly held by the Courts below, all flat owners were impleaded as defendants in O.S.No.1974/2001 and therefore, non impleading of other flat owners in O.S.No.7077/2000 would not materially affect the said suit. 29. Plaintiff has filed the suit for declaration that the Generator Room, A.C. Room, M.E.S. Room etc. situated in common areas are the common amenities and facilities to which the plaintiff is also entitled. The other flat owners need not necessarily be impleaded as parties. Object of Or.1 R.8 CPC is to avoid conflicting decisions and multiplicity of proceedings under Or.1 R.8 CPC when there are numerous persons having the same interest in suit. situated in common areas are the common amenities and facilities to which the plaintiff is also entitled. The other flat owners need not necessarily be impleaded as parties. Object of Or.1 R.8 CPC is to avoid conflicting decisions and multiplicity of proceedings under Or.1 R.8 CPC when there are numerous persons having the same interest in suit. In other words, Or.1 R.8 CPC is an enabling rule of convenience, prescribing conditions as per which such persons, when not made parties to a suit, may still be bound by the proceedings therein. Being purely enabling Rule, Or.1 R.8 CPC entitles under certain circumstances, only some of the interested persons to bring a suit on behalf of all. But it does not force to represent many if plaintiffs action is maintainable without joinder of those persons. The fact that relief claimed in the suit would benefit persons, by itself would not make it a representative suit. Maintainability of the suit O.S.No.7077/2000 cannot be challenged on the ground of non-impleading of other flat owners. This is all the more so when other flat owners have been impleaded as defendants in the connected suit O.S.No.1974/2001, which was disposed of by a common judgment. Thus the substantial questions of law are answered in favour of the respondent plaintiff. 30. Substantial questions of law Nos.3 and Substantial question of law in S.A.No.802/2008:- The learned counsel for the appellant contended that the entire case of plaintiff proceeds on the presumptive footing of availability of common area, which according to the learned counsel does not exist. In Ex.B-11 Demolition Notice, the deviation from the approved plan are interalia indicated as below : Description As per As on site Deviation Remarks appd. Plan i) Set Back Spaces 1. No. of floors Basement+ Ground floor 2nd floor part Ground+ part+Stilt+ unauthorized First Floor 2nd floor part Drawing attention of the court to the above deviations, the learned counsel for the appellant contended that as on site, no basement is available and therefore, the plaintiff cannot seek for declaration, which does not exist. The learned counsel further argued that the Courts below proceeded on erroneous footing, committing error of law granting declaration and permanent injunction. As per Ex.B-11 -Demolition Notice, basement, ground floor and first floor are on site and shown as ground floor, stlit and second floor port. The learned counsel further argued that the Courts below proceeded on erroneous footing, committing error of law granting declaration and permanent injunction. As per Ex.B-11 -Demolition Notice, basement, ground floor and first floor are on site and shown as ground floor, stlit and second floor port. As seen from Ex.A-6 plan, the Corporation granted approval for construction only up to first floor and the second floor part is unauthorized construction. The learned counsel for the Appellant contended that basement is not beneath ground level but the ground floor itself and in the absence of any basement available, plaintiff is not entitled to any declaration as to non-existing basement. 31. Acceptance of the above contentions would lead to serious consequences. If basement is to be taken as ground floor, first floor would become second floor. That means, the plaintiff and two others who purchased flats in the first floor will become the Apartment Owners in the second floor. As per Ex.B-11 Notice, second floor was constructed unauthorizedly and for that, show cause notice was issued for demolition. As rightly submitted by the learned counsel for the respondent, plaintiff and other Apartment Owners in the first floor have invested their hard earned money to purchase flats in the first floor by raising loans from the Banks and if CMDA Authorities demolish the second floor, the plaintiffs and two other flat owners in the first floor would be subjected to irreparable injury. The contention that there is no basement and only ground floor is available is untenable. 32. Case of third defendant is that she is entitled to 322 sq.ft. and flat “D” measuring 730 sq.ft. in the basement constructed over the undivided share of 322 sq.ft. and the builder agreed to construct and deliver flat “D” measuring 730 sq.ft. and acted as per the terms and conditions of the agreement. The builder constructed and delivered the suit property to the third defendant as per the agreement and third defendant has become absolute owner of the suit property. There is no consistency insofar as the entitlement of third defendant. In O.S.No.1974/2001, the third defendant claims right in flat “D” measuring 730 sq.ft. in super plinth area in basement floor. As per Ex.B-4 Agreement dated 26.09.1996, builder has paid a sum of Rs.10,00,000/- and agreed to pay the balance of Rs.10,00,000/- towards the sale consideration. There is no consistency insofar as the entitlement of third defendant. In O.S.No.1974/2001, the third defendant claims right in flat “D” measuring 730 sq.ft. in super plinth area in basement floor. As per Ex.B-4 Agreement dated 26.09.1996, builder has paid a sum of Rs.10,00,000/- and agreed to pay the balance of Rs.10,00,000/- towards the sale consideration. That apart, the builder has also undertaken to allot 1,350 sq.ft. constructed area earmarked for the vendor in the first floor. Thereafter, the third defendant and the builder have entered into Ex.B-5 (9. 1998) Supplemental Agreement. As per Supplemental Agreement, instead of construction and delivery of 1,350 sq.ft., fourth defendant shall pay a further sum of Rs.10,00,000/- and agreed to construct and deliver to the third defendant 667 sq.ft. (including common area) in the proposed new building. In the Supplemental Agreement, parties have agreed that if the purchaser fails to construct and deliver the said 667 sq.ft. flat to the third defendant within 12 months, the builder shall be liable to pay compensation at the rate of Rs.2,000/- p.m. as is seen from the following :- "Instead of construction and delivery of 1350 square feet by the PURCHASER to the VENDOR, the PURCHASER shall pay to the VENDOR a further sum of Rs.10,00,000/-(Rupees ten lakhs only) and construct and deliver to the VENDOR 667 square feet (including common area) in the proposed new building to be constructed in the said property. THE PURCHASER herein undertakes to construct and delivery the 667 square feet Flat to the VENDOR within a period of 12 months from this day. If for any reason the PURCHASER fails to construct and deliver the said 667 square feet flat to the VENDOR within the period of 12 months then the PURCHASER shall be liable to pay compensation at the rate of Rs.2000/- per month from the period of default". As per the above clause, apart from the original consideration of Rs.20,00,000/-, the third defendant has received another Rs.10,00,000/- and agreed to get flat of lesser extent of 667 sq.ft. 33. That being so, the landowner (D-3) and the promoter have entered into Ex.B-6 Agreement on 111. 1999, whereby the builder is said to have given possession of flat “D” measuring 730 sq.ft. super plinth area in the basement floor. 33. That being so, the landowner (D-3) and the promoter have entered into Ex.B-6 Agreement on 111. 1999, whereby the builder is said to have given possession of flat “D” measuring 730 sq.ft. super plinth area in the basement floor. It is relevant to note that by showing the basement floor with Generator Room, A.C. Room, Store Room and M.E.S. Room, approval of the plan was obtained from the Corporation on 111. 1999. The Builder has already entered into Ex.A-5 Agreement with the plaintiff even on 11.09.1999. That being so, for putting up construction and delivery of 730 sq.ft. in basement area, consent of other flat owners does not appear to have been taken. As per Sec.8 of the Act, for any work, which would affect the soundness of building, consent of other flat owners be obtained. Sec.8 reads as follows:- "No apartment owner shall do any work or put the apartment to any other use which would jeopardize the soundness or safety of the property, reduce the value thereof or impair any easement or heriditament nor shall any apartment owner add any material structure or excavate any additional basement or cellar without previously obtaining the unanimous consent of all the other apartment owners". As rightly pointed by the Courts below, defendants 3 and 4 have entered into an agreement amongst themselves for construction in the basement and for delivery of 730 sq.ft. flat in the basement area. Having obtained approval for Ex.A-6, for effecting any changes, defendants 3 and 4 have neither obtained approval from Corporation nor had taken consent from other flat owners. The fourth Defendant was obligated to put up construction as per Ex.A-6 Sanctioned Plan. When in Ex.A-6 Plan, basement area was shown as Store Room, A.C. Room, Generator Room, M.E.S. Room, it is nothing but blatant violation of the approved plan to put up substantial flat and commercial area. 34. As held by the trial Court, construction of Residential Flat and commercial area in basement appears to be collusive between land owner and the builder. Even as per Ex.B-5 Agreement, if the builder fails to construct and deliver 667 sq.ft. flat to the land owner, the purchaser/D-4 shall be liable to pay compensation at the rate of Rs.2,000 p.m. Land owner has not sued the builder for damages. Even as per Ex.B-5 Agreement, if the builder fails to construct and deliver 667 sq.ft. flat to the land owner, the purchaser/D-4 shall be liable to pay compensation at the rate of Rs.2,000 p.m. Land owner has not sued the builder for damages. Faced with so much of objection for construction and delivery of flat, the land owner has not even chosen to implead the builder in the suit O.S.No.1974/2001. The construction in the basement was noticed to be unauthorized construction. Noticing the same, CMDA had issued notice for demolition. As seen from Ex.A-11, proceedings of the Corporation dated 212. 2003, for deviation from the approved plan, prosecution was instituted before the XX Metropolitan Magistrate Court and the builder was found guilty and fine of Rs.750/-was imposed upon the builder. 35. Builder and the landowner have also entered into an Agreement with one Ms. Y. Swaminathan, agreeing to construct a flat of 440 sq.ft. in the basement of the suit property, bearing Flat "D-1" for a cost of Rs.2,63,400/-. The said Ms. Swaminathan received a letter from the Flat Owners Association dated 112. 2000 informing her that the builder has not constructed the flat as per the approved plan by the Corporation of Chennai and MMDA. The said Ms. Swaminathan has filed Petition before the District Consumers Forum, Chennai in O.P.No.148/2001. Observing that the builder and the landowner have no right to sell the undivided share of the land to the complainant Ms.Swaminathan, the District Consumers Forum has directed the builder to pay a sum of Rs.3,30,000/- to the complainant M/s. Y. Swaminathan together with interest @ 12% p.a. Plaintiff had filed O.S.No.7879/2000 for Permanent Injunction restraining Ms.Swaminathan from purchasing flat in the basement area. In view of the order of the Consumers Forum, the said suit O.S.No.7879/2000 was dismissed as infructuous. 36. Viewed in the light of the observations of the Consumers Forum, it is amply evident that the construction of residential and commercial area in the basement area is unauthorized. As per Ex.A-6 – Approved Plan, basement floor is to have only Generator Room, Store Room, A.C. Room and M.E.S Room. The building is said to be constructed as per the approved plan. In deviation of the authorized plan, builder was not entitled to put up any additional construction. Under Ex.B-1, when the builder has agreed to construct flat of 1,350 sq.ft. The building is said to be constructed as per the approved plan. In deviation of the authorized plan, builder was not entitled to put up any additional construction. Under Ex.B-1, when the builder has agreed to construct flat of 1,350 sq.ft. in the first floor, for change of construction in the basement, Defendants 3 and 4 have not taken consent of other Flat Owners. When plaintiff and other flat owners have purchased flats going by Ex.A-6 – Approved plan, it was as not open to the builder and land owner to put up construction in the basement. Any such unauthorized construction without consent of other co-owners is complete violation of the provisions of the Act as well as Madras City Muncipal Corporation Act and Town and Country Planning Act. 37. Serious doubts arise as to bonafide of the third Defendant. As pointed out earlier, in Ex.B-5, Supplemental Agreement, in case the builder fails to construct and deliver 667 sq.ft. flat to the vendor/D-3, within 12 months, compensation of Rs.2,000/- p.m. is payable. So far, the third Defendant has not taken steps claiming allotment as per the Agreement or at least claimed compensation. There is much force in the contention of the learned Counsel for the respondent as to the possible collusion between the third Defendant and the builder to grab the common area by putting up commercial and residential flat in the common area. 38. When the price of flats are flying sky high in Chennai, even having small constructed area in prime locality like Kodambakkam would fetch huge amount. Defendants 3 and 4 appear to have colluded with each other in gaining unfair advantage by converting the common area as residential and commercial flat. In suit O.S.No.7077/2000, declaration and Permanent Injunction was granted, which was challenged by the third Defendant in A.S.No.385/2007. The learned Counsel for the plaintiff has submitted that in A.S.No.385/2007, lower Appellate Court has granted interim stay of the operation of the proceedings in O.S.No.7077/2000 for two weeks. The learned Counsel has further submitted that based on the interim stay granted by the lower Appellate Court, the third Defendant has taken forcible possession of the constructed area in the basement. Of course, the same was later brought to the notice of the Appellate Court and after enquiry, the Appellate Court has dismissed the Petition for interim stay. 39. The learned Counsel has further submitted that based on the interim stay granted by the lower Appellate Court, the third Defendant has taken forcible possession of the constructed area in the basement. Of course, the same was later brought to the notice of the Appellate Court and after enquiry, the Appellate Court has dismissed the Petition for interim stay. 39. Contending that any deviation by the fourth defendant would not endanger the public safety and therefore, there cannot be direction for demolition, the learned counsel for the appellant placed reliance upon AIR 1989 SC 860 (M/s. Rajatha Enterprises v. S.K. Sharma). In the said case, legality of the licence issued was questioned invoking writ jurisdiction of the Court. In such facts and circumstances of the case, the Supreme Court has held that when the actual area of deviation is not larger, the order of demolition is untenable. The present appeal arises out of civil dispute where the parties are governed by the terms of their respective agreement. The builder is bound by the terms and conditions of sale as undertaken by him with the plaintiff and other flat owners. It is not open to the fourth defendant to flout the same and thereafter contend that the deviation would not endanger public safety. Being bound by the terms and conditions of agreement with other flat owners, the defendants 3 and 4 are estopped from contending otherwise. 40. Insofar as O.S.No.1974/2001, the third Defendant has sought for Permanent Injunction restraining the other flat owners from interfering with her possession. When a party applies for injunction to restrain the violation of a alleged right, if the existence of the right is disputed, the parties must establish that right before he seeks injunction to prevent the recurrence of its violation. As held by the Courts below, the third Defendant has not shown her right to the flat in the basement. Plea of the third Defendant in O.S.No.1974/2001 lacks bonafide. 41. A perpetual injunction may be granted to prevent the breach of an obligation existing in favour of the plaintiff, whether expressly or by implication; or when such obligation arises from a contract which can be specifically enforced; or when a Defendant threatens to invade or invades the plaintiffs right to, or enjoyment of the property, inter alia. 42. 41. A perpetual injunction may be granted to prevent the breach of an obligation existing in favour of the plaintiff, whether expressly or by implication; or when such obligation arises from a contract which can be specifically enforced; or when a Defendant threatens to invade or invades the plaintiffs right to, or enjoyment of the property, inter alia. 42. Contending that the third defendant, who is entitled to undivided share, is entitled to constructed flat and that the third defendant is also a co-owner, and the plaintiff cannot claim injunction against another co-owner, the learned counsel placed reliance upon 2008(2) CLT 152 [Tanusree Basu & Ors. v. Ishani Prasad Basu & Ors.]. In paragraph 14 of the said Judgment the Court has referred to (3) CCC 377 (Bombay) [Bha Bayaji Pokale & Ors. v. Kantilal Baban Gunjawate & Ors.]. Of course, a co-owner cannot claim an order of injunction against another co-owner with regard to the property owned jointly. But the question whether third defendant is a co-owner or not itself is in dispute. It may be that the builder has undertaken to construct a flat for the third defendant and might have committed breach. If there is any breach of terms of that agreement, the third defendant cannot maintain a suit against the other flat owners, leaving away other flat owners. If really the third defendant is aggrieved, her remedy is only against the builder and not against the Flat Owners and therefore, the above decision is not applicable to the facts of the present case. The evidence and materials on record clearly establish that the basement is a common area and generator room, A.C.Room, store room, M.E.S.Room are the common amenities and facilities in the common area. 43.A Flat could be enjoyed only with the common amenities and facilities available in the common area. No compensation in money could offer adequate relief to the plaintiff. On consideration of the facts and evidence, the Courts below have rightly granted the relief in O.S.No.7077/2000. The concurrent findings and conclusion of Courts below are well balanced, based on proper appreciation of oral and documentary evidence. The impugned judgment of the lower Appellate Court do not suffer from any perversity warranting interference. 44. In the result, S.A.No.761/2008: The concurrent findings of the Courts below in A.S.No.385/2007 dated 211. The concurrent findings and conclusion of Courts below are well balanced, based on proper appreciation of oral and documentary evidence. The impugned judgment of the lower Appellate Court do not suffer from any perversity warranting interference. 44. In the result, S.A.No.761/2008: The concurrent findings of the Courts below in A.S.No.385/2007 dated 211. 2007 on the file of the VI Additional City Civil Court, Chennai [arising out of O.S.No.7077/2000 dated 24.01.2007 on the file of the XIV Asst. City Civil Court, Chennai] is confirmed and this second appeal is dismissed. No costs. S.A.No.802/2008: The concurrent findings of the Courts below in A.S.No.641/2007 dated 211. 2007 on the file of the VI Additional City Civil Court, Chennai [arising out of O.S.No.1974/2001 dated 24.01.2007 on the file of the XIV Asst. City Civil Court, Chennai] is confirmed and this second appeal is dismissed. No costs. 45. In the second appeal, when the matter was being part heard, the learned counsel for the appellant brought to the notice of the court that the impugned construction in the basement was partly demolished and that the first respondent/plaintiff has taken law into his own hands. In response, the learned counsel for the plaintiff had submitted that the plaintiff has already filed E.P.No.3996/2007 and warrant was already issued to the Corporation and the impugned construction in the basement was demolished pursuant to the warrant issued by the Executing Court. On such representation, by the order dated 26.06.2008, the Court has directed both parties to maintain status quo. In view of the findings that construction in the basement area is unauthorized, the order of status quo is liable to be vacated and it is vacated accordingly. C.M.P.No.1/2008 is dismissed.