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2008 DIGILAW 4450 (MAD)

Chellam Iyer & Another v. J. Ranganathan & Others

2008-12-02

D.MURUGESAN, V.PERIYA KARUPPIAH

body2008
Judgment :- V. Periyakaruppiah, J. 1. This Appeal has been directed against the dismissal order passed by a learned Single Judge of this Court in O.A. No.659 of 2007, an Application seeking for temporary injunction restraining respondents/defendants 1 to 4 their man, agents servants, or any one claiming under them or acting on their behalf from in any way interfering with the peaceful possession and enjoyment of the Schedule `C property inclusive of the Schedule `A property either by using as a passage or in any other manner whatsoever pending Suit and ordering of the Application in A. No.4581 of 2007, an application to vacate the interim injunction passed by the learned Single Judge in O.A. No.659 of 2007 in which the interim injunction was granted. 2. The brief facts as submitted by both the parties before the learned Single Judge of this Court are as follows : "(i) The case of the plaintiffs is that they purchased 1894 sq. ft. of undivided share of land out of 6175 sq.ft. shown in Plaint `A schedule under the sale deed dated 30.03.1994. There are three flats in `A Schedule property which is connected by a common pathway running from north to south. A compound wall and a gate is there at the common pathway for access to the plaintiffs property. Defendants 1 and 2 purchased vacant site on the eastern side of the property from the very same vendor Mrs. Thangam. No right was given to defendants 1 and 2 in `C Schedule property which is part of a `A Schedule property. During January 2007, the defendants 1 and 2 started demolishing the compound wall and performed pooja in the vacant site. The vehicles carrying construction materials started entering the gate of the plaintiffs property and used to unload the materials through `C Schedule property. Defendants 3 and 4, with the help of rowdy elements, broke open the lock of the gates of the plaintiffs property on 12.04.2007 and trespassed into `C Schedule property and started putting up construction in their land. The construction activities by dumping construction materials over `C Schedule property blocks the ingress and egress of the plaintiffs through `C Schedule property. The defendants informed the plaintiffs that they would use `C Schedule property as a pathway. Therefore, the plaintiffs are before this Court seeking an order of interim injunction pending Suit. The construction activities by dumping construction materials over `C Schedule property blocks the ingress and egress of the plaintiffs through `C Schedule property. The defendants informed the plaintiffs that they would use `C Schedule property as a pathway. Therefore, the plaintiffs are before this Court seeking an order of interim injunction pending Suit. (ii) In the counter, respondents/defendants 1 to 3 have contended that the 3rd respondent is the power of attorney of respondents 1 and 2 in respect of the property bearing Plot No.12, Dr. Ranga Road, admeasuring 3412 sq. ft. The defendants 1 and 2 have purchased the said extent of land along with 1/9 common share on the road running to north to south to reach Dr. Ranga Road measuring 182 ft. length and 19.6 ft. in width. Such right has been incorporated in the sale deed itself. The plaintiffs are yet to establish their title and possession in respect of `C Schedule property. The defendants denies the claim of the plaintiffs that `C schedule property is the exclusive property of the plaintiffs and defendants 6 to 9. The defendants 1 and 2 have obtained proper planning permission from the 6th respondent/defendants. They have to carry the construction materials only through the common pathway as no other way is available to them. No other flat owner had raised any objection. The plaintiffs have not made out any prima facie case in their favour and hence, the interim injunction granted in favour of the applicants may be vacated." 3. Considering the submissions of both sides, the learned Single Judge had passed a common order in both the Application on 29.08.2008 by dismissing the O.A. No.659 of 2007 and vacated the interim injunction already granted and consequently A. No.4581 of 2007 was allowed. 4. For convenience sake, the rank of parties are referred in this judgment as in O.A. No.659 of 2007. 5. Heard the learned Senior Counsel Mr. T.V. Ramanujam, appearing for the appellants/applicants and Mr. M. Krishnappan, learned Senior Counsel appearing for the respondents. Mr. 4. For convenience sake, the rank of parties are referred in this judgment as in O.A. No.659 of 2007. 5. Heard the learned Senior Counsel Mr. T.V. Ramanujam, appearing for the appellants/applicants and Mr. M. Krishnappan, learned Senior Counsel appearing for the respondents. Mr. T.V. Ramanujam, learned Senior Counsel would submit in his argument that the Suit was filed by the applicants seeking for a declaration that the plaintiffs are the co-owners of the property described in "A" Schedule comprising "C" schedule property along with defendants 6 to 9 as co-owners and consequently injunct the defendants 1 to 4, their men or agents or their servants from in any way interfering with the peaceful possession and enjoyment of the property, more fully described in the `C Schedule either by forcibly entering into the same or in any other manner whatsoever and consequently, to direct the 5th defendant, the Corporation of Chennai to demolish the unauthorized construction which has been put up in the property of defendants 1 and 2 on the eastern side of the `A Schedule property ( which includes `C Schedule property) and for costs. He would further submit that the Suit was necessitated since the defendants 1 to 3 had performed the "Boomi Pooja" for commencing the construction in the property belonging to them lying on the eastern side of the `C Schedule property and were carrying the construction materials by entering into the `C Schedule property and unload those materials in Schedule property and, thereafter, on 12.04.2007 the defendants 3 and 4 had, with rowdy elements, broke open the lock of the big gate put up by the plaintiffs and the defendants 6 to 9 in the `C Schedule property and highhandedly trespassed into `C Schedule property and started putting up construction in their land. He would further submit that the defendants 1 to 4 have no right in the `A Schedule property which comprises of `C Schedule property, which is lying immediately on the western side of the property belonging to the defendants 1 and 2. He would further draw our attention that the `A Schedule property and the property belonging to the defendants 1 and 2 were originally belonging to the common vendor namely Mrs. He would further draw our attention that the `A Schedule property and the property belonging to the defendants 1 and 2 were originally belonging to the common vendor namely Mrs. Thangam, she had sold the property to the plaintiffs and the defendants 6 to 9 with respective undivided interest in the landed property shown in `A schedule property along with the apartments built in `A Schedule property and the defendants 6 to 9 are the co-owners of the plaintiffs/applicants and any one of the co-owners is entitled to protect his or her right over the property since each of the co-owner of `A Schedule property is entitled to be in possession and enjoyment of the entire `A Schedule property as an undivided interest in the vacant site has been purchased by them from the common vendor. He would further submit that the defendants 1 and 2, purchased the property lying adjacently east of `A schedule property in respect of and portion with specific boundaries, and are entitled to only the right in the property apart from the common pathway, which is lying on the south of the `C Schedule property and the defendants 1 and 2s portion of the property, till Dr. Range road. He would also draw the attention of the Court that the boundaries mentioned in the title deeds executed by the common vendor in favour of the plaintiffs and defendants 6 to 9 on the one hand and the title deeds in favour of the defendants 1 and 2 on the other hand would show that the adjacent boundaries namely eastern boundary as that of the defendants 1 and 2 in the sale deeds 6 to 9. The western boundary of property belonging to the defendants 1 and 2 in their sale deed was shown as `C Schedule property and, therefore, both the parties cannot claim more than the property described within the boundaries either on the eastern side or western side respectively. He would further submit in his argument that the rough sketch filed along with the plaint would go to show that the defendants 1 and 2 are having a small gate facing the common pathway leading to Dr. Ranga Road and through which gateway they have to ingress and egress and they cannot ask for more property for their access through the property belonging to the plaintiffs and defendants 6 to 9. Ranga Road and through which gateway they have to ingress and egress and they cannot ask for more property for their access through the property belonging to the plaintiffs and defendants 6 to 9. He would also submit that the claim of the defendants 1 and 2 that common vendor Mrs.Thangam had retained an extent of 84 sq. ft. and had sold the property of 6,091 sq. ft. only to the plaintiffs and defendants 6 to 9 out of the total extent of 6,175 sq. ft. and, therefore, the plaintiffs and defendants 6 to 9 cannot claim more than that of 5,091 sq. ft., hold water because the boundaries as shown in the title deeds of the plaintiffs 1 and 2 and defendants 6 to 9 would show eastern boundary as that of the portion of the vendor Mrs. Thangam which was sold subsequently to the defendants 1 and 2. Therefore, he would urge that the boundaries will prevail over the measurements when the dispute has arisen in between the boundaries and extent conveyed by the vendor. He would also cite an authority reported in between Kuppuswami Naidu v. Krishnasami Naidu, 2004 (5) CTC 344 , a judgment of this Court in support of his specific case. 6. It is also submitted by the learned Senior Counsel Mr. T.V. Ramanujam that the defendants cannot dispute the title of the plaintiffs 1 and 2 and defendants 6 to 9 in respect of `A schedule property which comprised `C Schedule property as shown in the Plaint sketch and therefore, they cannot have any access into the Schedule property as shown in the Plaint sketch and, therefore, they cannot have any access into the `C Schedule property to which they have no title. The alleged right as claimed by the defendants 1 to 4 that they are entitled to a right of easement by necessity since they have no other access except the `C schedule property to reach the common pathway lying on the southern side of the big gate leading to Dr. Ranga road cannot be sustained because the defendants 1 to 4 have got a gateway put up in their property to have an access to the common pathway leading to Dr. Ranga road. Ranga road cannot be sustained because the defendants 1 to 4 have got a gateway put up in their property to have an access to the common pathway leading to Dr. Ranga road. He would also submit that while using one way belonging to the said person would not be leading to any cause of action for asking the neighbours property by way of easement of necessity for convenient enjoyment. He had also cited a judgment of the Lahore High Court reported in Sheo Nath and others v. Mughla, AIR 1938 Lahore 800, to that position of law. More over, he would also submit that the claim of the defendants 1 to 4 that they are entitled to use `C schedule property on the basis of the right of easement by necessity is not possible because the right of easement of necessity is a right to be declared by a Court of law only after the person claiming such right, impleading all the parties and the adjacent owners of the property, thereafter only it can be declared to the said person and it cannot be decided in a case filed by the applicants/plaintiffs seeking for an injunction against defendants 1 to 4. More over, the finding of the learned Single Judge that the defendants 1 to 4 have got the licence agreement from the defendants 6 and 7 for the purpose of using `C schedule property for ingress and egress without blocking the way by parking their vehicles and therefore defendants 1 to 4 cannot be injuncted is not sustainable. He would further argue that it would not give any right to defendants 1 to 4, since defendants 6 and 7 have got only an undivided interest in the vacant site which was attached to the apartment they have purchased and that the defendants 6 and 7 cannot issue license to any person in respect of the undivided interest in the vacant site which is also belonging to the other co-owners including the plaintiffs. Therefore, he would submit that the applicants are having a prima facie case against the defendants 1 to 4 from injuncting them from in any way interfering with the peaceful possession and enjoyment of the `C Schedule property and hence, considering all these aspects an order of interim injunction was granted. 7. The learned Senior Counsel Mr. Therefore, he would submit that the applicants are having a prima facie case against the defendants 1 to 4 from injuncting them from in any way interfering with the peaceful possession and enjoyment of the `C Schedule property and hence, considering all these aspects an order of interim injunction was granted. 7. The learned Senior Counsel Mr. T.V. Ramanujam would insist in his argument that defendants 1 to 4 have to exercise their right within the property they purchased and they cannot encroach upon the property belonging to the plaintiffs and the defendants 6 to 9. He would also submit that if temporary injunction is not granted in favour of the plaintiffs 1 and 2 and if defendants 1 to 4 uses `C Schedule property as directed by the learned Single Judge for the purpose of constructing the super structure in the property, which is lying adjacently east of `C Schedule property, to which the plaintiffs have sought for demolition of the unauthorized construction by the 5th defendant Corporation of Chennai, would be defeated. The findings given by the learned Single Judge that the balance of convenience is also in favour of the defendants 1 and 2 and irreparable loss would be caused to them are not correct and actually irreparable loss would be caused only to the plaintiffs in the event of not granting the temporary injunction and, therefore, the balance of convenience is only in favour of the applicants. Therefore, he would request the Court to order granting temporary injunction till the disposal of the Suit by allowing the Appeal and thereby to set aside the order passed by the learned Single Judge. 8. Mr. M. Krishnappan, learned Senior Counsel, appearing for the respondents would submit in his arguments that the applicants/plaintiffs 1 and 2 have not come with clean hands as they have already filed a Suit before the City Civil Court, Chennai, in O.S. No.745 of 2006 seeking a permanent injunction and on failure to get an order of interim injunction in I.A. No.2362 of 2006 had filed the Suit before this Court and had obtained interim injunction. He would further submit in his argument that the defendants 1 and 2 had obtained the licence from the defendants 6 and 7 who are also the co-owners of the `C Schedule property, to ingress and egress for the purpose of putting up construction in their property lying adjacent to the eastern side of the `C Schedule property. He would further submit that the plaintiffs 1 and 2 and the defendants 6 to 9 are co-owners of the `A Schedule property adjacent to the property belonging to the defendants 1 and 2. But, defendants 1 and 2 are entitled to ingress and egress through `C Schedule property as they have no other way to reach the common pathway leading to Dr. Ranga Road except through the licence granted by the defendants 6 and 7 who are the co-owners of the `C Schedule property. He would further submit that if injunction is granted it would certainly prejudice the defendants 1 to 4 since they are constructing the super structure in their property by taking the construction materials through `C Schedule property on the strength of the licence agreement given by the defendants 6 and 7. The injunction, if ordered, would cause irreparable loss to the defendants 1 to 4 and, therefore, the balance of convenience is also in favour of the defendants 1 to 4 and against the grant of temporary injunction. He would further submit that the learned Single Judge had gone through the entire facts and circumstances of the case and had vacated the interim injunction granted by the said Court and dismissed the Injunction Application and consequently, the Application to vacate the interim injunction was allowed. He would further request the Court to maintain the order passed by the learned Single Judge in refusing the injunction against the defendants I and 2 and the permission given to defendants 1 and 2 to use `C Schedule property to access their property lying on the east of `A Schedule property till their claim of necessity is decided finally in the Suit. 9. We have given our anxious consideration to the arguments advanced on either side. 9. We have given our anxious consideration to the arguments advanced on either side. The admitted case of both parties which could be culled out from the pleadings and the arguments advanced on either side could be that the plaintiffs 1 and 2 along with defendants 6 to 9 are the owners of `A Schedule property and the super structure constructed therein in the said property. Accordingly, defendants 8 and 9 are occupying the ground floor of the building constructed in the `A Schedule property. Plaintiffs 1 and 2 have occupied the first floor and the defendants 6 and 7 have occupied the second floor of the building as the owners of the respective apartments along with the undivided share of 1029 sq.ft. each for defendants 8 and 9 in `A Schedule property and undivided share of 894 sq. ft. and 1000 sq. ft. in `A schedule property in favour of the plaintiffs 1 and 2 and undivided share of 1732 sq. ft. and 407 sq. ft. in favour of D.6 and D.7 respectively. The said property were sold to the defendants 8 and 9, plaintiffs 1 and 2 and defendants 6 and 7 by the common vendor Mrs. Thangam. Therefore, we could safely see that the property lying on the west of the property belonging to the defendants 1 and 2 are belonging to plaintiffs 1 and 2 and defendants 6 to 9. Therefore, the properties as shown in the Plaint `A schedule is inclusive of `C Schedule are belonging to the plaintiffs 1 and 2 and defendants 6 to 9. The big gate as noted by the Commissioner in `C Schedule property facing the common pathway leading to Dr. Ranga Road including the shed therein are also belonging to plaintiffs 1 and 2 and defendants 6 to 9. Similarly, the property shown in black striped portion with small gate as shown in the sketch is belonging to defendants 1 and 2. It is also the admitted case that the small gate facing the common pathway leading to Dr. Ranga Road is within the property of defendants 1 and 2 and that is the only way for the defendants 1 and 2 to get access to Dr. Ranga Road through the common pathway. It is also the admitted case that the small gate facing the common pathway leading to Dr. Ranga Road is within the property of defendants 1 and 2 and that is the only way for the defendants 1 and 2 to get access to Dr. Ranga Road through the common pathway. Having the admitted facts are such, whether the defendants 1 to 4 are entitled to get access through `C Schedule property to the common pathway leading to Dr. Ranga Road is the question to be answered. There is no dispute that the defendants 6 to 9 have not joined with the plaintiffs 1 and 2 in filing the Suit against the defendants 1 and 4. 10. It is also the case of the defendants 1 to 4 that defendants 6 and 7 who have bought larger undivided interest in the `A schedule property have given licence to the defendants 1 to 4 to ingress and egress through the `C Schedule property to reach the common pathway in order to put up construction in the property belonging to defendants 1 and 2. It is also claimed by the defendants 1 to 4 that the defendants 1 and 2 are also entitled to use `C Schedule property to reach the common pathway leading to Dr. Ranga Road on the basis of easement of necessity since they have no other access to reach the road. 11. According to the learned Senior Counsel appearing for the appellant, the easement by necessity is a tangible right which has to be decided by a competent Court of law as would rise in a separate cause of action and such a right could not be decided in a Suit filed by the plaintiffs seeking for an injunction. No doubt the claim of the defendants 1 and 2 as to a right of easement by necessity has to be decided by a competent Court and only after such declaration by a competent Court the defendants 1 and 2 can exercise such a right. The judgment cited by the learned Senior Counsel for the appellants reported in Sheo Nath and others v. Mughla, AIR 1938 Lahore 800, would recite the following principles : "An easement of necessity is not to be granted merely on the ground of convenience and advantage, but solely on the ground of absolute necessity. The judgment cited by the learned Senior Counsel for the appellants reported in Sheo Nath and others v. Mughla, AIR 1938 Lahore 800, would recite the following principles : "An easement of necessity is not to be granted merely on the ground of convenience and advantage, but solely on the ground of absolute necessity. Where there are other ways for ingress and exit, an easement of necessity cannot be claimed merely on the ground that such ways are inconvenient." Thus, it is clear that the said right of easement by necessity cannot be considered or granted merely on the ground of convenience and advantage but solely on the ground of absolute necessity. We could see through the Commissioners report and sketch as well as the sketch produced by the plaintiffs that there was a small gate through which the defendants 1 and 2 were accessing into the common pathway leading to Dr. Ranga Road all these days. The proposed convenience of defendants 1 and 2 may be greater as per the wish of defendants 1 and 2. Such a convenience of a party cannot be the criterian to decide the easement by necessity as per the aforesaid principle and it is not a forum to decide the easement of necessity in a suit filed by the plaintiffs on a different cause of action. More over, the undeclared easement of necessity cannot be used as a weapon to defend against the right of the plaintiffs and defendants 6 to 9. 12. So far as the licence agreement given by D.6 and D.7 is concerned, the right and title of D.6 and D.7 as given by the common vendor Mrs. Thangam through the sale deeds in favour of defendants 6 and 7 were the undivided interest of 1732 sq. ft. and 407 sq. ft. respectively in `A Schedule property along with the second floor of the building. As far as the title in the undivided share to an extent of 1732 sq. ft. and 407 sq. ft. are concerned, such an extent cannot be identified in the total extent of 6091 sq. ft. or 6175 sq. ft. of the `A schedule property. The said right of possession could be exercised by D.6 and D.7 in any one of the corners of `A schedule property. ft. and 407 sq. ft. are concerned, such an extent cannot be identified in the total extent of 6091 sq. ft. or 6175 sq. ft. of the `A schedule property. The said right of possession could be exercised by D.6 and D.7 in any one of the corners of `A schedule property. Similarly, the plaintiffs and defendants 8 and 9 are also having such a right over the `A Schedule property. Therefore, the defendants 6 and 7 cannot permit any other person to Bhare with the enjoyment of the said undivided interest by granting licence without joining the other co-owners namely plaintiffs 1 and 2 and defendants 8 and 9. The alleged licence agreement, without joining plaintiffs 1 and 2 and defendants 8 and 9 will not in any way give right to defendants 1 and 2 to enter into the `C Schedule property in order to have access to the common pathway leading to Dr. Ranga Road for the purpose of putting up construction in their property. No doubt the defendants 6 and 7 are entitled to transfer the undivided interest in `A schedule property to any other person as they like as it is a transferrable title. Whereas the alleged licence agreement said to have been executed by D.6 and D.7 in favour of defendants 1 and 2 would include D.1 and D.2 to share with the right in the undivided interest derived from D.6 and D.7 to the detriment of other co-owners. Such a licence is not ex facie enforcable to the. detriment of other co-owners valid in law and, therefore, the finding of the learned Single Judge that the balance of convenience is not in favour of plaintiffs 1 and 2 but only in favour of defendants 1 to 4 cannot be sustainable. The finding of the learned Single Judge that the prima facie case was in favour of the plaintiffs 1 and 2 should have been considered in such a manner that, their right in `A Schedule property should not have been disturbed by the way of ingressing and egressing or damaging the big gate put up by the plaintiffs 1 and 2 and D.6 to D.9. Similarly the permission granted by the learned single Judge to defendants 1 to 4 to use `C schedule property after vacating the interim injunction already granted is also amounting to an invasion of the rights of the plaintiffs and defendants 6 to 9. Therefore, the findings of the learned Single Judge are not in accordance with law and they are liable to be set aside. The interim injunction originally granted in favour of the applicants should have bean made absolute and the Application filed to vacate the interim injunction should also be dismissed. 13. Therefore, we are of the considered view that the plaintiffs 1 and 2 are entitled to temporary injunction as asked far by them against defendants 1 to 4 and accordingly the Petition filed by them in O.A. No.659 of 2007 is allowed. Consequently, the Application filed by the defendants 1 to 4 to vacate the interim injunction granted by the learned Single Judge is dismissed. In fine, the Appeal is allowed with costs.