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2008 DIGILAW 941 (AP)

P. Raghu Kumar v. A. Chakrapani

2008-11-04

G.V.SEETHAPATHY, V.ESWARAIAH

body2008
JUDGMENT (Per V. Eswaraiah, J.) This Civil Miscellaneous Appeal has been filed by the appellants/plaintiffs, against the order passed by the II Additional Chief Judge, City Civil Court, Hyderabad in I.A.5643/2007 in 0.S.538/2007, dated 31.03.2008, under which an application filed under Order 39 Rules 1 and 2 CPC, was partly allowed, limiting the injunction order granted earlier for a limited period of three months so as to enable the petitioners herein to call upon their builder to provide them an approach for the northern block parking area in the cellar. 2. The plaintiffs filed the suit O.S. NO.538/2007 for grant of permanent injunction in their favour restraining the defendants, who are respondents herein, from taking up any construction either in the cellar or any other common areas of the building like staircase, terrace portion of the building either in the nature of partition/dividing wall or otherwise affecting the accessibility of parking portion allotted to the respective flat owners through the southern side main entrance of the cellar of premises bearing No.8-2-293/82/U275/A, Venkatesh Residency complex, MLA colony, Road NO.12, Banjara Hills, Hyderabad in any manner whatsoever. 3. Pending disposal of the suit, the appellants/plaintiffs filed I.A.5643/2007 for grant of temporary injunction under 0r.39 Rules 1 and 2 CPC. An order of injunction, directing to maintain status quo was granted on 08.10.2007 and after filing the counter by respondent Nos.1 to 4, the said injunction order is directed to be continued for a limited period of three months only by order dated 31.03.2008 so as to enable the petitioners/ plaintiffs to call upon their builder to provide them an approach for the northern block parking area in the cellar. Aggrieved by the same, the petitioners/plaintiffs filed this appeal. 4. The appellants are hereinafter referred to as 'plaintiffs' and the respondents are hereinafter referred to as 'defendants' for the sake of convenience. The plaintiffs are the purchasers of Flat Nos.F4 and F3 on the first floor of the suit schedule premises. The 151 defendant is the original owner of the Schedule-I property mentioned in the Development Agreement-cum-General Power of Attorney, dated 19.10.2000. The 2nd defendant is the partnership firm, represented by its partners, defendants 3 and 4, and they are hereinafter referred to as 'developers'. The 51h defendant is another purchaser of Flat NO.G2 on the ground floor. 5. The 151 defendant is the original owner of the Schedule-I property mentioned in the Development Agreement-cum-General Power of Attorney, dated 19.10.2000. The 2nd defendant is the partnership firm, represented by its partners, defendants 3 and 4, and they are hereinafter referred to as 'developers'. The 51h defendant is another purchaser of Flat NO.G2 on the ground floor. 5. The brief facts are that there was a Development Agreement-cum-General Power of Attorney executed in between the 151 defendant and defendant Nos.3 and 4, dated 19.10.2000, which was marked as EX.P1 in the impugned order. As per EX.P1, the 151 defendant was the absolute owner of the plot NO.275A in the layout of Sri Venkateswara Cooperative House Building Society, situated in Sy.No.403/1 of Shaikpet and 102/1 of Hakimpet village, Golkonda Mandai, Hyderabad, admeasuring 600 sq.yards. The said property was entrusted to the defendants 3 and 4 and they were appointed as attorneys of 151 defendant, conferring outright development rights exclusively over the said property and permitting them to construct residential/ commercial complex with their own funds and deliver to the 151 defendant to the extent of 50% built up area in the shape of apartments towards the south block in the building complex on all the floors. The developers are entitled to 50% of the built up area and entitled to transfer the same in favour of the prospective purchasers towards the northern block of the building complex. It is stated that as per Clause-3(B) of Ex.P1, the working plans and a statement shall be duly signed before commencing the construction work which shall form part of the said instrument. The original owner and developers shall have equal rights in respect of parking area of vehicles as well as terrace of the residential complex to be constructed at the cost of the developers alone. The developers have also deposited a sum of Rs.3,00,000/- with the owner. The construction shall be made within 12 months with grace period of another two months as per the specifications, and any defects and deficiencies in the specification and construction if pointed out within three months by the 151 defendant, then the developers should rectify the same within a month at their cost. The 151 defendant shall retain a sum of Rs.30,000/- from the deposit money till the defects are rectified by the developers. The 151 defendant shall retain a sum of Rs.30,000/- from the deposit money till the defects are rectified by the developers. The floor/built up area in the building complex shall be constructed as per the specifications mentioned in the Annexure, which is applicable to all the accommodation or the apartments etc. in the complex. The 151 defendant shall have a right to inspect the construction to satisfy himself about the quality and adherence to the specifications and shall not obstruct the construction work as long as the developers follow the terms and conditions mentioned in the agreement. 5 (a). It is stated that neither the original owner/151 defendant nor the developers or intending purchasers have any right to demand partition of the undivided share in the land at any time, but to enjoy the same in relation to exclusive ownership of the floor areas/apartments being constructed by the developers for the beneficial use of the owners/intending purchasers. The 151 defendant and other intending purchasers shall use the common areas like corridors, stairs, passage, common facilities like electricity, water supply mains, sumps, drainage, sewerage and all other common amenities jointly and peacefully. If there is any delay in handing over the built up area as per the specifications by the developers to the 151 defendant, the 151 defendant is entitled to demand Rs.30,000/- per month till his share of flats are handed over to him. The 1st defendant shall repay the deposit of Rs.3,00,000/- to the developers on the day of delivery of possession of the complete share of built up area. The 1st defendant also executed an irrevocable General Power of Attorney in favour of the developers. The developers are entitled to alienate their half share of undivided land, built up area and parking spaces for consideration in favour of third parties. 5 (b). Schedule-I and II property of the Development Agreement-cum-General Power of Attorney is as follows: Schedule-I Property: (The particulars of the site for construction of building complex) All that piece and parcel of the plot NO.275A in the layout of Sri Venkateswara Co-operative House Building Society, situated in Survey No. 403/1 of Shaikpet village and 102/1 of Hakimpet village, Golkonda Mandai, Hyderabad, admeasuring 600 sq. yards equivalent to 500 sq. yards equivalent to 500 sq. meters along with leveling, improvement & a built up house thereon, bouned by: North : Plot NO.274A South : 40' wide road East : Plot No.275A/A West : 30' wide road Schedule-II Property: An undivided share of land admeasuring 50% out of the schedule-I property (600 sq. yards) together with a proportionate (50%) built up areas out of the constructed areas of 5400 sq.teet to be constructed by the Second Party. Annexure-1 of the specifications relating to common areas, is as follows: "All driveways and parking areas to be leveled and consolidated fully. Concreting is to be made with 4" thick PCC. The top layer shall be finished in 1" thick granolithic flooring 1: 1 :2 laid in panels with required slopes. South Block should have separate entry & exit for cars along with a compound wall". 6. It is the case of the plaintiffs that the 1 st defendant is the original owner of the property admeasuring 600 sq.yards and he entered into Development Agreement-cumGeneral Power of Attorney with defendants 3 and 4 who represent the 2nd defendant partnership firm and as per the said Development Agreement-cum-General Power of Attorney, the residential complex has been constructed and the 1st plaintiff purchased Flat No.4 and the 2nd plaintiff purchased Flat NO.3 on the first floor of the residential complex vide Exs.P3 and P4 sale deeds dated 24.07.2002 and 24.01.2002 respectively. It is stated that Schedule-I property mentioned in the sale deeds is the same as mentioned in Schedule-I property of EX.P1 Development Agreement-cum General Power of Attorney. Schedule-II property of the sale deeds is with reference to the residential flat Nos.4 and 3, admeasuring 2,100 sq.ft and 2,150 sq.ft. respectively of the super built up area including the common areas and with car parking lots in the stilt together with proportionate undivided share of the land equivalent to 100 sq.yards by each of the plaintiffs 1 and 2 out of the Schedule-I property. Similarly, 5th defendant purchased Flat NO.G2 on the ground floor with common rights in the amenities along with undivided share in the land. 7. Similarly, 5th defendant purchased Flat NO.G2 on the ground floor with common rights in the amenities along with undivided share in the land. 7. It is stated that 50% of the constructed area towards southern side block was allotted in favour of the 1st defendant and the remaining 50% towards the northern side block was retained by the developers, which was sold in favour of the plaintiffs 1 and 2 and the 5th defendant. After the purchase of flats by the plaintiffs, they have performed house-warming ceremony in 2002. Though the cellar was not provided in the sanctioned plan, the same was made available at the time of construction, and as per the oral agreement arrived at between the 151 defendant and defendants 2 to 4, the entire complex has been constructed and the 50% of the constructed area towards the southern side block was retained by the 151 defendant and the remaining 50% towards the northern side block which fell to the share of developers has been sold away, but the common amenities, parking and all other amenities are jointly to be made use of by the purchasers in proportion to their respective rights. There is no dispute with regard to the enjoyment of their flats and other facilities provided to their residential flats including water, electricity, drainage etc., but with regard to the parking area is concerned, it is stated that there are 12 car parking areas available in the entire cellar and out of them the 151 defendant is entitled for six car parking areas and the developers are entitled for remaining six parking areas. Thus, it is stated that the 151 defendant owner is having right to the extent of 50% share in the parking area and all other amenities, common areas etc. and the remaining 50% which fell to the share of the developers has been transferred in favour of the plaintiffs 1 and 2 and the 51h defendant. While so, it is stated that the 151 defendant started creating unnecessary controversy in the complex by threatening that he would construct a dividing wall, dividing the cellar into southern and northern portions. It is stated that the cellar/stilt portion does not have any entry from the northern portion in view of the steep gradient due to natural formation of soil and subsoil. It is stated that the cellar/stilt portion does not have any entry from the northern portion in view of the steep gradient due to natural formation of soil and subsoil. Keeping the same in view, the only entrance that was provided for and which is being used by all the residents of flats is through southern side area, and one entry is towards the southern side and another entry is towards the western side which are meant for entry rind exit. Two gates towards the south and west are provided only in the southern half portion area of cellar. There is no other car entry to the cellar on the remaining half side area of the northern place except an entry to enter into the staircase for pedestrians. 8. It is stated that with a common understanding and mutual agreement the entire complex was constructed by the defendants 1 to 4 and the entire cellar area was constructed only for the purpose of car parking for the common usage of all the flat owners proportionate to their rights, but the 151 defendant without any justification whatsoever made an attempt to construct a dividing wall from the east to west to divide the cellar into southern and northern portions preventing all the flat owners residing on the northern side of the complex from making use of their car parking. Therefore, it is stated that the 151 defendant is not entitled to raise any dividing wall as there cannot be any division of common amenities as per the Development Agreement-cum-General Power of Attorney. Accordingly, it is contended that the 151 defendant has no right to construct a dividing wall preventing the plaintiffs from making use of their right of ingress and egress through the common gates situated towards south and north which are existing on the southern side, and as the plaintiffs have been making use of the said entry from 2002 onwards, the balance of convenience lies in their favour, and therefore, if the 151 defendant is permitted to construct the dividing wall, the plaintiffs would suffer great hardship and irreparable loss, as they cannot make use of their flats without car parkings due to inaccessibility of the car parking areas in the cellar. It is stated that if the compound wall is allowed to be constructed, the staircase area also would be inaccessible and it would be impossible to go over to the flats belonging to the plaintiffs. Therefore, it is stated that the trial Court having rightly granted an interim injunction, directing to maintain status quo, erroneously limited the said injunction order for a period of three months alone so as to enable the plaintiffs to call upon their builder to provide an approach for the northern block parking area in the cellar. 9. Sri D. Prakash Reddy, learned senior counsel, appearing for the appellants/plaintiffs submits that the trial Court having rightly held that there is prima facie case and the balance of convenience in favour of the plaintiffs and admittedly the plaintiffs have been using the southern gates since last six years without any interruption, erroneously observed that the southern portion of the cellar undoubtedly is owned by the 151 defendant and that he is the real owner of the property, and there cannot be any injunction against the true owner of the property. However, if the 151 respondent/defendant is not restrained from making constructions separating the northern and southern blocks as per the development agreement, the plaintiffs who have been making use of the driveway all these years uninterruptedly would be left without approach to the northern block parking area. Therefore, the balance of convenience is in favour of the plaintiffs. The injunction was directed to be continued for a limited period of three months so as to enable the plaintiffs to call upon their builder to provide them an approach to the northern block since their sale deeds do not read that their approach to the northern block is through the southern block. 10. It is stated that the said observation of the Court below that the 151 defendant is the real owner of the half of the southern car parking area and that no injunction can be granted against the real owner is factually incorrect and unsustainable. 10. It is stated that the said observation of the Court below that the 151 defendant is the real owner of the half of the southern car parking area and that no injunction can be granted against the real owner is factually incorrect and unsustainable. It is stated that the common areas and amenities cannot be divided or partitioned as per the Development Agreement-cum-General Power of Attorney and merely because for the sake of convenience, the plaintiffs and the 5th defendant are parking their cars towards the northern side by making use of the same entrance for their ingress and egress and the 151 defendant is making use of the car parking area towards the southern side, it cannot be said that the 151 defendant is the exclusive owner of southern half area of the cellar portion and the plaintiffs and the 5th defendant are the owners of the remaining northern half area which is being used for their car parking. It is stated that right of ways, car parkings, staircase etc. are for the common usage and occupation. No one can claim exclusive right over the common areas and amenities. 11. Clauses-16 and 17 of EX.P1 Development Agreement-cum-General Power of Attorney read as follows: Clause-16: "The first party, the second party and the intending purchasers of apartment shall have no right to demand partition of the undivided share in the land at any time. But so enjoy the same in relation to the exclusive ownership of the floor areas/apartments being constructed by the second party for the beneficial use of the owners/ intending purchasers." Clause-17: "The first party and the intending purchasers shall use the common areas like corridors, stairs, passage, common facilities like electricity, water supply mains, sumps, drainage, sewerage and all other common amenities jointly & peacefully." 12. Sri N. Subba Reddy, learned counsel appearing for the Developers/Defendants 2 to 4 supports the case of the plaintiffs and submits that the construction was made with the knowledge of the 151 defendant-owner and as per the Development Agreement-cum General Power of Attorney, the southern portion of the super built up area was handed over to the 151 defendant and the remaining 50% of the super built up area, situated towards the northern side which fell to the share of the developers, was sold away in favour of the plaintiffs and the 5th defendant. In so far as the parking area is concerned, it is stated that each of the two plaintiffs and the 51h defendant has been provided parking area for two vehicles each which was alienated in their favour in the cellar area, and if the 151 defendant is permitted to construct the dividing wall, they will be deprived of their right to park their vehicles through the two gates provided towards the southern side. Therefore, the 151 defendant cannot be permitted to raise the dividing wall. It is further submitted that the 1st defendant cannot claim exclusive ownership over half of the parking area on the southern side cellar and the 151 defendant by his own conduct had acquiesced to the constructions and after the lapse of five years from the date of handing over the property, he cannot raise any dispute at this point of time. The action of the 1st respondent is nothing but an evil desire to cause an irreparable loss to the purchasers of the flats. If the 151 defendant is successful in his illegal attempts, the ingress and egress to the vehicles of the plaintiffs and the 51h defendant would not be available. Therefore, the 151 defendant is liable to be restrained from taking up the construction of the dividing wall. 13. It is also stated that the 151 defendant being a veteran leader occupying, high position and status, is expected to maintain good relations with neighbors and therefore, it may not be just and proper for him to prevent the plaintiffs and 51h defendant from making use of the driveways that are available for their ingress and egress. 14. It is the case of the 151 defendant that the Developers while making construction, have dug out the area in the northern side portion to carve out the cellar portion. The southern side area of the flat abutting the southern side road is to the level of the road whereas the northern side portion of the flat is having high gradient. favour of the plaintiffs and the 5th defendant. The southern side area of the flat abutting the southern side road is to the level of the road whereas the northern side portion of the flat is having high gradient. favour of the plaintiffs and the 5th defendant. In so far as the parking area is concerned, it is stated that each of the two plaintiffs and the 51h defendant has been provided parking area for two vehicles each which was alienated in their favour in the cellar area, and if the 151 defendant is permitted to construct the dividing wall, they will be deprived of their right to park their vehicles through the two gates provided towards the southern side. Therefore, the 151 defendant cannot be permitted to raise the dividing wall. It is further submitted that the 1st defendant cannot claim exclusive ownership over half of the parking area on the southern side cellar and the 151 defendant by his own conduct had acquiesced to the constructions and after the lapse of five years from the date of handing over the property, he cannot raise any dispute at this point of time. The action of the 1st respondent is nothing but an evil desire to cause an irreparable loss to the purchasers of the flats. If the 151 defendant is successful in his illegal attempts, the ingress and egress to the vehicles of the plaintiffs and the 5th defendant would not be available. Therefore, the 151 defendant is liable to be restrained from taking up the construction of the dividing wall. 13. It is also stated that the 151 defendant being a veteran leader occupying, high position and status, is expected to maintain good relations with neighbors and therefore, it may not be just and proper for him to prevent the plaintiffs and 5th defendant from making use of the driveways that are available for their ingress and egress. 14. It is the case of the 151 defendant that the Developers while making construction, have dug out the area in the northern side portion to carve out the cellar portion. The southern side area of the flat abutting the southern side road is to the level of the road whereas the northern side portion of the flat is having high gradient. The builder has dug the northern portion and made that portion to appear as a cellar. The southern side area of the flat abutting the southern side road is to the level of the road whereas the northern side portion of the flat is having high gradient. The builder has dug the northern portion and made that portion to appear as a cellar. The southern side constructed portion at the ground level is to be termed only as stilt floor. The southern parking portion cannot be called as a cellar. Originally, the 15t defendant was not residing in the property and merely because the plaintiffs and the 5th defendant have purchased their flats and parking their vehicles towards southern side, that does not mean that they have acquired any right against the 151 defendant with regard to the southern side parking area including the two gates for ingress and egress purpose. 15. Admittedly, the 151 defendant is the original owner and in fact, when the Municipal Corporation of Hyderabad objected for such digging of the cellar on the northern side, the builder/3rd defendant who is the power of attorney holder of the 151 defendant filed 0.S.1278/2001 on the file of the II Senior Civil Judge, City Civil Court, Hyderabad and sought for an interim injunction in I.A.744/2001, and the II Senior Civil Judge by order dated 09.08.2001 directed closure of the cellar by the builder and the builder stated that there was no intention to construct cellar and the said order has become final. The semi-finished construction was purchased by the plaintiffs and the 5th defendant and the purchasers are well aware about the Development Agreement-cum General Power of Attorney, according to which the 151 defendant alone shall have exclusive rights over the 50% area on the southern side. It is further stated that an alternative entry can be provided from the western side road to the northern area parking. In fact, the cellar is required to be closed and filled as per the orders passed in I.A.744/2001 in O.S.1278/2001 on the file of the II Senior Civil Judge, City Civil Court, Hyderabad. Therefore, the plaintiffs cannot stop such proceedings for closure of that portion. 16. It is further stated that as per the terms and conditions of the Development Agreement-cum-General Power of Attorney, there is a provision for compound wall for the southern block and also separate entry and exit for south block and therefore, none else in the southern (sic. Therefore, the plaintiffs cannot stop such proceedings for closure of that portion. 16. It is further stated that as per the terms and conditions of the Development Agreement-cum-General Power of Attorney, there is a provision for compound wall for the southern block and also separate entry and exit for south block and therefore, none else in the southern (sic. northern) block would be entitled to use the entry from the south block. The provision for the separate compound wall is very specific and clear. Once the compound wall is constructed, it would naturally separate the parking areas of two blocks. Clause-19 of the registered Development Agreement-cum-General Power of Attorney provides that south block should have separate entry and exit for cars along with a compound wall. The Court below granted an ex parte injunction order which was extended from time to time and by the impugned order, the injunction was limited for a further period of three months so as to enable the plaintiffs to approach the builders to provide them an approach for the northern block parking area. 17. It is stated that the 1st defendant has not started making any preparation for construction except dumping certain material. It is further stated that merely because the plaintiffs have been taking their vehicles through the southern block gates without making their own arrangements from their portion does not mean that they are entitled to any equities or continuance of injunction order. It is stated that there is no prima facie case and balance of convenience in favour of the plaintiffs and no irreparable loss or injury would be caused to them if injunction is not granted. 18. It is stated that the 151 defendant is the Chairman of A.P. Legislative Council and the police authorities are insisting to make necessary security arrangements at the site and to provide northern side boundary wall and to re-fix iron gate in the southern wall abutting the southern side main road, opposite to Hampy Restaurant which is running till midnight attracting the people. Therefore, it is required to make proper security arrangements and adequate infrastructure. It is further stated that the working plans signed by the builder show the entry to the northern block parking from the southern side road. Therefore, it is required to make proper security arrangements and adequate infrastructure. It is further stated that the working plans signed by the builder show the entry to the northern block parking from the southern side road. The plaintiffs are bound by the working plans accepted by the builder and the original owner and as per the working plans, provision has to be made for entry into the parking area of the northern block from the western road. Therefore, the plaintiffs are not entitled to ask for any injunction in respect of the cellar portion or any other areas of the building like staircase, terrace portion of the building etc. situated towards his half share area of the southern side. 19. Sri P.P. Rao, learned senior counsel, appearing for the 1st defendant submits that neither EX.P1 Development Agreement-cum General Power of Attorney dated 19.10.2000 nor Exs.P3 and P4 sale deeds dated 24.01.2002 and 24.07.2002 contain any mention of plaintiffs' right to use the driveway from the southern gate through the southern portion/southern block of the plot to the parking areas in the northern portion. The builders who are General Power of Attorney holders of the 1st defendant could not have conferred a larger right on the purchasers of the flats than what they had in terms of the Development Agreement-cum-General Power of Attorney. Annexure-1 of EX.P1 Development Agreement-cum-General Power of Attorney clearly stipulates that south block should have separate entry and exit for cars along with compound wall. Clause-3(B) of EX.P1 Development Agreement-cum-General Power of Attorney requires marking of respective shares in the working plan and the statement to be signed by the 1st defendant-owner and the Developers defendants 2 to 4 before commencing the construction work and the same shall be deemed to form part of the Development Agreement-cum-General Power of Attorney. Working plan duly signed by the defendants 1 and 3 shows that one gate on the southern side block and another gate on the western side of the south block and third gate on the western side of the north block and the said working plan is described as "parking floor plan". The working plans of the ground, first and second floors tally with the plans in the sale deeds obtained by the plaintiffs. The working plans of the ground, first and second floors tally with the plans in the sale deeds obtained by the plaintiffs. The perusal of the sale deeds goes to show that the purchasers have verified the title documents, sanctioned plan, designs and specifications with reference to the Development Agreement-cum-General Power of Attorney and also the MCH sanctioned plan. Thus, the sale deeds go to show that the purchasers are fully aware of the stipulation made in the Annexure to the Development Agreement-cum-General Power of Attorney with regard to the provision of separate entry and exit for cars along with compound wall towards the southern block and there is no right of passage through the south block gate on the southern side or on the western side in that block to park in the northern block cellar. Therefore, it is stated that the findings of the trial Court that the plaintiffs do not have any such right as claimed by them is correct. That is the reason why the Civil Court limited the earlier injunction granted for three more months so as to enable them to approach the builder for making a provision for car parking for the northern block as admittedly, the plaintiffs and the 5th defendant were using the southern gate since about six years. 20. The learned senior counsel further contended that the plaintiffs do not acquire any right of easement, as such right can be claimed if they have exercised the right for over a period of 20 years as per Sec.15 of the Easements Act, 1882. It is stated that there is no pleading in the plaint with regard to the easement of necessity and merely because the plaintiffs were using the passage without any objection by the 1st defendant for the last six years, it cannot be said that they have any vested right, but they are only bare licencees without any interest in the property and such licence is revocable at the will of the licensor and the licencee cannot seek an injunction against the licensor who is the owner. Even a person in long continuous possession, cannot seek injunction against the true owner. In support of the said contention, the learned senior counsel relied upon the judgments of the Apex Court in Pratap Roy N. Kothari v. John Briganzal para-11 and Mahadev Sevalaran v. Pune Municipal Corporation para-g. 21. Even a person in long continuous possession, cannot seek injunction against the true owner. In support of the said contention, the learned senior counsel relied upon the judgments of the Apex Court in Pratap Roy N. Kothari v. John Briganzal para-11 and Mahadev Sevalaran v. Pune Municipal Corporation para-g. 21. It is further contended that even assuming that the averments made in the plaint could be construed as a plea of easement of necessity, the plaintiffs have access to their flats through the gate provided on the western side, and therefore, it is not a case of absolute necessity at all. Parking area constitutes a small and minor portion of the flats sold. It is incidental to the property, which is the subject matter of the sale deed. Therefore, when there is no impediment to the enjoyment of the flat itself through the western gate, it is not a case of absolute necessity, hence there can be no easement of necessity. Therefore, viewed from any angle, there is no prima facie case in favour of the plaintiffs for granting an injunction restraining the true owner from constructing a compound wall or raising any other construction in his portion of the land in the south block. 22. The learned senior counsel for the 1st defendant further contended that a person seeking injunction should establish his legal right. Unless there is a legal right, injunction cannot be granted. Mere hardship is not enough for granting injunction. There has to be substantive right, which requires protection. Injunction can be granted when there is no other remedy to protect against apprehended injury. 23. The plaintiffs at the most are bare licencees without any interest or right in the property, which is the subject matter of the appeal. In the absence of evidence to show the grant of right by the owner, it will be a case of bare licence to use the passage without any interest being created. The status of a bare licencee after determination of the licence is only that of a trespasser. He is not entitled to any injunction against the true owner. However, there is no plea of easement of necessity and there is no absolute necessity because of availability of access from the western side to the plaintiffs' flats. For easement of necessity, it must be shown that there is no access to the property from any side. He is not entitled to any injunction against the true owner. However, there is no plea of easement of necessity and there is no absolute necessity because of availability of access from the western side to the plaintiffs' flats. For easement of necessity, it must be shown that there is no access to the property from any side. It must be absolute necessity, not merely a convenient mode of enjoyment of the property. For claiming easement of necessity, the land should be surrounded on all sides by the lands of the third persons and the only way of access is over the contiguous land of the grantor. A person who builds a house on a plot that has no openings on the main road cannot claim easement of necessity over his neighbours' land. The easement of necessity implies absolute necessity. If another door can be opened, there cannot be any right of easement. If the plaintiffs can construct another access, it is not a case of easement of necessity. In support of his contention, the learned senior counsel relied on various judgments of the Apex Court and High Courts. 24. It is further argued that the General Power of Attorney Holder who acts In excess of his authority cannot bind the principal. The Power of Attorney Holder must be construed strictly and there cannot be any implied agency. A person dealing with a power of attorney holder should ascertain himself the extent of authority. If he fails to see whether the transaction was warranted by the power of attorney, the principal cannot be bound by the transaction if it is in excess of authority. It is further contended that the construction of the cellar itself is illegal being without the sanction by the Municipal Corporation. Therefore, the plaintiffs cannot claim injunction against the owner of the property. It is further contended that pursuant to the orders of the II Senior Civil Judge, City Civil Court, Hyderabad dated 09.08.2001 in 1.A.744/2001 in 0.S.1278/2001, the 3rd defendant-General Power of Attorney Holder of the 151 defendant has given an undertaking that he would close the natural cellar, and therefore, he would be entitled to construct the building as per the sanctioned plan and he has no right to construct the cellar. The General Power of Attorney Holder did not comply with this order. The General Power of Attorney Holder did not comply with this order. If a transaction is illegal and both sides are responsible for it, the Court will not assist one of them to dispossess another, as per the judgment of the Supreme Court in the case of Shrinivas Kini v.RathulaP para-11. 25. The case in Shrinivas Kini v. Rathulal relates to eviction proceedings initiated by the landlord on the ground that the tenant was not authorized to sublet the premises under Sec.15 of the Bombay Hotel and Lodging House Rates Control Act, 1947 and therefore, the sub-tenant is not entitled for enforcement of the contract entered into with the tenant. However, as there was no plea of waiver by the landlord and the waiver is not a pure question of law, but it is a mixed question of law and fact, which was neither raised nor conside: ed by the Courts below, the eviction of sub-lessee was upheld by the Apex Court. 26. We are of the opinion that unless the trial is commenced and evidence is adduced, the ratio laid down by the Apex Court cannot be made applicable at this juncture, in view of the fact that the Developers/defendants 2 to 4 and the plaintiffs are taking a plea of waiver with regard to the illegal constructions said to have been made and that the 151 defendant acquiesced the construction of the complex in deviation of the sanctioned plan. 27. This Court by order dated 26.06.2008 in CMP.1134/2008, directed that the injunction granted by the Court below shall be continued without making any reference to the impugned order, and at that time the learned counsel appearing for the 151 defendant undertook to produce the sanctioned plan approved by the Municipal Corporation for construction of flats in the suit schedule property. Pursuant to the said order, the 1st defendant addressed a letter dated 07.07.2008 to the concerned Assistant City Planner requesting him to furnish a copy of the approved building plan or revised one for the plot No.275/A, MLA colony, Road No.12, Banjara Hills submitted by the developers who are the General Power of Attorney Holders of the 151 defendant. Pursuant to the said order, the 1st defendant addressed a letter dated 07.07.2008 to the concerned Assistant City Planner requesting him to furnish a copy of the approved building plan or revised one for the plot No.275/A, MLA colony, Road No.12, Banjara Hills submitted by the developers who are the General Power of Attorney Holders of the 151 defendant. The concerned Assistant City Planner by letter dated 09.07.2008 informed the 151 defendant that subsequent to his application dated 27.06.2000, no revised or fresh building plan was submitted by the 3'd or 41h defendant or by anybody for construction on the said plot. A copy of the sanctioned plan was also produced by the 151 defendant which was sanctioned vide File NO.1 07/0pen/8/2000 and Permit No.169/30, dated 03.11.2000, according to which, permission was granted for construction of residential building consisting of ground, first and second floors, having three bed rooms, drawing and kitchen on each floor and there is no sanction for construction of the cellar for the purpose of car parking. Thus, even according to the 151 defendant, the entire building was constructed in deviation of the sanctioned plan without there being any revised sanctioned plan for construction of the cellar and three floors above the cellar making independent flats. If the building is constructed as per the sanctioned plan, it is not possible to divide the northern and southern blocks for their residential purposes. 28. The perusal of the original sanctioned plan goes to show that there is a road towards the south and north. There is a natural slope towards the north. Two gates were shown, one towards the south and another towards the north. But, however, it is pertinent to note that the entire building has been constructed in total violation of the sanctioned plan and there was no permission for the construction of the cellar. There is a natural slope towards the north. Two gates were shown, one towards the south and another towards the north. But, however, it is pertinent to note that the entire building has been constructed in total violation of the sanctioned plan and there was no permission for the construction of the cellar. That is the reason why when the cellar was sought to be made for the purpose of car parking, the Municipal Corporation objected, the 151 defendant represented by General Power of Attorney Holder/3rd defendant filed suit being O.S.1278/2001 along with an interlocutory application in I.A.744/2001 on the file of the II Senior Civil Judge, City Civil Court, Hyderabad, seeking an interim injunction restraining the Municipal Corporation from interfering or demolishing the schedule property and the Civil Court by order dated 09.08.2001, ordered that the 15t defendant shall close the cellar that was formed on account of rocky formation as alleged by him, and on such closure, the 151 defendant-owner is entitled to construct the building as per the sanctioned plan. Whether the building was constructed with the knowledge, consent and connivance of the 151 defendant by his power of attorney holders-defendants 2 to 4 or not is the matter to be decided in the main suit. The fact remains that there is no sanction for the construction of the cellar and for the present form of the existing building. 29. On 08.10.2007, the Court below granted an interim injunction and on 04.03.2008 the trial Court appointed an Advocate Commissioner, and the Advocate Commissioner submitted his report dated 10.03.2008 stating that two gates i.e. gate Nos.1 and 2 for entry of the cars towards the southern block cellar are existing and third gate having 6' 9" is available on the western side of the property just opposite to the staircase and the said third gate is convenient only for ingress and egress of the pedestrians. On the western side of the property, the road is with steep slope from north to south. The flats of the plaintiffs and the defendant NO.5 are situated on the northern side block, and there are no separate entry or exit points in the northern block of the cellar. Northern side of the property is completely closed and there is no open space available in between the schedule property and the property of the neighbours. 30. The flats of the plaintiffs and the defendant NO.5 are situated on the northern side block, and there are no separate entry or exit points in the northern block of the cellar. Northern side of the property is completely closed and there is no open space available in between the schedule property and the property of the neighbours. 30. Admittedly, there is no approach road or independent entry to enter into the northern block cellar and the plaintiffs and the 5th defendant have been making use of the two gates available towards the south and north of the southern block for the ingress and egress of the cars to park them in the northern side. If the wall is constructed separating the northern and southern block, dividing the cellar into two equal portions, there will be no entry to take their cars to the cellar parking area of the northern block. 31. The point that arises for consideration is whether EX.P1 Development Agreementcum-General Power of Attorney provides for any division or partition of the cellar and common areas. 32. The learned counsel appearing for the 1st defendant heavily relies on the specifications in Annexure-1 relating to the common areas. According to him, the south. block should have separate entry and exit for cars along with compound wait On the other hand, the learned counsel appearing for the plaintiffs submits that the clause relates to the common areas of the entire building and the south block should alone have the separate entry and exit for cars along with compound wall. The compound wall means the compound wall of the entire building and south block cannot be divided by constructing a separate compound wall. We are of the opinion that the said rival contentions have to be considered by the trial Court only after adducing evidence by both the parties. 33. The learned counsel for the plaintiffs seriously disputed with regard to the genuineness and validity of the working plans said to have been signed by the 3rd defendant. It is stated that the copy of the working plan filed along with material papers by the 1st defendant is without any date and without any description separating the parking area to be made use by the owner and the developers. It is stated that the copy of the working plan filed along with material papers by the 1st defendant is without any date and without any description separating the parking area to be made use by the owner and the developers. It is stated that according to the copy of the said working plan, the entire staircase itself is liable to be divided which cannot be permitted as per the EX.P1 Development Agreement-cum-General Power of Attorney. These disputed questions of fact cannot be decided unless evidence is adduced in support of their contentions. 34. If there is any prima facie case and balance of convenience in favour of plaintiffs, they are entitled for interim injunction. With regard to prima facie case, admittedly, there is a Development Agreement-cum-General Power of Attorney between the owner and the Developers. As per EX.P1 Development Agreement-cum General Power of Attorney, no doubt, the owner is entitled to 50% of actual built up area towards south in the building complex and the developers are entitled to the remaining 50% of the built up area towards north. Nowhere it is stated in EX.P1 Development Agreement-cum-General Power of Attorney that the common amenities including the parking area are liable to be partitioned or divided. Whether the working plan formed part of EX.P1 Development Agreement-cum-General Power of Attorney or not is a matter yet to be decided during course of trial. Therefore, We are of the opinion that the trial Court is not right in recording a finding to the effect that the 1st defendant is the real owner of the southern portion of the cellar and that no injunction can be granted against him. We are also of the opinion that the trial Court having rightly observed that the balance of convenience is in favour of the plaintiffs, erred in limiting the injunction to be continued for further period of three months alone. After expiry of three months, if the 1 sl defendant is permitted to construct any dividing wall dividing the southern side block, the plaintiffs will be deprived of their right to make use of their flats, as the entry of pedestrians and their cars through the southern side cellar portion to the parking areas in the northern portion will be completely blocked. It is further stated that there is no possibility of opening a third or separate gate towards the northern side road of the northern block. The plaintiffs have established the prima facie case and balance of convenience is in their favour and unless injunction is granted, they will suffer great hardship and irreparable injury, as they cannot make use of the car parking area purchased/provided for them. 35. As per Clause-17 of EX.P1 Development Agreement-cum-General Power of Attorney, the common areas like corridors, stairs, passage, common facilities like electricity, water supply mains, sumps, drainage, sewerage and all other common amenities shall be used jointly and peacefully by the owner and the Developers as well as the intending purchasers. As per Clause-16 of EX.P1 Development Agreement cum General Power of Attorney, the owner and the developers as well as the intending purchasers of the apartment shall have no right to demand partition of the undivided share in the land at any time, but so enjoy the same in relation to the exclusive ownership of the floor areas/apartments being constructed by the developers for the beneficial use of the owners/intending purchasers. 36. In view of the undisputed fact with regard to the Development Agreement-cum General Power of Attorney executed by the 1st defendant, authorizing to construct a residential complex and having allowed the developers to construct the entire structures including the cellar and as admittedly the developers and the owner are the beneficiaries of illegal construction of the entire building including the cellar, we are of the opinion that the plaintiffs have established prima facie case and balance of convenience in their favour and if injunction is not granted, they will suffer great hardship and irreparable injury and they will be deprived of their existing right to make use of their flats by entering through the southern side entry of cellar portion for their car parking area on the northern side. 37. For the aforesaid reasons, we allow the appeal, modifying the impugned order dated 31.03.2008 to the effect that the injunction order shall be continued pending disposal of the suit without any limitation. The Court below is directed to dispose of the suit as expeditiously as possible on priority basis without being influenced by any of the observations made herein above. No order as to costs.