C.V. Ramakrishan vs Dr. V. Ramakrishna Rao and Others

S. Ashok Kumar, J.—This matter is taken up for hearing at the instance of the learned Counsel for the counsel appearing on either side, on being mentioned.

This Court on 26.10.2006 disposed of the Civil Revision Petition directing the learned XI Assistant Judge, City Civil Court, Chennai to dispose of the I.A.No:11016 of 2004 in O.S.No:3179 of 2004, within a period of three weeks from the date of receipt of a copy of the said order by strictly adhering to Order 39 Rule 3(A) CPC. But inspite of such a direction, no order has been passed by the trial court. Therefore, the said fact was mentioned before this Court and both the learned Counsel prayed this Court to decide the issue in this revision itself. Accordingly both sides were heard. This Court suggested to settle the issue amicably as the parties are adjacent land owners. But, inspite of several opportunities for compromise, the matter could not be compromised. Hence the following order is passed on considering the merits of the case.

The respondents 1 to 7 herein have filed the suit in O.S.NO.3179 of 2004 against the revision petitioner and two others for permanent injunction restraining the defendants or their men from in any manner seeking to interfere with the peaceful possession and enjoyment of the C Schedule property and permanent injunction restraining the defendants and their men from using the C Schedule property. Ad interim injunction was granted in the Interlocutory application and in spite of fling counter, the matter was adjourned from time to time.

Originally, the entire A,B,C of the plaint Schedule properties in an extent of 8 grounds and 1053 sq.ft., belonged to the petitioner and two other defendants in the suit. From out of the whole extent of the property, the rear portion of the said property described as B Schedule of property in an extent of 4 grounds and 1200 sq.,ft.,was carved out and sold under various sale deeds to the plaintiffs. Specific extents were also sold by the defendants herein and the plaintiffs have purchased the properties either from the defendants or from the persons who have purchased the specific extents from the defendants under various sale deeds.

The subject matter of the suit is the C schedule mentioned property which is an 14 feet width passage leading from Venkatachala Mudali Street, Mylapore to the plaintiff''s property. It is a pathway to the A and B Schedule of properties. As already stated a portion of A Schedule property i.e, 4 grounds and 1200 sq.ft., was sold to the first plaintiff. Therefore, what is remaining for the petitioner is only "A"-"B" and "C" schedule of properties. The pathway is a common pathway 14 feet width running to a length of about 157 feet rendering access to the schedule B property from Venkatachala Mudali Street totally measuring an extent of 2,200 sq.ft.,

The contention of the plaintiffs is that the C Schedule property is absolutely belonging to them and other purchasers, the defendants, petitioner herein has no right over the said C Schedule of property. In the open court, it was suggested on behalf of the petitioner/defendant herein that it is a common pathway, the plaintiffs and other purchasers may be permitted to park 7 cars and the petitioner/defendants to park 3 cars. But, it was not agreeable for the plaintiffs, respondents herein. On the other hand, the respondents/plaintiffs suggested that some portions of the old building of the petitioner which is going to be demolished is abutting to some extent in the C Schedule of properties and that should be demolished and about 5 feet to the entire length of the pathway of the respondents property should be left open for, so that the cars can be turned. On the their hand, learned Counsel for the petitioner would submit that he is going to construct flats and if after demolition of the existing old building, a compound wall is going to be constructed after giving 14 feet of clear width for passage and if the compound wall is not constructed, stray dogs and animals will enter into the premises and it is not safe for the purchasers of the flats which are going to be constructed and if there is no compound wall, the value of the property may be diminished and no buyer will come forward to purchase the flats. It is also contended that if compound wall is not constructed as per specification, the CMDA will not give approval for the flats.

Both the parties did not agree for the proposed car parking and the petitioner/defendant intends to construct the compound wall to the entire extent within his property. The contention of the plaintiffs is that the C Schedule property is absolutely belonging to them and other purchasers, whereas, the contention of the petitioner/defendant is that it is a common pathway set apart for convenient enjoyment as pathway for all the co owners including the petitioner/defendant.

At this juncture, it is worth to peruse the title deeds relied upon by both sides. Clause 7 and 8 of the sale deed reads as follows:

The purchaser as a matter of necessity shall and will enjoy the property conveyed hereunder consistent with the rights and interest of the owners o the other undivided shares in the Schedule B and C properties and to use all sewers, drains or any part thereof in common with the said co-owners and others and to permit freely to run the water courses, now in or upon or hereafter to be created or installed or any part thereof in common with the said co-owners and others and to permit freely to run and pass water and soil through or along the same or any of them and shall pay the proportionate share of the monthly and/or periodical charges and contributions, connected with the common amenities like water taxes, electricity charges of pumpset, lighting, watchman salary, the cost of repairing and maintaining all such common items like, sewers, drains water courses, pumpsets, compound wall, common lighting, roads and passages and the decision of the majority of the owners will be final and binding on the owners.

The purchaser and the other co-owners of the other undivided share shall have and hold an absolute and uninterrupted right title and interest in and over the approach pathway rendering ingress and egress from the Venkatachala Mudali Street to the entire Schedule B property measuring 14'' in width to a length of 157'' more particularly described in Schedule C hereto and marked as plot No. C and delineated and coloured rend in the sketch attached hereto.

Therefore, a perusal of Clauses 7 and 8 of the Sale Deed would show that the C schedule of property is a common pathway to be enjoyed by all the co-owners and others and to permit freely to run the water courses, now in or upon or hereafter to be created or installed or any part thereof in common with the said co-owners and others and to permit freely to run and pass water and soil through or along the same or any of them and shall pay the proportionate share of the monthly and/or periodical charges and contributions, connected with the common amenities like water taxes, electricity charges of pumpset, lighting, watchman salary, the cost of repairing and maintaining all such common items like, sewers, drains water courses, pumpsets, compound wall, common lighting, roads and passages and the decision of the majority of the owners will be final and binding on the owners. Further, the purchaser and the other co-owners of the other undivided share shall have and hold an absolute and uninterrupted right title and interest in and over the approach pathway rendering ingress and egress from the Venkatachala Mudali Street to the entire Schedule B property measuring 14'' in width to a length of 157'', more particularly described as C in the sale deed. The above description would only show that all the co-owners should enjoy the common pathway and should contribute for the maintenance of the said pathway for all the water tax, electricity, etc.,

Clause 9 of the sale deed is more important. It reads as follows:

The portion marked as common passage in the plan annexed, hereto shall be used by all the co-owners of the Schedule B and C properties including the purchaser herein as a pathway and no structure of any kind shall be erected by any one in and over the common passage and the same shall be left free, undisturbed, unobstructed and open to sky and no materials of any kind shall be kept or stored in and over the same by any one.

From the above recital it is clear that if the contention of the plaintiffs/respondents is that the they are the absolute owners of the C Schedule of property, then there is no necessity to introduce Clause 9 in the sale deed. If the contention of the plaintiffs/ respondents herein is that the pathway is conveyed to them absolutely, then Clause 9 in the sale deed becomes unnecessary. By introducing Clause 9, the intention of the parties is that the pathway should be enjoyed by all the co-owners including the plaintiffs and defendants. One co-owner cannot pray for an injunction to restrain another co-owner. Therefore, the 14 feet pathway has to be maintained for ingress and egress for all the parties to have free access to Venkatachala Mudali Street. Therefore, both the plaintiffs and the defendants have no absolute title or right over the said pathway and nobody should be prevented by others from using the pathway for having access through the said pathway. Under these circumstances, the order of ad interim injunction granted in I.A. No. 11016 of 2004 in O.S. No. 3179 of 2004 by the learned XI Assistant judge, City Civil Court, Chennai, is liable to be interfered with.

In the result, the CRP is allowed and the order of ad interim injunction granted in I.A. No. 11016 of 2004 in O.S. No. 3179 of 2004 by the learned XI Assistant judge, City Civil Court, Chennai, is set aside. The petitioner is directed to demolish that portion of his building which is abutting into the passage so that there will be a clear width of 14 feet throughout the length of the passage. Time granted for such demolition is 3 months subject to getting demolition permission from the statutory authorities. Consequently, connected Miscellaneous Petition is closed. No costs.