A.S. No. 827 of 2012 and M.P. No. 1 of 2012. Case: N.K. Santharaman Vs N.S. Ramila and Ors.. High Court of Madras (India)
| Case Number | A.S. No. 827 of 2012 and M.P. No. 1 of 2012 |
| Counsel | For Appellant: R. Thiyagarajan, Senior Counsel for K. Kumudha, Adv. and For Respondents: R. Sankaranarayanan Senior Counsel for K. Sumathi, Adv. |
| Judges | N. Sathish Kumar, J. |
| Issue | Civil Procedure Code |
| Judgement Date | April 04, 2017 |
| Court | High Court of Madras (India) |
Judgment:
N. Sathish Kumar, J.
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The Unsuccessful plaintiff in O.S. No. 2483 of 2011, on the file of the learned Additional District and Sessions Judge, Fast Track Court III, Chennai, is the appellant herein.
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For the sake of convenience, the parties are referred to as per their ranking before the trial Court.
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The plaintiff filed a suit in O.S. No. 2483 of 2011, before the learned Additional District and Sessions Judge, Third Fast Track Court, Chennai, for declaration declaring that the plaintiff is entitled to schedule "B" property morefully described in the plaint and also for permanent injunction restraining the defendants 1 to 4 from carrying out any construction in the suit property.
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After contest, the suit was dismissed.
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The brief facts of the case of the plaintiff are as follows:
(i) Originally, the suit property was purchased by late N. Kuppusamy Iyer, father of the plaintiff. By virtue of family arrangement dated 25.09.1974, the properties had been divided among the family members of late Kuppusamy Iyer. Accordingly, the property bearing Door No. 85, South Usman Road, T. Nagar, Chennai - 600 017 was allotted to the mother of the plaintiff. She bequeathed the said property to one N.K. Thulasiraman, the defendants 1 to 4 and the plaintiff's sisters, viz., K.S. Meena, T.R. Sabitha, A.C.A. Yamuna and L.N.V. Simha Chandran, husband of late Durga and Daughter of late Kuppusamy Iyer.
(ii) When the matter stood thus, the plaintiff and his two sons had filed a suit in O.S. No. 285/1989 on the file of the Sub Court, Madurai, for partitioning the plaintiff's share of 4/21 share in the suit properties and also obtained preliminary decree. As against the said preliminary decree, the plaintiff herein had filed a suit in A.S. No. 559 of 1994. Similarly, the defendants 1 to 4 had also jointly filed A.S. No. 385 of 1994. Likewise, K.S. Meera and others jointly filed A.S. No. 1216 of 1994 and the above said Thulasiraman filed A.S. No. 539 of 1994. When the aforesaid appeals were taken up together for disposal, the parties themselves came forward to settle the dispute. As a result, a compromise memo was filed and on the basis of the same, the appeals were disposed of on 03.10.2001.
(iii) According to the plaintiff, the property, bearing Old No. 23, Murugesan Road, T. Nagar, Chennai - 600 017, measuring an extent of 9600 sq.ft., has been divided into three shares between the plaintiff and his two brothers, viz., N.K. Seetharam and N.K. Thulasiraman. At the time of family arrangement, it was agreed to divide the property equally. Since the building was constructed in the middle portion belongs to the defendants 1 to 4 herein, the eastern portion was allotted to N.K. Thulasiram and Western portion was allotted to the plaintiff herein. At the time of disposal of the aforesaid first appeals, parties have agreed to divide the properties equally between the plaintiff and the defendants 1 to 4 and N.K. Thulasiraman. Even after the disposal of the aforesaid appeals, parties had several rounds of discussions for diving the property equally. The defendants 1 to 4 had agreed for such proposal and promised the plaintiff that as the sale negotiation in respect of the property bearing Door No. 85, South Usman Road, T. Nagar, Chennai - 17 was going on, after the disposal of the said property, the property in respect of Old No. 23, Murugesan Road, T. Nagar, Chennai 600 017 has to be divided equally. On such understanding the plaintiff had signed the Sale Deed in respect of the aforesaid Usman Road property. Even thereafter, the plaintiff had discussion with the defendants 1 to 4 with the help of sisters, but the defendants 1 to 4 refused to divide the property equally. It is stated that though the defendants all along promised to give 640 sq.ft, at the time of demolition of the existing superstructure, they refused to give the same. Similarly, the property situate at Old Door No. 23, Murugesan Road, T. Nagar, Chennai - 600 017 has to be divided equally between three brothers, viz., the plaintiff, N.K. Thulasira and the defendants 1 to 4 herein.
(iv) According to the plaintiff, the entire property measuring 9600 sq.ft have to be divided equally between three brothers, but unfortunately, the same has not been done so. Instead of giving 40 feet on the northern side, the plaintiff was given only 32 feet. On the other hand, the defendants 1 to 4 are having 48 ft., on the northern side though legally they are entitled only 40 ft. Similarly, the defendants 1 to 4 are having 51 feet on the rear side whereas the plaintiff is having only 34 feet on the rear side i.e. on the southern side. Therefore, the plaintiff is entitled 8 feet on the North and 6 ft on the south 80 ft on East and West. Similarly, the defendants 1 to 4 are entitled to have similar dimension in all the four sides as mentioned above. Since the superstructure was on the middle portion of the entire suit property measuring 9600 sq.ft. (120 x80), it was not equally divided at the time of entering the family arrangement. However, all the parties have agreed to divide the property equally. The claim of the plaintiff is quite reasonable, justifiable and legally sustainable. On equity, the defendants 1 to 4 are bound to give schedule "B" to the plaintiff. Since the defendants 1 to 4 are taking steps to demolish the existing superstructure, the plaintiff has filed the present suit for declaration and permanent injunction.
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The brief averments of the written statement filed by the defendants are as...
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