S.A. Nos. 478 of 2011, 972 of 2013 and C.M.P. No. 2094 of 2017. Case: P. Balaraman Vs Iswaryam Apartment Owners Association. High Court of Madras (India)
| Case Number | S.A. Nos. 478 of 2011, 972 of 2013 and C.M.P. No. 2094 of 2017 |
| Counsel | For Appellant: M. Rajavadivelu, Adv. and For Respondents: G. Ashokapathy for Pass Associates |
| Judges | T. Ravindran, J. |
| Issue | Civil Procedure Code |
| Judgement Date | March 23, 2017 |
| Court | High Court of Madras (India) |
Judgment:
T. Ravindran, J.
S.A. No. 478 of 2011
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Challenge in this second appeal is made by the plaintiff against the judgment and decree dated 25.01.2010 made in A.S. No. 42 of 2009 on the file of the III Additional City Civil Court, Chennai, partly reversing the judgment and decree dated 01.12.2008 made in O.S. No. 4966 of 2004 on the file of the VII Assistant City Civil Court, Chennai.
S.A. No. 972 of 2013
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Challenge in this second appeal is made by the defendant against the judgment and decree dated 25.01.2010 made in A.S. No. 42 of 2009 on the file of the III Additional City Civil Court, Chennai, partly reversing the judgment and decree dated 01.12.2008 made in O.S. No. 4966 of 2004 on the file of the VII Assistant City Civil Court, Chennai.
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The second appeals have been admitted and the following substantial question of law is formulated for consideration in the second appeals:-
Whether the judgment and decree of the first appellate court are misdirected against the evidence on record and based upon the perverse findings and conclusions?
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The suit has been laid by the plaintiff, with reference to a passage situated to the South of the plaintiff's property and the North of the apartments belonging to the defendant's association, for declaration, permanent injunction and mandatory injunction.
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A reading of the plaint would go to show that as regards the disputed passage, the plaintiff has claimed both title as well as easementary right. It has not been established by the plaintiff as to how he would be entitled to claim right over the disputed passage both on the grounds of title as well as on the ground of easementary right and this has not been properly explained by the plaintiff. However, as seen from the prayer sought for by the plaintiff in the suit, it is found that the plaintiff seems to have claimed the relief over the disputed passage based upon an agreement of compromise dated 27.11.1997 marked as Ex. A5. Therefore, it could be seen that as per the relief prayed for, the plaintiff has sought right over the disputed common passage only based upon Ex. A5 agreement of compromise.
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However, as adverted to supra, in the plaint, the plaintiff has laid a claim over the disputed passage both on the grounds of title and easement. It is found that on the basis of the case of the parties and the evidence adduced in the matter, originally the disputed passage as well as the adjoining properties thereto was owned by Kanniah and thereafter, the same had been divided by Kanniah and his sons by way of a partition deed dated 19.05.1956, which has been marked as Ex. B3. Therefore, it could be seen that originally the disputed passage as well as the adjoining properties had been dealt with in the partition amongst the owners thereof under Ex. B3 and it is the specific case of the defendant that the share allotted to Sundararama Reddiar, the predecessor in title of the defendant, including the disputed passage. On the other hand, according to the plaintiff, in the share allotted to Sankariah Reddiar, his predecessor in title, the disputed passage, had been included. As such, according to the plaintiff, Sankariah Reddiar, while conveying the property to Santhammal, the predecessor in interest of the plaintiff under Ex. B4, also conveyed the right over the passage in question, in dispute and when the plaintiff acquired the property from Santhammal under Ex. A1, the same had been conveyed by her in favour of the plaintiff. However, when according to the plaintiff, he claims title over...
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