IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26.08.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL O.S.A.NOs.28 of 2004, 82 of 2005 and 267 of 2008 and C.M.P.NOS.1487 OF 2004, 7433 OF 2005, 1463 OF 2007 19012 AND 19013 OF 2005 O.S.A.NO.28 OF 2004: Lakshya Apartments Owners Association, rep. by its President, Shanti Kumar 12-13, Tank Bund Road, Nungambakkam, Madras-600 034 .. Appellant (Plaintiff) Vs. 1.T.Kanniyarani 2.A.Amudha 3.Mahalakshmi Builders, rep. by its Proprietor, 59, P.S.Sivasamy Salai, Mylapore, Madras-600 004. 4.Madras Metropolitan Development Authority, rep. by its Member Secretary, 8, Gandhi Irwin Road, Egmore, Madras-600 008. .. Respondents (Defendants) O.S.A.NO.82 OF 2005: Lakshya Apartment Owners' Association rep. by its President, Mahalakshmi Flats, 13, Tank Bund Road, Nungambakkam, Chennai-600 034. .. Appellant(48th Defendant) https://hcservices.ecourts.gov.in/hcservices/ Vs. 1.T.Kanniyarani 2.A.Amudha 3.T.V.Jayaraman 4.S.Soundarajan 5.M.Shivarajan 6.C.Ravi 7.S.Latha 8.V.Sumathi 9.Shakuntala S.Nikam 10.Rajkumar Achariya 11.Josephine Jenifer V.Rayan 12.Densing Fernando 13.K.Sivasankaran 14.J.T.Nirmal Kumar 15.G.Lakshminarayanan 16.Alston Rozario 17.J.Gordon 18.I.E.Daniel 19.N.Selvakumar 20.Suriya Selvaraj 21.M.S.Rapheal 22.Saraswathi 23.S.S.Raj 24.Ezhilselvi Fernando 25.Meenakumari Swaminathan 26.Srilatha Menon 27.P.Malayappan 28.M.L.Vincent 29.Gunapriya Narendran 30.Sivaguru 31.N.Kumarasamy 32.S.Ravindran 33.M.Viswanathan 34.A.Janardhanan 35.Pratima R.Pandya 36.C.Kameswari Devi 37.Queen Mary Magdaline Xavier 38.A.Amalraj 39.B.Selvam 40.Dixon Fernando 41.K.R.Menon 42.S.Banumathi 43.K.S.Suganthi 44.V.Prema 45.Jacob Soundararajan 46.Muralidharan 47.Manikandan 48.Suganthi 49.Datchayini 50.S.Palanichamy .. Respondents ( Plaintiffs and Defendants 1 to 49) https://hcservices.ecourts.gov.in/hcservices/ O.S.A.NO.267 OF 2008: 1.T.V.Jayaraman 2.S.Soundarajan 3.M.Shivarajan 4.C.Ravi 5.Josephine Jenifer V.Rayan 6.Densing Fernando 7.K.Sivasankaran 8.G.Lakshmi Narayanan 9.Alston Rozario 10.J.Gordon 11.I.E.Daniel 12.Suria Selvaraj 13.Saraswathi 14.Ezhilselvi Fernando 15.Srilatha Menon 16.P.Malaiappan 17.Gunapriya Narendren 18.N.Kumarasamy 19.A.Janardhanan 20.Kameshwara Devi 21.Queen Mary Magdaline Xavier 22.A.Amalraj 23.B.Selvam 24.Dixon Fernando 25.S.Banumathi 26.K.S.Suganthi 27.V.Prema 28.Muralidaran 29.Suganthi 30.Datchayini .. Appellants Defendants Respondents Vs. 1.T.Kanniyarani 2.Amudha 3.S.Latha 4.V.Sumathi 5.Sakuntala S.Nikam 6.Rajkumar Acharya 7.J.T.Nirmalkumar 8.N.Selvakumar 9.M.S.Rapheal 10.Meenakumari Swaminathan 11.M.L.Vincent 12.Sivaguru 13.S.Ravindran https://hcservices.ecourts.gov.in/hcservices/ 14.M.Viswanathan 15.Pratima R.Pandya 16.K.R.Menon 17.Jacob Soundararajan 18.Manikandan 19.Lakshya Apartments Owners' Association, rep. by its President, Mahalakshmi Flats, New No.26, Tankbund Road, Nungambakkam, Chennai-600 034. 20.S.Palanichamy, Proprietor, Mahalakshmi Builders, 59,P.S.Sivasamy Salai, Mylapore, Chennai-600 004. 21.S.S.Raj ... Respondents (Plaintiffs an defendants) These O.S.As. have been preferred under Order 36 Rule 1 of O.S. Rules read with Clause 15 of Letters Patent against the judgment and decree passed by the learned Single Judge made in Tr.C.S.No.719 of 2001, dated 28.04.2003 and in C.S.No.570 of 1998 dated 11.12.2003. For Appellant : Mr.Suriya Selvaraj in OSA No.28 of 2004, 82/2005 Ms.Sundara Kanchini in OSA No.267/08 For Respondents : Mr.T.R.Rajagopalan, SC for Mr.P.S.Venkatasubramanian for RR1 and 2 in OSA No.28/2004 and in OSA No.82 of 2005 and in OSA No.267 of 2008 No appearance for other respondents in OSA No.28 of 2004 Ms.Gladys Daniel for Mrs.Sundarakanchanai for RR3 to 6, 11 to 13, 15, 16 to 18 20,22,24, 26,27,29,31,34, 37 to 43, 48 & 49 in OSA No.82 of 2005 and for RR3,13,17 to 19 in OSA.267/08 No appearance for other respondents in OSA No.82 of 2005 Other respondents are given up in OSA No.267 of 2008 https://hcservices.ecourts.gov.in/hcservices/ COMMON JUDGMENT (The judgment of the Court was made by M.CHOCKALINGAM, J.) This judgment shall govern the above three original side appeals. 2.O.S.A.No.28 of 2004 has arisen from the dismissal of Tr.C.S.No.719 of 2001, a suit for permanent injunction, while the other two appeals, namely O.S.A.Nos.82 of 2005 and 267 of 2008, have arisen from the judgment of the learned Single Judge made in C.S.No.570 of 1998, a suit for partition. 3.The plaintiff in Tr.C.S.No.719 of 2001 has filed the said suit seeking the relief of permanent injunction, stating that the plaintiff is an Association consisting of members, who are the owners of the apartments at the Flat situate at Nos.12 and 13, Tank Bund Road, Nungambakkam, Madras-34 under the name of Mahalakshmi Flats; that the plaintiff association, numbering 46, purchased the undivided shares on various dates from the defendants 1 and 2 through the power of attorney agent S.Palanisamy, who is the proprietor of the third defendant; that the plaintiff association also entered into an agreement for construction of the apartments as per the sanctioned plan with the third defendant; that the defendants 1 to 3 have not given any copy of the approved plan accorded to them by the fourth defendant; that the total constructed area purchased by the plaintiff association is 33,060 sq.ft.; that the vacant space on which the apartments were constructed should have to be 22,040 sq.ft. which is 9 grounds and 400 sq.ft.; that the plaintiff association have purchased the entire area of 22,040 sq.ft. by way of undivided shares and the defendants 1 to 3 do not have any right, claim or interest over the same; that the defendants 1 to 3 in connivance with the 4th defendant is trying to put up further construction in the suit schedule property, which is owned exclusively by the members of the plaintiff association; that the third defendant by letter, dated 23.5.1994 asked the plaintiff association a no objection certificate for ratification of the deviations and also for further construction, which is neither permissible in law nor as per the regulations and rules of the M.M.D.A.; and that on 26.8.1994, the third defendant attempted to trespass into the plaintiff association members' property forcibly and attempted to dump construction materials in the property belonging to the plaintiff association and hence the plaintiff has filed the said suit. 4.The said suit was resisted by the defendants 1 and 2, inter-alia stating that the suit is not maintainable; that these defendants owned land measuring 11 grounds and 653 sq.ft. comprised in T.S.No.554/4 Block No.33 bearing door Nos.12 and 13 Tank Bund Road, Nungambakkam, Madras; that they appointed the https://hcservices.ecourts.gov.in/hcservices/ third defendant as their power agent for sale of the said land and under separate sale deeds, they sold undivided share in the said land to 46 persons individually and separately, who are said to have constituted the plaintiff association; that the total undivided shares conveyed to them works out to an undivided 12747 sq.ft. in the land measuring 11 grounds 646 sq.ft.; that these defendants retained with them the balance undivided 14306 sq.ft. in the said land; that the said 46 purchasers voluntarily took over 12747 sq.ft. of land on the rear side of the property marked red in the sketch as and for their share in the common property; that they also provided a 20 feet common passage as shown in green colour in the sketch for the purpose of access from the road; that the said 46 persons appointed the third defendant M/s.Mahalakshmi Builders as their Engineer/Manager for construction of ownership flats for them in the said land marked red in the sketch and on construction, they occupied their respective flats and they are in possession and enjoyment of their respective flats together with their respective undivided share in the land measuring 12747 sq.ft.; that the said 46 persons together became owners of red marked portion measuring 12747 sq.ft., while these defendants became entitled to the balance extent of 14306 sq.ft. marked yellow in the sketch; that the power of attorney does not relate to construction of the building; that for the purpose of development of the land marked yellow in the sketch, these defendants dug up bore well and installed electric motor pump set; that the members of the plaintiff association are not in possession of the said land; that as rightful owners, these defendants are entitled to develop the said land marked yellow in the sketch; that when the plaintiff association refused to give the no objection certificate, these defendants explained the correct factum and legal position to the fourth defendant and on being satisfied about the same, the fourth defendant granted necessary planning permission for construction in the said land and that with ulterior motive, the plaintiff association has filed the suit. 5.The learned Single Judge, on trial, dismissed the suit, recording a finding that the plaint did not disclose any cause of action and hence it was to be rejected under Order VII Rule 11 C.P.C. 6.The defendants 1 and 2 in the suit for permanent injunction have filed C.S.No.570 of 1998 seeking partition, reiterating the contentions as found in the written statement in Tr.C.S.No.719 of 2001 and further, he has stated that the 48th defendant filed a suit in O.S.No.6573 of 1994 seeking permanent injunction; that in the said suit, the association had filed I.A.No.14693 of 1994, seeking interim injunction, but no interim order of injunction has been granted; that inspite of not having obtained any order of injunction, the defendants 1 to 48 are attempting to interfere with the plaintiffs' possession and enjoyment of the land described in schedule 'C', obstructing the construction being put up, threatening the watchmen and servants of the plaintiffs by https://hcservices.ecourts.gov.in/hcservices/ lodging complaints against them and also attempted to prevent the officials of the CMDA authorities from taking measurement of the land described in Schedule 'C'; that the cost of construction in the year 1995 when the plan was obtained was Rs.465/- per sq.ft. and the cost of construction as on date is Rs.600/- per sq.ft.; that the consequent damages which the plaintiffs have suffered owing to the increase in the cost of construction as on date is Rs.12,55,500/- and that the defendants 1 to 48 are jointly and severally liable to compensate the plaintiffs the said amount; that in the absence of formal partition, the defendants 1 to 47 are attempting to interfere with the plaintiffs' possession and enjoyment of the land described in schedule 'C' and hence the plaintiffs have filed the suit for partition and for damages. 7.The 48th defendant Association has filed the written statement, stating that the suit for partition is not maintainable either on facts or on law; that after giving an irrevocable power of attorney to the 49th defendant by the plaintiffs by way of a registered document, dated 14.09.1990, the plaintiffs have no locus standi to file the suit without cancelling the deed of power of attorney; that it is false to state that the plaintiffs are the owners of Door No.12; that since the plaintiffs are not the owners of Door No.12, they did not give any power of attorney with regard to that property and hence the suit for partition will not lie; that the registered power of attorney relates to Door No.13 only and the said Door No.13 relates to the apartment of defendants 1 to 47, namely the Mahalakshmi flats and there is no such door number 12 in the schedule of document No.172/90, dated 14.9.1990 and hence the schedule of property mentioned in the plaint is erroneous; that the defendants 1 to 47 purchased the undivided shares on various dates from the plaintiffs 1 and 2 through their power of attorney agent, namely the 49th defendant through registered sale deeds; that at the time of registering the sale deed, the 49th defendant changed the door number 13 into 12 and 13 on his own accord illegally to suit his purpose; that the parent documents reveal that the original door is 5, later it was changed as No.13 and that the suit property does not have any door number as 12; that by obtaining an ex parte injunction, the plaintiffs and the 49th defendant took law in their own hands and finished the partition by putting up barbed wire fence, thereby taking away the floor space index of the apartments; that 48th defendant filed I.A.No.2984 of 1998 to vacate the injunction and on 3.9.1998, the plaintiffs gave undertaking that status quo will be maintained and the Advocate Commissioner was appointed and a report was filed; that after execution of the work of construction of apartments, the plaintiffs have no right to interfere in any manner with the suit schedule property; that the places which are kept as common would continu to remain as common and no individual like the plaintiffs and the 49th defendant can claim ownership of the property and therefore, for all these reasons, the suit for partition is not maintainable and was to be dismissed. https://hcservices.ecourts.gov.in/hcservices/ 8.On the above pleadings, the learned Single Judge framed 5 issues. On the side of the plaintiffs, P.W.1 was examined and 5 documents were marked and on the side of the defendants, D.W.1 was examined and 4 documents were marked. The report and the plan filed by the Advocate Commissioner were marked as Exs.C.1 and C.2. On trial, the learned Single Judge granted the relief of partition and permanent injunction in respect of 'C' schedule property and the suit was dismissed in respect of the claim for damages. Aggrieved over the same, the defendants therein have brought forth the other two appeals, namely O.S.A.Nos.82 of 2005 and 267 of 2008. 9.Pursuant to the request made by the learned counsel on either side, all the appeals are taken up jointly for enquiry. At the time of enquiry of appeal, on consent by both sides, the documents, namely Exs.D.5 to D.52 are marked on the side of the appellant in O.S.A.No.82 of 2005 and so far as the respondents' side is concerned, only one document is marked as Ex.P.6. 10.The points that would arise for determination in O.S.A.No.28 of 2004 are as follows: a)Whether the plaintiff/appellant has shown any cause of action, which would require trial of the suit? b)Whether the plaintiff/appellant is entitled for permanent injunction, as asked for in the plaint? 11.The points that would arise for determination in the other two appeals, namely O.S.A.Nos.82 of 2005 and 267 of 2008 are as follows: a)Whether the plaintiffs/respondents are entitled to preliminary decree for partition as claimed by them in the suit? b)To what other reliefs, they are entitled to? 12.As could be seen above, the case of the appellant in O.S.A.No.28 of 2004, in short is that it is the Association, consisting of 46 flat members, who purchased the undivided shares on various dates from the defendants 1 and 2 through their power of attorney, who is shown as the third defendant; that the association entered into an agreement for construction of apartments with the defendants 1 to 3 as per the sanctioned plan; that the defendants had shown different plans to the members at the time of purchase of undivided shares; that the defendants 1 to 3 have not even given any copy of the approved plan; that when they made an attempt to get the plan from the authorities, they could not get it; that the total constructed area purchased by the members of the plaintiff association is 33,060 square feet; that vacant space on which apartments were constructed should have to be an extent of 22,040 sq. ft., i.e. 9 grounds and 400 sq. ft.; that the rest of the property, excepting the constructed area should be left common for the use and enjoyment of the flat owners; and that while the matter stood thus, the defendants 1 to 3 in connivance with the fourth defendant was trying to put up further construction, which was to be restrained by way of https://hcservices.ecourts.gov.in/hcservices/ permanent injunction. 13.The case of the respondents, who are defendants 1 and 2 in the above suit and who also sought for partition and damages in C.S.No.570 of 1998 was that they were the absolute owners of the land measuring 11 grounds and 653 sq. ft. comprised in T.S.No.554/4 Block No.33 bearing Door Nos.12 and 13 Tank Bund Road, Nungambakkam, Madras; that they appointed 49th defendant in the partition suit, who is the third defendant in Tr.C.S.No.719 of 2001 as their power agent in respect of the land; that the members of the Association purchased in aggregate the undivided shares of 12,747 sq.ft. out of 27053 sq.ft. in the land belonging to the defendants 1 and 2 and thus, the defendants continu to be the owners of remaining undivided 14306 sq. ft. out of the total area; that the defendants in the partition suit in respect of the undivided share purchased by them entered into separate supervisory agreements with M/s.Mahalakshmi Builders, of which the 49th defendant was the Proprietor and constructed for themselves apartments upon the land purchased by them and thus, the 49th defendant was doing the work of construction in his individual capacity and not the power agent of the plaintiffs. The right of way in the passage having 20 feet along with the northern boundary line of the land for access from Tank Bund Road to the building was also given. The flat owners immediately after completion of the construction, have taken possession of the property and also have been enjoying the same. The land measuring 12747 sq.ft. described in schedule 'B' to the plaint in the partition suit belonged to the flat owners, while the remainder measuring 14306 sq.ft. described in schedule 'C' belonged to defendants 1 and 2. The 48th defendant filed a suit in O.S.No.6573 of 1994 on the file of the City Civil Court, Madras, seeking permanent injunction as if the land measuring 22040 sq.ft. out of the total area, was purchased and also was in possession and enjoyment of the flat owners, which was factually not only incorrect, but also false. The defendants 1 and 2 attempted to raise only construction of the property, which was prevented by the flat owners and that the cost of construction is escalated and thus, they were liable to pay damages to the tune of Rs.12,55,500/- and therefore, the relief of partition was to be granted along with awarding damages. 14.Advancing arguments on behalf of the appellants, the learned counsel would submit that the suit was filed by the appellant against defendants 1 and 2, who were the previous owners of the property, the third defendant was the flat promoters and against M.M.D.A. also, asking for permanent injunction against the defendants 1 to 3 not to interfere in the common area of the apartment and not to alienate to the third parties and so far as the C.M.D.A. was concerned, to restrain them from sanctioning any plan for further construction. The property shown in the schedule was to an extent of 9 grounds 200 sq.ft. out of 11 grounds 200 sq.ft. situated in Tankbund Road, Nungambakkam, where a multi storey building is situated, which was constructed pursuant to the plan approved. The previous owners of the land, namely the https://hcservices.ecourts.gov.in/hcservices/ defendants 1 and 2 submitted the plan to C.M.D.A. in the year 1990, which is now marked as additional document. They have also filed a revised plan and got it sanctioned in the year 1991 covering an entire area of the property as site for construction and they have given irrevocable power of attorney in favour of the third defendant, who sold the flats in the form of undivided shares to 46 persons, who are the members of the association. The third defendant has arranged loans for those who wanted to purchase flats and submitted all documents and got the loan amount for his construction. After construction, the possession was handed over to the purchasers. Later in the year 1994, they started further construction in front portion of the flats upon the area, which has to be kept vacant to provide floor space index. The C.M.D.A. authorities came, made an inspection and demolished the same. Under these circumstances, the third defendant, by two letters, dated 23.05.1994 and 29.06.1994, addressed to the plaintiff association, asked No Objection Certificate for ratification of the deviations. Hence the plaintiff Association filed the suit for permanent injunction that the act of defendants 1 to 3 was not only an infringement, but invasion into the property of the flat owners. 15.Added further the learned counsel that in the said suit, the C.M.D.A. remained ex parte. The defendants 1 and 2 have obtained bogus pattas on the very same date at the back of 47 co- owners to take away the common area of the apartment. On those documents, sanctioned plan was obtained by them. On the strength of those documents, they have filed C.S.No.570 of 1998, showing the promoter and their power of attorney as 49th defendant. The plaintiff association filed a suit in O.S.No.6573 of 1994 on the file of the City Civil Court, Madras, which was transferred to this court and numbered as Tr.C.S.No.719 of 2001, which was dismissed as not maintainable. In the partition suit, the respondent relied on two documents, namely two sale deeds, dated 4.9.1986 and a planning permit, dated 3.8.1995 and the two extracts from permanent land register, dated 20.05.1998. According to the plaintiffs in the partition suit, they have given irrevocable power of attorney in favour of the third defendant on 14.9.1990 and it was also subsisting. The reason being is that the unpaid purchase money for a sum of Rs.20 lakhs for two sale deeds, dated 4.9.1986 was paid on 6.9.1990, which would clearly indicate that the power of attorney is coupled with interest. The stamp paper for the power of attorney was dated 4.9.1990 and the unpaid purchase money of Rs.20 lakhs was paid on 6.9.1990 and the power of attorney was dated 14.09.1990. In all these documents, there is only one Door number as 13. But the flat promoter on his own accord bifurcated one door number into two door numbers as 12 and 13 illegally to suit his convenience and to construct in the common area of the multi storey building and to violate the CMDA Rules. These numbers were mentioned in the bogus patta certificates also. From the evidence of D.W.1, it would be clear that the said door number is now changed from 13 to new no.26 by the Corporation of Chennai. https://hcservices.ecourts.gov.in/hcservices/ 16.The learned counsel would further submit that application No.2715 of 2001 was filed to reject the plaint. The plaintiffs in the partition suit did not file any counter and on behalf of the plaintiffs in the partition suit, the 49th defendant, the flat promoter filed counter, which would clearly indicate that it was the flat promoter, who has filed the suit for partition and the plaintiffs in that suit have just lent their names. The rough sketch, Ex.P.3, attached with the plaint does not disclose the main entrance of the multi storey building. On 17.09.1998, the plaintiffs obtained an exparte injunction in Application No.458 of 1998. Immediately, they finished the partition by barbed wire fence and the possession of the common area of multi storey building was taken away from the 47 owners of the apartment. The Advocate Commissioner was appointed and he has also filed the report, which would clearly reveal that the new fencing, the demolition, how the residents of the multi storey building were deprived of car parking area, common area and how the fire service or ambulance cannot reach the main entrance and how the four wheeler cannot take a right turn to approach the main entrance of the apartment from the drive way and so on. From the evidence of P.W.1 in the partition suit, it would be clear that he has candidly admitted that the vacant land was shown for the approval of the plan for construction of the multi storey building. He further submitted that a plan inclusive of the land was submitted to the CMDA for seeking permission for building and that the flats were sold only by way of undivided shares. He has also further stated that it is not correct to state that he did not personally know as to how many flats were sold by power agent and the extent of sale price thereof. He knew that as per the DCR, approval can be given only for an extent of 20793 sq.ft. of land. 17.The learned counsel would further add that in the plan submitted with the plaint, the main entrance of the building was not shown. In 1994, constructions commenced opposite to the main entrance. So far as the evidence of D.W.1 is concerned, he has categorically stated that the 49th defendant, the flat promoter arranged loan for those who wanted to purchase flats and got their signatures and gave all the documents to various banks and the banks gave him money for the construction and he handed over the apartment in the year 1992. Then, he started further construction in the common area, which was