IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.3.2011 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.1610 of 2010 and M.P.No.1 of 2010 1.Kennady 2.V.Subramani ...Appellants/Defendants 1&2 vs. 1.G.Gokulakrishnan 2.The Secretary P.T.C.Cooperative House, Construction Society Ltd., Annasalai, Chennai-600 002 3.The Secretary, Thoraipakkam Pallavan Residents Association Pallavan Colony, Thoraipakkam, Chennai-600 006 4.The Commissioner, St.Thomas Mount Panchayat Union, Chitlapakkam Respondents 2 to 4 remained exparte in the appellate court and notice may be dispensed with. ...Respondents/Plaintiff and defendants 3 to 5 The second appeal is filed against the judgement and decree dated 16.2.2010 passed by the Subordinate Judge, Tambaram, in A.S.No.26/08 (CPT S.C.A.No.71/06) confirming the judgement and decree dated 30.9.2005 passed by the District Munsif, Alandur,in O.S.No.444 of 1999. For Appellants : Mr.Y.Raghuraman For Respondents : Mr.K.P.Chandrasekaran for Mr.G.Gokulakrishnan https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT The second appeal is focussed by the plaintiff inveighing the judgement and decree dated 16.2.2010 passed by the Subordinate Judge, Tambaram, in A.S.No.26/08 (CPT S.C.A.No.71/06) confirming the judgement and decree dated 30.9.2005 passed by the District Munsif, Alandur,in O.S.No.444 of 1999, which was filed for declaration and for permanent and mandatory injunctions. 2. The parties, for the sake of convenience, are referred to here under according to their litigative status and ranking before the trial Court. 3. The epitome and the long and short of the relevant facts absolutely necessary and germane for the disposal of this second appeal would run thus: (a) The plaintiff filed the suit seeking the following reliefs: "(i) to declare that the construction made by the first and second defendants over the southern side of the plaintiff's property which is the common space, as illegal? (ii) consequently, for a permanent injunction restraining the first and second defendants, their men, agents and other persons who are acting on behalf of them from further constructing in the schedule mentioned property. (iii) for a mandatory injunction directing the first and second defendant to remove the illegal construction made on the common space at the southern side of the plaintiffs' property and also the balcony, staircase septic tank and the construction on the parapet wall made by the first and second defendant at the first floor. (iv) to direct the defendants to pay the cost of the suit." (extracted as such) (b) Defendants 1 and 2 filed the written statements resisting the suit. Whereupon issues were framed. (c) During trial, the plaintiff examined himself as P.W.1 and Exs.A1 to A6 were marked. On the defendants' side, the first defendant examined himself as D.W.1 along with D.W.2 and Exs.B1 to B8 were marked. Exs.C1 and C2 were marked as Court documents. (d) Ultimately, the trial Court decreed the suit. https://hcservices.ecourts.gov.in/hcservices/ (e) Being aggrieved by and dissatisfied with the judgement and decree of the trial Court, the appeal was filed by the defendants for nothing but to be dismissed by the first appellate Court, confirming the judgement and decree of the trial Court. 4. Impugning and challenging the judgements and decrees of both the Courts below, this second appeal has been focussed by the defendants on various grounds, suggesting the following substantial questions of law. "(1) Whether the appellate Court is right in not considering the grounds raised in the appeal and decide on an issue which is not raised by the party and not relevant to the case? (2) Whether the Courts below without deciding the question whether a party's right to drainage, water is infringed can an injunction be granted? (3) Without a finding that an irreparable loss and hardship will be caused to a party, a mandatory injunction can be granted against him or if at all can it be compensated by damages?" (extracted as such) 5. Heard both sides. 6. The gist and kernal of the arguments of the learned counsel for the appellants/the defendants 1 and 2 would run thus: (i) Both the Courts below failed to take into consideration the fact that the impugned construction has been raised in the area virtually meant for the enjoyment of the defendants and not for the plaintiff. (ii) Even though in the sale deed in favour of the plaintiff, the P.T.C.Cooperative House Construction Society Ltd., set out certain conditions, virtually, by way of oral agreement and arrangement among the occupiers of the flats, the respective front portions adjoining the ground floors were taken by the respective owners of the ground floors and the owners of the flats at the first floor took away the side spaces available on ground. As such, no more it could be construed that the area left vacant around the building should be enjoyed by all for ever. (iii) Only for five years from the date of sale deed there were some restrictions and thereafter much water has flown under the bridge. (iv) The plaintiff, who approached the Court already occupied the front portion adjoining his ground floor flat and raised compound https://hcservices.ecourts.gov.in/hcservices/ wall also. As such, in the erstwhile common space, infront of the ground floor flat of the plaintiff, no one could enter or move around. When such is the position, the plaintiff is having no locus standi at all to veer round and take a plea simply based on certain conditions found in his vendors sale deed-Ex.A7. (v) The plaintiff is not the original allottee of the said housing Society, but he only stepped into the shoes of the original allottee and he is raising untenable pleas, quite antithetical to the arrangements and oral agreements already arrived at among the owners/occupants of the flats in that area. (vi) Both the Courts below simply relied on certain clauses in Ex.A7 and held that the construction effected by the defendants were illegal and on that ground, ordered for demolition. Before granting mandatory injunction, the Court should have taken into consideration as in what way the plaintiff sustained any loss or irreparable injury. Without applying their mind on those ingredients, mechanically the mandatory injunction was granted to the detriment of the defendants. (vii) The staircase provided by the Housing Society at the time of allotment of the flat turned out to be a useless one and for the purpose of convenience, new staircase was put up by the first defendant and in no way that could be found fault with by the plaintiff. (viii) Even for argument sake it is taken that such over bridge like constriction is not tenable, even then, the pillars and the roof on that pillar abetting Block No.54 cannot be objected to by the occupant of a ground floor in Block No.55. The defendant No.2 would be in a position to use it even for parking his car adjoining his portion, for which, the plaintiff could have no business to raise any objection. (ix) Both the Courts below failed to take into account the relevant facts and decided the lis. The first appellate Court also failed to adhere to Order 41 Rule 31 of C.P.C.and simply dismissed the suit confirming the judgement and decree of the trial Court. 7. After hearing both sides, I am of the view that the following substantial questions of law could be framed for consideration. (i) Whether the first appellate Court, without adhering to Order 41 Rule 31 of C.P.C. disposed of the appeal? (ii) Whether defendants 1 and 2 proved and established before the Court the alleged oral agreement or the arrangement, which is stated to have emerged among the owners of the flats in the said PTC Cooperative House Construction Society Ltd., area and if so, whether https://hcservices.ecourts.gov.in/hcservices/ both the Courts below, ignoring the same, declared the said construction put up by D1 and D2 as illegal and ordered it to be demolished. (iii) Whether both the Courts below mechanically granted the relief of mandatory injunction, without getting themselves satisfied about the ingredients governing the granting of mandatory injunction. (iv) Whether there is any perversity or illegality in the judgments and decrees of the Courts below? 8. All these substantial questions of law are taken together for discussion as they are interwoven and interlinked, interconnected and entwined with each other. 9. Tersely and briefly, the indubitable and indisputable, unarguable and ungainsayable facts would run thus: (i) The PTC Co-operative House Construction Society Limited, Anna Salai, Chennai, developed an area of 5.71 acres in Thoraippakkam Village Panchayat, for the purpose of allotting flats to the beneficiaries. In that process, the plaintiff's vendor as well as D1 and D2 were allotted different flats. Ex.A7 is the sale deed executed by D3-the Secretary of the said PTC Co-operative Society Limited, in favour of the plaintiff's vendor, allotting a flat in the ground floor in block No.55. Whereas, D1 was allotted a flat in the first floor in block No.55, D2 was allotted a flat in the first floor in Block No.54. It so happened that the plaintiff purchased the said ground floor flat in block No.55 from his vendor. While so, D1 and D2 raised pillars in the open space in between the said two blocks, namely, block No.55 and 54 and linked them by constructing an over bridge, so that from the first floor of D1 one could reach the first floor of D2 by passing through the said over bridge, for which, no permission was obtained from D3, D4 or D5. (ii) Impugning and challenging the said act of D1 and D2, the plaintiff filed the suit. 10. Both the Courts below au fait with law and au courant with facts properly ushered in the relevant proposition of law and held that the construction was illegal and liable to be dismissed. 11. Whereas, the learned counsel for D1 and D2 would try to justify his stand by pointing out that even though in Ex.A7 there are certain clauses, which would mandate that the open space in the undivided area should be maintained as such, nonetheless, subsequently, by conduct of parties and by virtue of oral agreements, each of the flat owners started using a specific area in the open undivided share as their own exclusive property and in such a case, now the plaintiff cannot have a volte face and turn turtle and raise https://hcservices.ecourts.gov.in/hcservices/ his accusative finger as against D1 and D2 for having constructed that over bridge like structure, which connect the respective flats. The learned counsel would also contend that the plaintiff constructed compound wall enclosing the area infront of his ground floor flat and thereby, no other person could use that open space comprised in the undivided share. 12. I recollect and call up the following maxims: (i) Affirmatis est probare – He who affirms must prove. (ii) Affirmanti, non neganti incumbit probatio – The burden of proof lies upon him who affirms, not upon one who denies. 13. I would like to extract hereunder the relevant conditions found in Ex.A7: "14. The purchaser shall be deemed to possess the rights mentioned below subject to the condition that he will along with the other owner bear the expenses mentioned below and also subject to the restrictions mentioned below. The purchaser shall be obliged to contribute for the maintenance of these flats to the vendor Society as decided from time to time: a. Full right and liberty for the purchaser and all other persons authorized or permitted by the purchaser (in common with all other persons) entitled, permitted to or authorized to right at all times day or night and for all purposes to go, pass and repass the passage out side the building over and along to be constructed in the land described in the schedule 'A; hereto. b. Full right and liberty to the persons referred to supra, common with all other persons with or without motor car or other permitted vehicles (except lorries or similar heavy vehicles) at all times day or night and for all purposes to go pass and repass over the land appurtenant to the aforesaid building. c. The right to subjacent and lateral support and to shelter and protection from the other parts of the aforesaid buildings from the site and the roof. d. The free and uninterrupted passage, running water oil gas and electricity from and to the first through the sewers and drains and water courses, cables, pipes and wires which are or may be at the building or any part thereof. https://hcservices.ecourts.gov.in/hcservices/ e. Right of passage for the vendor society, its agents or workmen to the part of the building at all reasonable times on notice including or maintaining the same by persons authorized by the vendor society. f. Right of passage for the purchaser and purchaser's agents or workmen to the parts of the building at all reasonable times on notice to enter into and upon other parts of the building for the purpose of repairing, cleaning maintaining or renewing any such sewers and drains and water courses, cables, pipes and wires. g. To lay cable or wires through common walls of passage by the vendor society for telephone installations however respecting the equal rights of the owners thereof. h. The rights for the servants workmen and others at all reasonable times on notice to enter into and upon other parts of the said building for the purposes of repairing, maintaining renewing altering or rebuilding flats or any part of the building or giving subjacent or lateral support, shelter or protection to the flats. i. The right to do all or any of the acts aforesaid without notice in the case of emergency. j. The expenses of maintaining, repairing, redecorating and renewing the main structure and in particular the roof stockes and rain water pipes drains and electrical cables and wires in an under or upon the building enjoyed or used by the purchaser in common with the owners or leassess of the other flats, the maintenance of passage landing and staircase of the building so enjoyed or used by the purchaser in common as aforesaid including the boundary walls of the building. k. The cost of decorating the exterior of the building. l. All rates and outgoings if any payable in respect of the land described in the schedule A hereto and other parts of the said building jointly owned or enjoyed by the purchaser along with the owners of the flats and electricity charges in respect of water supply to the building lights and for other purposes commonly. m. Not to use or permit the flat in manner which should diminish the value or utility of the pipes, cisterns and like common amenities in the flat and hinder the effective use of the same by the owners of the other flats. https://hcservices.ecourts.gov.in/hcservices/ n. Not to decorate the exterior of the flat otherwise than in manner to by a majority of the owners of flats or the leassess of the flats comprised in the building or failing such agreement in the manner as near as may be in which it was previously decorated. o. Any repair or damage to the Electricity Cable leading to these flats including replacing the cable, the cost will be shared by all the owners of the flats." Similar conditions could also be noted in Ex.B1 as well as Ex.B2-the sale deeds in favour of D1 and D2, respectively, executed by D3. 14. I hark back to the maximam - 'Ubi jus, ibi remedium' – Where there is a right, there is a remedy. 15. The above maxim clearly exemplifies and demonstrates that if at all there is any right on the part of the plaintiff as against a particular defendant to enforce a right, then the Court has to enforce it. 16. Here it is a straight case of the plaintiff that the conditions stipulated in the sale deeds of the plaintiff's vendor as well as D1 and D2 should be interpreted in stricto senso and implemented. 17. Accordingly if viewed, it is clear that apart from the built up area, all other areas in that 5.71 acres would constitute the open space, wherein all would be having interest and that could be described as an interest which is available for all of them. 'Each for all and all for each' theory in respect of such open spaces is found embodied in those sale deeds and there could be no other interpretation apart from that. The clauses as found in those sale deeds are in pari materia with the Rules and Regulations governing construction of flats in the metropolitan areas. There are also clauses in those sale deeds to the effect that the common passages and the open space available in that area should be capable of being used by all the flat owners, without any exception. When such is the position, defendants 1 and 2 cannot be heard to contend that for the purpose of convenience the flat owners effected certain changes and thereby, in the open space each of the flat owners carved out separate areas for their own beneficial use. 18. At this juncture, I call up and recollect the following maxims: (i) Ex dolo malo non oritur actio – Out of fraud no action arises; fraud never gives a right of action. (ii) Ex nudo pacto non oritur actio-Out of a nude or naked pack that is, a bare parol agreement without https://hcservices.ecourts.gov.in/hcservices/ consideration, no action arises. Out of a promise neither attended with particular solemnity such as belongs to a specialty nor with any consideration no legal liability can arise. (iii)Ex turpi causa non oritur actio: Out of a base illegal, or immoral consideration, an action does not arise. (iv) Ex maleficio non oritur contractus : A contract cannot arise from misconduct. 19. All these sister maxims would convey that If any agreement whether oral or written is not in accordance with law, then such an agreement either oral or written cannot be got enforced in a Court of law. 20. This Court can even take judicial notice of the fact that in areas where there are flats, the flat owners cannot claim any exclusive right over any part of the open space and 'all for each and each for all' theory would be applicable in respect of such open spaces. 21. I recollect the maxims (i) 'Summum jus, summa injuria' – The highest right is the utmost injury. That is, law too rigidly interpreted produces the greatest injustice; (ii) 'De minisis non curat lex' – The law does not care for, or take notice of, very small or trifling matters. The law does not concern itself about trifles. 22. No doubt, applying the above principles, I would readily agree with the counsel for D1 and D2 that for the purpose of convenience D1, as narrated by him, had put up a staircase in the open space, removing the old one, because, the old staircase furnished by the Housing Society was not convenient. As such, I would like to point out that a mere construction of staircase for convenience sake need not be viewed so seriously and I am of the considered view that the maxims, referred to supra, can be extended in the facts and circumstances of this case to that limited extent. However, the conduct of D1 and D2 in constructing the over bridge like structure over the common area by raising pillars in the common open space cannot be countenanced. 23. My mind is reminiscent and redolent of the following maxims: "(i) Cujus Est Solum Ejus Est Usque ad coelum' – The person who owns the soil owns up to the sky. (ii) 'Superficies solo cedit' – The surface goes with the land. https://hcservices.ecourts.gov.in/hcservices/ (iii) 'Sic Utere Tuo ut alienum non laedas' – Use your property so as not to damage another's. 24. Accordingly, if viewed, up to the sky a person having interest in the land could exercise his right. D1 and D2 cannot be heard to say that there are only pillars from the ground and only at the top level . over bridge like structure was built. The users of the ground are entitled to use the space up to the sky. Hence, in such a case, the argument as put forth on the side of D1 and D2 cannot be countenanced. 25. What is contemplated in the respective sale deeds is that each of the flat owners is entitled to 1/224 undivided share in the land concerned and the passages and open spaces left unconstructed in that area of 5.71 acres would be available for the use of all. In such a case, arbitrarily and illegally the adjacent flat owners or the flat owners of two different blocks cannot try to enter into a separate agreement among themselves and make construction. Such conduct of defendants 1 and 2 are gross and flagrant violation and breach of the contractual terms and conditions as contained in those sale deeds Ex.A7, Ex.B1 and Ex.B2. 26. No doubt, the first appellate Court clearly and categorically observed that the mere consent obtained from the other flat owner in block No.54 would not cure the illegality. As such, I am of the considered view that the first appellate Court considering all the facts and applying the correct proposition of law, turned down the pleas of D1 and D2. 27. Virtually, the learned counsel for D1 and D2 would make me to think of the proverbs 'physician cure thyself' or 'Doctor cure yourself'. 28. The plaintiff should have approached the Court with clean hands. "He who seeks equity must do equity and he who comes to equity must come with clean hands". 29. Whereas, the plaintiff, according to D1 and D2, approached the Court, after grossly violating the terms and conditions contained in his parent document i.e. Ex.A7 and in such a case, he is having no locus standi to maintain the suit, for which, the learned counsel for the plaintiff would try to faintly resist the argument of the learned counsel for D1 and D2 by pointing out that his client did not put any compound wall etc., but such a plea is antithetical to the photos furnished by the Advocate Commissioner. I could see that the plaintiff also to some extent violated the terms and conditions as contemplated in the parent deed Ex.A7. https://hcservices.ecourts.gov.in/hcservices/ 30. I would make it clear that it is open for D1 and D2 to initiate appropriate action to see that in letter and spirit the terms and conditions in Ex.A7 are adhered to by the plaintiff and that is a different matter, over which this Court need not ponder over now. But one thing is clear that once the plaintiff is venturing to enforce the terms and conditions in the sale deeds concerned, the defence put up by D1 and D2 is not legally sustainable for the reasons adhered to supra. 31. The learned counsel for D1 and D2 would argue that there was connivance and acquiescence on the part of the plaintiff, a he was keeping quiet till the said structure was completed by D1 and D2, for which the learned counsel for the plaintiff would vehemently oppose and point out that the records would reveal that ever since the defendants started construction, the plaintiff resisted the same and that alone galvanised or geared, propelled or impelled him to file the suit and seek for injunction. 32. The learned counsel for the plaintiff would rely upon Ex.A1- the legal notice dated 18.8.1999 and in fact, Ex.A4 is the earlier letter sent by one Shanmugam-the father in law of the plaintiff. Placing reliance on those exhibits, the learned counsel for the plaintiff would submit that the plaintiff took steps to see that the construction was not proceeded further. 33. Whereas, the learned counsel for D1 and D2 would submit that even as per the versions in the notices concerned, namely, Ex.A1 and A4, the said construction was over. 34. In this connection I would like to refer to the famous treatise, namely, Ratanlal & Dhirajlal The LAW OF TORTS (25th Edition 2006 page 135) "ACQUIESCENCE Where a person who knows that he is entitled to enforce a right, neglects to do so for