Sale deed silent about garage in the property.

The plaintiff in O.S.No.2374 of 1979 on the file of the 17th Assistant Judge, City Civil Court, Madras, is the appellant in the Second Appeal. The defendants 1 to 5 in the said suit are the respondents 1 to 5 in this Second Appeal. For the sake of convenience the parties are referred to by the nomenclature given to them in the suit.

2. The plaintiff’s suit is for declaration that the garage in A Schedule property is the common property of the plaintiff and his co-owners of other flats and for directing the second defendant to deliver possession of the garage to the plaintiff and other co-owners and for grant of permanent injunction restraining the first defendant from in any way dealing with the garage contrary to the covenants in the sale deeds and against the second defendant from in any way obstructing the plaintiff from using the garage with his undivided l/4th share in the land out of 2 grounds and 1,650 sq.ft. The case of the plaintiff is as follows: The house and ground bearing door Number 12 (old Door No.26), Thiruvengadam Street, described in A schedule, originally belonged to the father of the first defendant. He had transferred the same by a deed of gift dated 23. 1972 to the first defendant under a registered document in the year 1972. The first defendant sold to the plaintiff and four others the land and flats marked A to E by separate sale deeds for the consideration recited therein and put them in possession. The plaintiff has purchased an undivided l/4th share in the land out of 2 grounds and 1,650 sq.ft. and one self-contained flat A in the first floor described in B schedule under a registered sale deed dated 28. 1978 for a total consideration of Rs.60,000. Four others also purchased the other flats along with their l/4th,l/4th, l/8th and l/8th share in the land out of 2 grounds and 1,650 sq.ft. Ever since the date of purchase, the plaintiff has been in possession and enjoyment of flat ‘A’ along with the undivided l/4th share in the said land out of 2 grounds and 1,650 sq.ft. with all amenities, easements, rights of way etc. in common with the other co-owners. The plaintiff and his co-owners, the purchasers of the other flats are jointly enjoying the common amenities including the garage according to their respective sale deeds. The second defendant, with the connivance, of the first defendant, clandestinely and without the consent of the plaintiff, trespassed into the property and occupied the garage claiming to be the tenant in the garage under the first defendant. The first defendant has no right over the garage and therefore, the second defendant, who wrongfully, trespassed and occupied the garage on 2. 1979, without the consent of the plaintiff is in wrongful possession of the property.

3. The defendants 1 and 2 resisted the suit contending as follows: The garage was never included in the sale deeds of the plaintiff or other vendees of the flats B to E. The garage was never intended to be a common one and it was never in enjoyment of the plaintiff and purchasers of the other flats. It was not a common amenity. The garage was never included in any of the sale deeds and it cannot form part of the land alleged to have been sold to the plaintiff and other purchasers. The garage and other portion adjacent to it was sold to the second defendant in pursuance of an agreement and the sale deed was registered on 4. 1979. The garage and other adjacent portion sold to the second defendant was always in the exclusive possession of the first defendant till July, 1978 when advance was taken from the second defendant and possession was handed over in pursuance of an agreement and as part-performance of the sale. The plaintiff has not impleaded the purchasers of other flats viz., B to E and such non-joinder of other four purchasers is fatal to the maintainability of the suit. The plaintiff is not entitled to the declaration and also not entitled to recover possession of the garage as well as the injunction pra