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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE M. CHOCKALINGAM
Sashikala rep. By her power agent
Versus
S.A. Sahida Beevi & Others
S.A.Nos. 485 of 2006 & 486 of 2006 & CMP Nos. 6175 of 2006 & 6176 of 2006 & 10766 of 2006 & 10767 of 2006
Decided On : 05-01-2007
Constructive Estoppel - Property Dispute - Sec.6(2) and (3) of the Tamil Nadu Apartment Ownership Act, 1994 - The judgment discusses the application of constructive estoppel against the true owner of the property, the extinguishment of right and title over the property, and the claim of a third party over the property without valid sale consideration. It also highlights the interpretation and application of Sec.6(2) and (3) of the Tamil Nadu Apartment Ownership Act, 1994, in determining the rights of the flat owners and the owner of the property.
Fact of the Case:
The plaintiff filed a suit for permanent injunction to restrain the defendants from interfering with her possession of the property. The defendants filed a counter claim seeking permanent injunction against the plaintiff. Both the trial Court and the first appellate Court dismissed the suit and decreed the counter claim. The plaintiff appealed to the higher Court.
Finding of the Court:
The Court found that the plaintiff had not retained the property as her own, as evidenced by the approved plan and an undertaking given to the M.M.D.A. The Court also noted that the plaintiff's affidavit before the Consumer Redressal Forum indicated that the property was part of the building project. The Court held that the plaintiff could not claim ownership over the property and that the flat owners were entitled to use the property as a passage.
Issues: The issues included the application of constructive estoppel, the extinguishment of right and title over the property, and the claim of a third party over the property without valid sale consideration. The Court also considered the rights of the flat owners under Sec.6(2) and (3) of the Tamil Nadu Apartment Ownership Act, 1994.
Ratio Decidendi: The Court's decision was based on the finding that the plaintiff had not retained the property as her own, as evidenced by the approved plan and an undertaking given to the M.M.D.A. The Court also considered the application of Sec.6(2) and (3) of the Tamil Nadu Apartment Ownership Act, 1994, in determining the rights of the flat owners and the owner of the property.
Final Decision: The Court dismissed the plaintiff's appeal and modified the injunction granted by the lower Courts, allowing the defendants to use the property as a passage to reach Cutchery Road. The injunction for exclusive possession and enjoyment was set aside.
This judgment shall govern these two appeals.
2. The plaintiff aggrieved over the rejection of her request by both the Courts below in a suit for permanent injunction that the respondents/defendants should be restrained from interfering with her peaceful possession and enjoyment of the suit property and also the grant of a decree in the counter claim made by the respondents seeking permanent injunction against the plaintiff that she should not interfere with the possession and exclusive enjoyment of the suit property, has took it on two appeals. The first appellate Court affirmed the judgment of the trial Court. Hence, these two appeals at the instance of the plaintiff.
.3. The plaintiff filed the suit for the above relief inter alia stating that she became the absolute owner of the suit property in R.S.No.1833/14 measuring 2 grounds and 244 square feet at Cutchery Road, Mylapore, by virtue of a settlement deed dated 8. 1972, executed by one T.S.Sadasivam; that from the time onwards, she has been in possession and enjoyment of the same; that in order to develop the property, she demolished the old building; that now, it is a vacant site; that she has put up a small shed; that on the north, the property measuring 2 grounds and 650 square feet situated in R.S.Nos.1834/13 and 1833/16 at Kalvivaru Street, belonged to one Malini subramaniam and also the property measuring 2 grounds and 1634 square feet situated in R.S.No.1833/15 and 1834/3 at Kalvivaru Street, Mylapore, belonged to one Parvathi Srinivasan; that for the purpose of development, a sanctioned building plan was obtained from the M.M.D.A. and Corporation of Chennai, in which the suit property has been shown as a vacant site; that the promoter constructed a building in those two properties as per the sanctioned plan; that each of the defendant is owning a flat in the said building; that the defendants who have purchased the proportionate undivided share in the land, previously owned by Malini Subramaniam and Parvathi Srinivasan, under different sale deeds, do not have any right, title or interest in the suit property; that they are having access to their flats from Kalvivaru Street; that the plaintiff has not conveyed any portion of the suit property to them; that there were compound walls around the suit property; that on 11. 1994, the defendants attempted to trespass into the suit property; that she lodged a police complaint, and under the circumstances, there arose a necessity to file the suit.
.4. The suit was resisted by the defendants by filing a written statement stating that the suit property is a private road leading to Cutchery Road as found in the sale deed executed by one Sridharan, the power agent of the plaintiff, and two other owners of the land for the purpose of development; that the plan approved by the M.M.D.A. dated 29. 1991 and filed by the plaintiff, shows the proposed residential flats at No.117 in R.S.No.1838/14, 1834/4 and 13, Cutchery Road, Mylapore; that the plan is signed by the plaintiff along with the two other owners; that the plan indicates the suit property as 33 feet approach road to Cutchery Road; that the agreement shows that the suit property is part and parcel of the building project; that on the basis of the legal opinion, the defendants purchased the undivided share in the property and entered into building agreements with Anand Builders owned by Sridharan and Kalasalingam; that they convinced all the flat owners that the suit property is the approach road for the building; that when the builder committed deviation, there arose legal proceedings; that one Ramji Subramaniam filed a writ petition in W.P.No.5618/93 wherein the said Sridharan filed an affidavit stating that all the three owners of Door Nos.117 and 118 sought permission for construction; that under the circumstances, Sridharan is estopped from making a contrary claim now; that when the Officials of the M.M.D.A. inspected the property, they found that the pl
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