The main legal point established in the judgment is that the 'B' schedule property was a common area for both plaintiffs and defendants, and no exclusive right over the common area could be claimed by either party.

JUDGMENT :

Prayer: Appeal Suit has been filed under Section 96 of the Civil Procedure Code, 1908, against the judgment and decree dated 22.12.2015 in O.S.no.9908 of 2010 on the file of the 17th Additional City Civil Judge, Chennai.

1. The first appeal is directed against the judgment and decree passed by the trial Court in O.S.No.9908/2010 filed for declaration and permanent injunction in respect to the property more fully described under schedule ‘B’ of the plaint and for mandatory injunction to remove the permanent structure put upon by the defendants in the area marked as “X,Y and Z” in the ‘B’ schedule property.

2. The brief facts leading to the appeal:

The suit property is a residential complex known as “Temple View Apartments” situated in 6 grounds 929 sqft land more fully described under schedule ‘A’ of the plaint. The subject matter of the dispute is the front set back meant to be kept as open space and for common usage of all the co-owners. The said portion is described as ‘B’ schedule property measuring approximately 2004 sq. ft. The flat owners are entitled for the right of easement along the common passage measuring 16 ft. width on the western side of the apartment and also the right to enjoy the other common area including the front set back area described as ‘B’ schedule property. The plaintiffs and the defendants are the co-owners of the ‘A’ and ‘B’ schedule properties. While so, the tenant of the defendants occupying the ground floor had put up temporary structure and started storing their things. This was brought to the notice of the defendants and requested to remove the encroachment on the common area. The defendants though promised to remove the temporary structure, contrary to his promise, during late 2005 in the portion marked as X,Y and Z in the B schedule property put up two permanent structures with shutters abutting either side of the steps leading to the Bank. The defendants refused to remove the permanent structures put up in the common area meant for common enjoyment of the co-owners. Attempts to settle the dispute amicably during the month of March, 2008 and thereafter failed. When no exclusive right given to the defendants over the ‘B’ schedule property, the defendants claiming exclusive right had encroached the common area.

3. The defendants through the written statement admit the fact that the ‘B’ schedule property is a common area to the plaintiffs and defendants. He claims only exclusive right to park his cars in that area, since the other co-owners are allotted the car park slot on the other sides of the building. The defendants have given an undertaking as early as June 2005 that they have no intention to put up any permanent structure in the common area and due notice given to the tenants under occupation not to cause in convenience to the co occupants. The steps also taken to vacate the said tenant. The entrance to the residents of Temple view Apartment is on the side of the building and not from the front of the building. The parking space for the plaintiffs are allotted on the rear side and southern side of the building. There is no necessity for the plaintiffs to meddle with the car park area allotted to the defendants on the front portion. The structure in ‘XYZ’ marked portion was in existence, since 1985 and not a new structure put up by the defendants recently as alleged.

4. The issues re-casted and taken for decision:-

(1) Whether the plaintiffs are entitled for the relief of declaration that the ‘B’ schedule property is common to the plaintiffs and defendants?

(2) Whether the plaintiffs are entitled for the relief of permanent injunction restraining the defendants from in any manner constructing any super structure in the ‘B’ schedule of property?

(3) Whether the plaintiffs are entitled for the relief of mandatory injunction directing the defendants 1 to 3 to remove the permanent structure marked as X,Y and Z in the plan annexed with plaint ?

(4) To what other relief the plaintiffs are ent