IMPORTANT POINT
The central legal point established in the judgment is the importance of proper evidence, opportunity for contesting parties to present their case, and consideration of all relevant documents before reaching a decision.

JUDGMENT :

Prayer: This First Appeal is filed under Section 96 and Order XLI Rule 1 of Code of Civil Procedure against the judgment and decree dated 12.08.2013 passed in O.S. No. 11502 of 2010 on the file of the XVII Asst. Judge, City Civil Court, Madras.

1. The defeated first defendant is the appellant herein and the first respondent T.N.U. Nagappa Chakravarthy filed the suit in O.S. No. 11502 of 2010 before the City Civil Court, Chennai for declaration that the defendants 1 to 4 therein have no right to put up any construction or obstruction or erection in the common passage at Shop Nos. 153 & 154, ground Floor, at the Ground Floor, Fountain Plaza, Pantheon Road, Egmore, Chennai and consequential relief of permanent injunction in the form of putting up any further construction in any manner in the red marked portion in the plaint annexed and for mandatory injunction directing the defendants 1 to 4 therein to remove the obstruction and shutters and other erections put up by the first defendant between Shop Nos.153 & 154 in the schedule of properties.

2. Parties are referred to as per their ranking in the original suit for the sake of convenience.

3.......

(a) Originally the plaintiff's wife purchased undivided share of land alongwith other owners of undivided shares and a shopping complex was constructed by the Builder viz. Southern Investments and Shop No. 154 in the Ground Floor was allotted to the plaintiff's wife and the plaintiff's wife was the owner of the said shop together with undivided share in the land like other owners of the shops. Plaintiff's wife died on 28.11.1992 leaving behind her, the plaintiff and her daughters as her legal heirs. In such capacity, the plaintiff, as husband is running the said flour mill. The plaint further proceeds that the 1st defendant is the owner of the Shop No. 156 in the Ground Floor in the said complex, together with undivided share in the land. The said complex consists of Ground Floor, 9 floors besides basement. There are 85 shops in the Ground Floor and all the shop owners are the members of the 2nd defendant which maintains the complex and also providing water supply, operating lift and providing security and other allied facilities and services to its members. The members also pay maintenance charges to the 2nd defendant Association. There is also car park areas in the said complex. There is a common area in between the plaintiff's shop and the 1st defendant's shop and there is a staircase for access to the common area to the 1st floor and other floors. The said common area which is marked in red colour in the plan annexed with existing staircase which is to be kept as common for all the co-owners including the plaintiff and the 1st defendant.

(b) It is alleged that the first defendant has put up the shed in between Shop Nos. 153 & 154 and using it as a shop and hence the plaintiff has filed the above suit.

(c) In short, the case of the plaintiff is that as per the map, rough sketch showing the plan where there is no shop as Shop No. 153/1, it is only a common area for the staircase and no one has right in any manner to sell or deal with the common area. After issuing pre -suit notice, the suit was filed. The appellant/1st defendant remained ex-parte.

(d) The lower court records show that in I.A. No. 18325 of 2010 in O.S. No. 11502 of 2010, the plaintiff sought for injunction restraining the defendants 1 to 4 from putting up any construction or causing any obstruction in the common passage in between Shop Nos. 153 and 154, Ground floor, Fountain Plaza, Pantheon Road, Egmore, Chennai. By order dated 03.12.2010, the said Interlocutory Application was dismissed. In the said application, it appears that the appellant/1st defendant filed counter affidavit and filed nine documents. After dismissal of the said I.A. the suit was not taken up for hearing and subsequently, when it was taken up for hearing, it appears from the lower court records that the 1st defendant/appellant herein remained