IMPORTANT POINT
Exclusive rights to common areas in an apartment complex must be explicitly documented; unilateral actions that obstruct access to common facilities violate the Tamil Nadu Apartment Ownership Act, 1994.

JUDGMENT :

“LIVE AND LET LIVE” is the foundation on which the enjoyment of common areas in an Apartment Complex thrives. Unfortunately, like the case on hand, litigation pertaining to enjoyment of common areas has been on a steep rise.

2. The present litigation pertains to enjoyment of a car parking slot that has been purchased exclusively by one of the flat owners viz., the appellant herein.

3. The appellant is the unsuccessful defendant in O.S.No.4606 of 2007, where he suffered a decree for mandatory injunction to remove the grill gate measuring 15 x 10 feet put up by him in the common area, over the underground water sump situated; as one of the plaintiffs in O.S.No.4148 of 2008, where the plaintiff had sought for permanent injunction restraining the defendants viz., the other flat owners, from entering into the suit property or making use of the same for any common amenities and to restrain them from interfering with the plaintiff's possession and enjoyment of his exclusive car park, where also he suffered a decree of dismissal of the suit.

4. The brief facts of the appellant/1st plaintiff's case in O.S.No.4148 of 2008 and as the defendant in O.S.No.4606 of 2007 is that he purchased one of the 8 flats constructed by the developer, together with proportionate undivided share in the land. It is his specific case that even though 8 flats were constructed, in respect of 4 flats, a separate application for planning permission was obtained showing Door No.87/1, Kothavalchavadi Street, and in respect of the remaining 4 flats, a separate approval was obtained showing the property as Door No.87/2, Kothavalchavadi Lane. According to the appellant, 4 flats were allotted to the builder, who, in turn, sold them to the interested purchasers, including the appellant. The original owners of the land were allotted 4 flats, which were forming part of planning permission sanctioned in respect of Door No.87/1, Kothavalchavadi Street.

5. The further case of the appellant was that he purchased a flat bearing No.F-1 in First Floor with plinth area of 950 sq.ft together with an undivided share in the land to an extent of 553 sq.ft under a registered sale deed dated 21.03.2003. According to the appellant, an area of 310 sq.ft situate at No.87/1, Kothavalchavadi Sreet was reserved for car parking and out of the said 310 sq.ft, the appellant had purchased 115 sq.ft for his car park. According to the appellant, out of the plinth area of 950 sq.ft, 752 sq.ft was the flat measurement and share in the common area was 93 sq.ft and car parking area was 115 sq.ft, totalling to 950 sq.ft. Having purchased an exclusive car park, the appellant has every right to use the car parking area and according to the appellant, even during the time of construction, the developer constructed a short dividing wall, separating the common parking area and the appellant's private car parking area of 115 sq.ft. The appellant admitted to having put up a grill partition over the sump area, however, justifying his action on the ground that there was a continuous intrusion of others into his car parking area and there was a threat of safety to his vehicle. The appellant further contended that it did not in anyway, interfere with the usage of the sump.

6. It is also contended by the appellant that the plaintiff in O.S.No.4606 of 2007 and his sister, who were entitled to 4 flats, constructed for the original owners of the property, had no right to use the sump situate at Door No.87/1, Kothavalchavadi Street and that there was no agreement or covenant in the sale deed executed in favour of the appellant which prevented him from installing the grill partition over the sump.

7. Per contra, it was the case of the defendants in O.S.No.4148 of 2008 and the plaintiff in O.S.No.4606 of 2007 is that the appellant had no right to put up a grill partition over the sump area and the sump area was common space, meant for enjoyment of all the flat owners and the appellant had high handedly usurped und