The court emphasized the necessity of proper issue framing by trial and appellate courts to ensure valid judicial determinations and compliance with procedural laws.

JUDGMENT :

P. DHANABAL, J.

1. This second appeal has been preferred as against the decree and judgment passed by the VI Additional City Civil Court, Chennai in AS No. 336 of 2011 dated 30.01.2018.

2. The appellant is the 4th defendant, who is the legal heir of the first defendant. In fact, the respondents 1 to 19 in this Second Appeal have filed the main suit in O.S.No.1775 of 2007 on the file of XVI City Civil Court, Chennai for the reliefs of declaration and permanent injunction and the said suit was decreed. Aggrieved by the said decree and judgement, the defendants have preferred an appeal before the VI Judge, Additional City Civil Court, Chennai and the first appellate Court dismissed the appeal. Aggrieved by the decree and judgement of the first appellate Court, the present second appeal has been preferred by the appellant /4^th respondent, who is one of the legal heirs of the first defendant.

3. The brief averments of the plaint are as follows:

The second and third defendants, who are the owners of Plot no.5/2A, 5/2B, 2nd Seaward Road/Justice Balakrishnan Road are the owners of the suit property. The first defendant is the daughter of the second defendant and sister of the third defendant and she is the Proprietress of Sri Devi Constructions. The second and third defendants entered into a Joint Venture Agreement dated 06.09.1995 with the first defendant for construction and development of apartments and the 4th defendant had granted permission and the 5th defendant also issued planning permission through proceedings dated 08.01.1996 for construction of 13 apartments. The first defendant also constructed 13 apartments and sold to the plaintiffs. Thus, the plaintiffs became the owners of the apartments, called Avatar apartments. The first defendant entered into separate construction agreement with the plaintiffs for the construction of the flats. The first defendant in the year 2001, after the completion of construction of 13 apartments, had put up an unauthorized construction of approximately 1790 sq. ft., in open terrace which is common area earmarked for all the apartment owners. The first defendant have no right or authority to put up any unauthorized construction in the common open terrace. While so, the 4th and 5th defendants regularized the unauthorised construction without following the Rules. The first defendant received the entire sale consideration from all the flat owners for the entire suit property but failed to convey to some of the flat owners the undivided share of the land in proportion to the plinth area of the apartments. Now the plaintiffs understand that the first defendant is attempting to sell away the unauthorised construction put up in the terrace portion with the un-conveyed, undivided share illegally retained by her. When the Flat Owners' Association through letters dated 26.12.2006 and 02.01.2007 questioned the first defendant’s locus-standi and called upon to furnish all the documents relating to the property, the first defendant sent a letter dated 08.02.2007 by enclosing some documents along with her explanation, claiming right to the open terrace. The first defendant claims right to unauthorised construction in the terrace portion on the basis of the Clause included in the promoters agreement entered with each of the flat owners. According to her, the alleged Clause gives right to the promoter/first defendant to reserve and claim the exclusive right to the common open terrace portion and right to put up additional construction. But the said Clause is contradictory to the other Clauses and the same are against the provisions of the Tamil Nadu Apartment Ownerships Act,2022 and opposed to Section 23 of the Contract Act. The first def