J U D G M E N T

The suit is filed for declaration, mandatory injunction, damages and for permanent injunction.

2.The case of the plaintiff association is that there are totally 77 flats in the front side and three flats on the rear side of the property. All the members formed an association called as M/s.B.B.C.Spring Field Flats Association. 'A' schedule property originally belongs to K.Kumarasamy. K.Kumarasamy gave the entire 'A' schedule property for development and sale to the 12th defendant, who promoted flats and sold to the members of the association. The extent of the property belong to K.Kumarasamy was approximately 18 grounds and 58 sq.ft. K.Kumarasamy died on 23.09.1993, leaving behind his wife, son and daughter, who are the defendants 7, 8 & 9. Initially, the application for sanction plan was made by defendants 7 & 8 through the 12th defendant. The plan sanction was obtained by the owners and promoters for the entire property. Larger area of vacant space was left for car parking. The planning authorities, namely, the defendants 10 & 11, sanctioned planning permission for the development of the entire property of 18 grounds and 58 sq.ft, in two blocks. Initially, sanction was given for ground and three floors. Thereafter, additional construction of four floors was made and applied to Government for regularization of all seven floors. The Government passed an order in G.O.M.S.No.79, dated 08.02.1994, regularising the ground plus seven floors. The owner and the builder had put up an unauthorised construction of a dividing wall in between the front portion and rear portion. There is no dividing wall in the sanction plan, dated 20.06.1990. The flat owners, who are residing in the front portion, directed the builder and the owner to remove the unauthorised construction in order to utilise the back side open space for car parking.

3.The sale deed executed by the defendants 7 to 9 clearly indicates that the entire 'A' schedule property was used for promotion of flats. The developers by obtaining the power of attorney from the original owners executed sale deeds in favour of purchasers of flats, wherein, undivided share of land was sold to each flat owner from and out of 18 grounds and 58 sq.ft. The legal heirs of K.Kumarasamy, namely, his wife, son and daughter executed a sale deed in favour of the defendants 1 to 6 on 15.04.2005 for an extent of 8400 sq.ft. They do not have any right to convey the property to the defendants 1 to 6. The sale in favour of the defendants 1 to 6 is ab-initio void and it is a sham document. The defendants 1 to 6 in collusion with the 7th defendant put up a wall separating the single property into two blocks. On the rear side of the property, three flats had been built up with a total extent of 5500 sq.ft. The documents created by the 7th defendant i.e., two release deeds, dated 10.07.2003 and 09.02.2004, executed by K.Meera Kumarasamy and K.Vani Pratap in favour of the 7th defendant are not valid in law. The area left over around the three flats on the rear side is a common property and the plaintiff's members have right to utilise that area.

4.The defendants 1 to 7 had put up an unauthorised additional construction on the rear side of the flat. The writ petitions filed by the plaintiff in this regard in W.P.Nos.17220 & 17221/2005 were disposed off stating that the dispute is civil in nature. The Writ Appeal Nos.1472 & 1473/2005 were also disposed by this Court with a direction to the Commissioner, Corporation of Chennai. Therefore, this suit for the aforesaid reliefs claimed.

5.The case of the third defendant is that the entire extent of 18 grounds and 58 sq.ft belongs to K.Kumarasamy. There were buildings in the land. Front portion was occupied by the tenants and the bungalow was occupied by K.Kumarasamy along with his family. K.Kumarasamy entered into a joint development agreement with the 12th defendant. As per the agreement, front portion in the 'A' schedule property was permitted to be sold