Unauthorized construction on common property violates rights of ownership, and a continuing wrong allows for legal action regardless of time elapsed since the breach.

JUDGMENT

This Appeal had been filed to set aside the Judgment and Decree dated 17.06.2014 passed in O.S. No. 11802 of 2010 on the file of the learned XIX Additional District Judge, City Civil Court, Chennai.

2. The Appellants are the Plaintiffs in the Suit in O.S.No.11802 of 2010. The Suit was filed in the Original Side of this Court as C.S. No. 443 of 2009 and subsequently it was transferred to the file of the City Civil Court, Chennai due to enhancement of pecuniary jurisdiction of the District Courts as per Act 9/2010. Upon transfer, the case was re-numbered as O.S.No.11802 of 2010.

3. The Suit was filed by the Plaintiffs seeking mandatory injunction directing the first and second Defendants to remove the offending construction both permanent and temporary put up on the open terrace (common area) of the multi storey building viz., BSV Villa, New No.42, Kilpauk Garden Main Road, Chennai; for permanent injunction to restrain the Defendants from in any manner interfering with the Plaintiffs access, use and enjoyment of the open terrace and for costs.

4. For the sake of convenience, the parties to this Appeal shall hereinafter be referred to as “Plaintiffs” and “Defendants” as per their rank in the suit before the trial Court.

5. The averments of the Plaintiffs, set out in the Plaint, are briefly as follows:-

5.1. The First Defendant developed a multi storied residential building on a land owned by the Defendants. The multi storied building comprising of Ground +3 floors with a total built up area of 7806 sq. ft. was constructed on the plot measuring 5031 sq. ft. at New No.42. Kilpauk Garden Main Road, Kilpauk, Chennai. The building consists of 8 dwelling units. Defendants sold 4980 sq. ft. of divided share in the land to the Plaintiffs 1 to 7 and to the predecessor in title of the 8th Plaintiff under separate sale deeds. There were separate agreements for construction between the first Defendant and Plaintiffs and predecessor in title of the 8^th Plaintiff. The sanctioned plan for the residential building was obtained by the Defendants to construct ground and three floors. It is also permitted to construct the generator room and lumber room and 242.250 sq.ft. on the terrace for the head room. Even though the actual extent of the plot is only 5031 sq.ft. the Defendants claimed that the total extent of land was 5442 sq.ft. As per the sanctioned plan, the extent of undivided share that remains with the Defendants is only 5031–4980 = 51 sq. ft. The open terrace was part of the common area for the uninterrupted enjoyment and use of the Plaintiffs. Contrary to the sanctioned plan, the first Defendant illegally constructed 850 sq. ft. on a portion of the open terrace and sought to regularize the illegal construction under the Regularisation Scheme announced by the CMDA. The illegal construction of the first Defendant in the open terrace is part of the common area which is liable to be removed. The Defendants have started construction activity on the open terrace in the month of April and on enquiry it was learnt that the Defendants are trying to sell the illegal construction on the open terrace along with the Defendants undivided share to some third party. Already the Defendants have sold 4980 sq.ft. of undivided share out of 5031 sq.ft. The illegal construction occupies almost 70% of the open terrace infringing on the Plaintiffs' right of access and enjoyment of the open terrace. The Defendants have no right to usurp the terrace which is a common area available for equal enj