Co-owners of property cannot unilaterally alter communal areas without consent, and such alterations can be contested by other co-owners.

The Honourable Mrs.Justice K.GOVINDARAJAN THILAKAVADI Second Appeal No.742 of 2019

1. Raja Mohamed

2. A.Syed Abuthakir

3. A.Abdul Kalam Azad

4. A.Mohamed Ismail .. Appellants versus H.Bawa Nainar .. Respondent Prayer: Second Appeal is filed under Section 100 CPC, praying to set aside the judgment and decree dated 31.01.2019 made in A.S.No.252 of 2018 on the file of XV Additional City Civil Judge, Madras, confirming the judgment and decree dated 13.02.2017 in O.S.No.6436 of 2015 on the file of XIII Assistant Judge, City Civil Courts, Chennai.

For Appellants : Ms.V.Srimathi For Respondent : Mr.M.Balasubramanian JUDGMENT This Second Appeal arises out of the judgment and decree dated

31.01.2019 in A.S.No.252 of 2018 passed by the learned XV Additional City Civil Judge, Madras, confirming the judgment and decree dated 13.02.2017 in O.S.No.6436 of 2015 passed by the learned XIII Assistant Judge, City Civil Courts, Chennai.

2. The unsuccessful defendants before the Courts below, are the appellants herein and the respondent herein is the plaintiff.

3. For the sake of convenience, the parties herein after referred to as per their nomenclature before the trial Court.

4. The case of the plaintiffs is that one Thiru A.Shameem Ahamed owned land and building bearing D.No.20/47 (Old D.No.54), Anderson Street, George Town, Chennai-01, measuring total extent of 1452 sq.ft. together with ground plus two floors. The petitioner along with his wife, purchased a shop in the ground floor measuring 272 sq.ft. along with 91 sq.ft. UDS under a registered sale deed, dated 27.10.2014. The defendants 1 and 2 herein also purchased 226 sq.ft. UDS together with first floor of the building to an extent of 652 sq.ft. by a registered sale deed dated 9.4.2015 and also the defendants 3 and 4 purchased 226 sq.ft. of UDS first floor building to an extent of 660 sq.ft. The defendants 1 to 4 have also taken the ground floor portion on lease and second floor and carrying on their business under the name and style “Sabina Stationeries”. While so, the defendants 1 to 4, without having any right or authority and without any planning permission, illegally put up third floor and partly constructed the fourth floor despite the protest made by the plaintiff. The said construction would diminish the value of the UDS held by the other co-owners. Further, in a commercial complex, well, staircase and open terrace should be used in common by all the co-owners, but the defendants reduced the space of the staircase and prevented the plaintiff to visit the terrace without recognizing him as a co-owner. Therefore, the plaintiff lodged a complaint with the local police, who, in turn, suggested the plaintiff to approach the Civil Court. Hence the suit.

5. Resisting the suit, the defendants 1 to 4 filed a written statement, inter alia, stating that they are the owners of the property only in respect of the first floor of the building and the plaintiff's right is limited over the shop on the ground floor along with UDS of 91 sq.ft. only and there is no common area to be enjoyed by the co-owners of the property and no right has been given to him over any common area in the premises and to use the staircase. The defendants have taken the premises situated on the ground floor, second floor and third floor for rent and they did not put any construction, in the third floor and fourth floor and it had been constructed only by the original owner of the property. The property is not a commercial complex and therefore, the staircase and open terrace are not common to use. The defendants carried out alteration of the existing staircase which has been used to go from ground floor to the first floor with the permission of the origi