A suit for injunction and declaration in respect of a common passage with a right of ingress and egress is maintainable even if the plaintiff has sold the property in question to a third party.

CRP No.4452 of 2023

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 13.12.2023

CORAM :

THE HONOURABLE MRS. JUSTICE T.V. THAMILSELVI

Civil Revision Petition No.4452 of 2023

and

C.M.P. No. 26876 of 2023

---

N. Elango

... Petitioner

Versus

N. Manimaran

...Respondent

Civil Revision Petition filed Under Article 227 of Constitution of India,

praying to set aside the order dated 12.09.2023 passed in I.A.No. 3 of 2019 in

O.S.No. 4435 of 2016 on the file of the I Assistant City Civil Court, Chennai.

For Petitioner

:

Mr. M.Arunkumar

O R D E R

The petitioner has filed this revision petition to set aside the order dated

12.09.2023 passed in I.A.No. 3 of 2019 in O.S.No. 4435 of 2016 on the file of

the I Assistant City Civil Court, Chennai.

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CRP No.4452 of 2023

2. Heard, Mr. M.Arunkumar, learned counsel for the petitioner and

perused the materials available on record.

3.

Before the trial Court the defendant has preferred I.A.No.3 of

2019 under Order VII Rule 11 (a) read with Section 151 of CPC, to reject the

plaint in O.S.No.4435 of 2016, and the same was objected by the plaintiff

stating that there is no cause of action to file a suit and there is a common

passage between the properties of both the plaintiff and the defendant. Path

way gives a right to use the same as per the settlement deed executed by their

mother. Contrary to that, now the defendant has put up a construction. Hence

the plaintiff has filed a suit.

4. The learned counsel appearing for the defendant submitted that

already their was staircase in the said property, hence there is no need to put up

any further construction. In order to demolish the staircase the plaintiff has

filed a suit, so there is no cause of action. Further, he already pointed out that

the plaintiff sold the property in the year of 2018, after filing of the suit. Hence,

there is no locus standi to proceed with the matter. But the learned trial Judge

dismissed the said application, stating that admittedly, the property was sold by

the plaintiff to one Shanthi and she is in possession of the property, and the

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CRP No.4452 of 2023

mother of the plaintiff had executed a settlement deed in the year 2016 and

thereafter prayer was also amended with regard to declaration in respect of the

said settlement deed. Therefore, the plaintiff has sufficient cause of action to

proceed with the matter, accordingly dismissed the application. Aggrieved the

same the revision petitioner has preferred this revision.

5. The learned counsel for the revision petitioner submitted that the suit

was filed in the year 2016 by the plaintiff / respondent for the relief of

permanent injunction. Subsequently, a relief of declaration was added, dispute

is with regard to C-Schedule property mentioned as a common passage with a

right to ingress and egress. The revision petitioner and the plaintiffs are

brothers and as an admitted fact, the plaintiff has now sold the property to one

Shanthi but the dispute is with respect of common passage. According to the

revision petitioner, already there is a staircase and he has not made any

construction as alleged by the plaintiff. With regard to the common passage

which is under dispute and the right of the parties can be decided only at the

time of trial. Therefore, the reason assigned by the revision petitioner as such is

not maintainable. The learned trial Judge has rightly concluded the

proceedings, which needs no interference by this Court.

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CRP No.4452 of 2023

T.V.THAMILSELVI, J.

rri

6. Accordingly, this Civil Revision Petition is dismissed. Consequently,

connected miscellaneous petition is closed. No costs.

13.12.2023

Index : Yes/No

Speaking/Non Speaking order

Neutral Citation:Yes/No

rri

To

1. The I Additional Judge, City Civil Court,

Chennai.

2.The Section Officer,

VR-Section, High Court of