A co-owner cannot obstruct a common passage, and the appropriate limitation period under the Limitation Act was correctly applied.

JUDGMENT

Heard.

2. This second appeal is filed by the defendant in A.S. No.503 of 2009. It challenging the concurrent judgments by which the first appellate court (II Additional Judge, City Civil Court, Chennai) dismissed the appeal on 22.04.2013 in A.S.No.503 of 2009 and thereby affirmed the judgment and decree of the trial court (V Assistant Judge, City Civil Court, Chennai) in O.S.

No.3579 of 2006 dated 03.12.2008

3. For convenience, the parties are referred to as they were arrayed before the trial court.

4. The plaintiff instituted the suit seeking a mandatory injunction and a permanent injunction in respect of a common passage. She stated that she resides at Door No.4/2, Appu Street, Nungambakkam, Chennai–600034, and that the defendant resides at Door No.4/1 on the same street. She traced the title to Nagarathinam Ammal under a sale deed dated 30.06.1923, followed by a settlement deed dated 23.11.1968 in favour of five persons, including Lakshmi Kanthammal (the defendant’s mother) and Rajamanickammal (the plaintiff’s grandmother). She also referred to Rajamanickammal’s death on 18.04.1977 and the subsequent devolution of her interest.

5. According to the plaintiff, the partition deed dated 28.03.1990 divided the properties into five portions. She was allotted Schedule “A” (Door No.4/2), the defendant was allotted Schedule “B” (Door No.4/1), and a common passage measuring about 500 sq. ft., described as Schedule “C”, runs along the eastern side for common use and for access from Appu Street.

6. The plaintiff’s grievance is that the defendant encroached upon Schedule “C” by putting up constructions and projections, particularly on the eastern side of Door No.4/1. She alleged that this work was commenced on the night of 21.03.2006 when she was away. She stated that she lodged complaints on 22.03.2006 with the F3 Nungambakkam Police Station and with the Assistant Engineer, Corporation of Chennai (Division 73), but that no effective action was taken. Contending that the encroachment obstructed access and affected light and air, she sought a decree directing removal of the encroachment and a permanent injunction restraining any further construction in the common passage.

7. The defendant contended that the plaintiff had not come to court with clean hands and had suppressed material particulars, particularly regarding when the alleged construction was put up. He denied that any recent construction was commenced on 21.03.2006. He further asserted that the plaintiff herself had erected sunshades and a two-floor balcony projection over the common passage, and therefore was not entitled to discretionary relief.

8. He maintained that the passage is meant for common use and that his construction does not obstruct free ingress and egress. He also contended that the plaint is vague about the nature, height, and extent of the alleged projections, and that the allegation of obstruction is only imaginary.

9. He further relied on an alleged family understanding or arrangement among the co-sharers under which sunshades or roofing could be put up so long as there was no obstruction. He asserted that the construction began in July 2003, not in 2006, and that it followed the line of an earlier compound wall. He also referred to a suit filed by neighbours in O.S. No.4109 of 2003, which was dismissed on 20.01.2006, and claimed that the present suit was filed only to harass him. In addition, he raised objections regarding maintainability, including the contention that declaratory relief and appropriate court-fee were required, and he disputed the correctness