JUDGMENT

This Second Appeal is filed challenging the judgment of XVII Additional Judge, City Civil Court, Chennai in A.S.No.446 of 2018 confirming the judgment of the XIII Assistant Judge, City Civil Court, Chennai in O.S.No.3556 of 2014.

2. Respondents, through their power agents filed the suit for mandatory injunction directing the appellants/defendants their men, agents, servants, subordinates or persons claiming through them to remove all the superstructure put up over the B schedule property and handover the same to them; for the permanent injunction restraining the appellants/defendants from interfering in any way deal with the property, either by putting up any further construction or renovation work or inhabitation in the B schedule property and for costs.

3. The case of the respondents is that their mother Rukmani Ammal was alloted the land measuring an extent of 1216 sq.ft. by the Tamil Nadu Slum Clearance Board under the proceedings of the President vide Se-Mu.No.283/87,Che-/A,G/W.S.S-11 dated 13.10.1988. Through this proceedings the land was alloted under lease cum sale agreement in respect of Plot No.70,Door No.15, Cys Road, Sasthiri Nagar, Mangalapuram, Chennai – 600 012. Rukmani Ammal paid the entire sale consideration on 08.11.1989 to the Tamil Nadu Slum Clearance Board and obtained patta in her name. She allegedly sold 450 sq.ft out of 1216 sq.ft to the appellant's predecessors. She also sold another 168 sq.ft to one Mr.Kaliyamurthy. She was left with 598 sq.ft and in which, she put up a superstructure in 445 sq.ft and kept the remaining 153 sq.ft in the western side (back side) of her house as a vacant land. Rukmani Ammal died on 06.12.2010 leaving the respondents and they became the joint owners of A schedule property. The appellants are the adjacent owners of A schedule property. They erected concrete structure in their land along with the land of the respondents measuring an extent of 153 sq.ft. This portion is shown as B schedule property. Respondents lodged a police complaint on 21.11.2013 but the Police did not take any action. Respondents filed O.S.No.6743 of 2013 on the file of IV Assistant Judge, City Civil Court, Chennai for permanent injunction against the appellants. There was no interim injunction granted and therefore the appellants put up illegal construction over B schedule property. Therefore O.S.No.6743 of 2013 was withdrawn with a liberty to file a fresh suit. Thus, this suit is filed.

4. The case of the appellants is that, the suit filed without seeking the relief of declaration is not maintainable. Rukmani Ammal had also left behind a daughter named Sivakami as her legal heir. She is not impleaded as a party to the suit. Therefore, the suit is liable to be dismissed for non-joinder of necessary party. Rukmani Ammal settled an extent of 450 sq.ft in favour of her daughter Sivakami through a registered settlement dated 13.11.1989. The appellants purchased 450 sq.ft of land with superstructure from Rukmani Ammal and Sivakami on

17.06.1993. Since, there was no sale deed executed by the Tamil Nadu Slum Clearance Board in favour of Rukmani Ammal, the sale consideration was paid through a sale agreement dated 17.06.1993. On the same day Rukmani Ammal and Sivakami executed a General Power of Attorney in favour of the first appellant entrusting to him 450 sq.ft of property. At no point of time appellants included an extent of 153 sq.ft of the respondents' land, either on 21.11.2013 or any other date. Appellants did not encroach the property of the respondents. The allegation that appellants put up construction over the property of respondents is not correct and they put up their construction well within their property. There is no B schedule property exists as claimed by the respondents. The suit has no cause of action and liable to be dismissed.

5. The Trial Court framed the following issues for consideration:-

(i) Whether the claim of the plaintiffs that the defendants put up superstructure in a B sc