V RAGHAVAN Vs. K SWAMINATHAN

JUDGEMENT

(1.) The unsuccessful plaintiffs in both the courts below are the appellants herein, who have filed this second appeal, challenging the decree and judgment dated 04.12.2000 passed by the learned IV Additional Judge, City Civil Court, Madras, in A.S.No.101 of 1999, whereby the decree and judgment dated 29.01.1999 passed by the learned VIII Assistant Judge, City Civil Court, Madras, in O.S.No.3430 of 1991, were affirmed.

(2.) The appellants as well as one T.Venkata Ramanujam instituted the suit in O.S.No.3430 of 1991 against the respondents herein, for the following reliefs:

(3.) The case of the plaintiffs, in brief, is as follows: The plaintiffs are the owners of the residential plots in Ganesh Nagar, Kolathur, Madras, under the layout plan of house sites in S.Nos.9/1, 9/2 and 9/3-B and they are the residents in that locality. Originally the layout plan was approved by the Villivakkam Panchayat Union under LPDM/DTP 57/74. Subsequently, there was an alteration of the road to the existing approved layout and accordingly, the layout plan was approved and sanctioned by the proceedings of the Commissioner, Panchayat Union, Villivakkam dated 23.09.1975 and the layout has subsequently come within the limits of Corporation of Madras. The residential plots of the plaintiffs as well as the plots in the Ganesh Nagar lay out are assessed for Corporation tax by the 2nd and 3rd defendants. The 4th defendant is the promoter of lay out, who had purchased these lands measuring to an extent of 3 acres 11 cents in S.Nos.9/1, 9/2 and 9/3-B from One Muniyappa Naicker and Ponnusamy Niakcer under a sale deed dated 13.11.1975. Thereafter, the 4th defendant plotted out the lands and formed the lay out with residential units, roads and park. Under the approved lay out plan, there is an area on the southern side, which is conical in shape, and has a total extent of about 7248 sq.ft, which is earmarked as a common park for the benefit of the colony residents and it is the suit property and it cannot be used for any other purpose. While constructing the houses, the plaintiffs as well as the residents in that locality, are bound to follow the stipulations and regulations laid down by the 2nd and 3rd defendants. While so, during the first week of August, 1989, the 1st defendant, who is not a resident or a purchaser of a plot in Ganesh Nagar, trespassed into the suit property on the southern side of Ganesh Nagar and tried to put up a construction for the purpose of his residence and as such, the plaintiffs gave a complaint seeking police intervention as well as to the 2nd and 3rd defendants, but no actin was taken. Hence, they were forced to file a writ petition in W.P.No.13987 of 1989 for a mandamus to the 2nd and 3rd defendants to enforce the layout plan LPDM/DTP 57/74 by clearing and keeping the common roads and parks free from any interference and trespass. In the said writ petition, an interim injunction was granted on 12.03.1990 directing the Corporation to keep the common park free from any trespass by the 1st defendant and accordingly, the 2nd and 3rd respondents demolished the superstructure put up by the 1st defendant. Thereafter, on the application filed by the 1st defendant, the interim injunction was vacated and the plaintiffs were asked to approach the Civil Court. Hence, the present suit has been filed for the aforesaid reliefs stating that if the 1st defendant is allowed to trespass into the suit property and put up a superstructure, then the plaintiffs would be greatly affected and it would cause irreparable loss to them.