N RANGARAJAN Vs. LAKSHMI KRISHNAN

JUDGEMENT

(1.) THE plaintiff in O.S.No.2374 of 1979 on the file of the 17th Assistant Judge, City Civil Court, Madras, is the appellant in the Second Appeal. THE defendants 1 to 5 in the said suit are the respondents 1 to 5 in this Second Appeal. For the sake of convenience the parties are referred to by the nomenclature given to them in the suit.

(2.) THE plaintiff's suit is for declaration that the garage in A Schedule property is the common property of the plaintiff and his co-owners of other flats and for directing the second defendant to deliver possession of the garage to the plaintiff and other co-owners and for grant of permanent injunction restraining the first defendant from in any way dealing with the garage contrary to the covenants in the sale deeds and against the second defendant from in any way obstructing the plaintiff from using the garage with his undivided l/4th share in the land out of 2 grounds and 1,650 sq.ft. THE case of the plaintiff is as follows: THE house and ground bearing door Number 12 (old Door No.26), Thiruvengadam Street, described in A schedule, originally belonged to the father of the first defendant. He had transferred the same by a deed of gift dated 21.3.1972 to the first defendant under a registered document in the year 1972. THE first defendant sold to the plaintiff and four others the land and flats marked A to E by separate sale deeds for the consideration recited therein and put them in possession. THE plaintiff has purchased an undivided l/4th share in the land out of 2 grounds and 1,650 sq.ft. and one self-contained flat A in the first floor described in B schedule under a registered sale deed dated 21.8.1978 for a total consideration of Rs.60,000. Four others also purchased the other flats along with their l/4th,l/4th, l/8th and l/8th share in the land out of 2 grounds and 1,650 sq.ft. Ever since the date of purchase, the plaintiff has been in possession and enjoyment of flat 'A'along with the undivided l/4th share in the said land out of 2 grounds and 1,650 sq.ft. with all amenities, easements, rights of way etc. in common with the other co-owners. THE plaintiff and his co-owners, the purchasers of the other flats are jointly enjoying the common amenities including the garage according to their respective sale deeds. THE second defendant, with the connivance, of the first defendant, clandestinely and without the consent of the plaintiff, trespassed into the property and occupied the garage claiming to be the tenant in the garage under the first defendant. THE first defendant has no right over the garage and therefore, the second defendant, who wrongfully, trespassed and occupied the garage on 9.2.1979, without the consent of the plaintiff is in wrongful possession of the property.

(3.) ON the other hand, Mr.M.N.Padmanabhan, learned counsel for the defendants 1 and 2 would contend that it is provided under Sec.8 of the Transfer of Property Act that unless a different intention is expressed or necessarily implied, a transfer of property passed to the transferee, all the interests which the transferor is capable of passing in the property But, in the present case Annexure 1-A attached to the sale deeds Exs.A-1 to A-5 shows that the intention of the parties is to exclude the garage and in such circumstances, the principles laid down in Sec.8 of the Transfer of Property Act will not apply. A perusal of Annexure 1-A attached to the sale deed Ex.A-2 shows that the intention of the parties to the sale deed is not to include the superstructure of the garage in the sale deed Ex.A-2 and in these circumstances we cannot hold by applying the principles laid down in the above decisions based on Sec.8 of the Transfer of Property Act that the superstructure of the garage is also transferred along with the land in the ASchedule, to the plaintiff, defendants 3 to 5 and the other co-owner K.R.Shantha under Exs.A-1 to A- 5. An examination of the sale deed Exs.A-1 to A-5 shows that the entire extent of land measuring 2 grounds and 1,650 sq.ft. described in the A Schedule, which include an extent of 210 sq.ft. over which the garage is put up has been sold by the first defendant to the plaintiff, defendants 3 to 5 and the other co-owner K.R.Shantha. But, the superstructure of the garage alone is not conveyed by the first defendant under Exs.A-1 to A- 5. This leads us to the conclusion that the first defendant cannot convey any title to the land measuring 210 sq.ft. over which the superstructure of the garage is put in A Schedule to the second defendant under Ex.A- 6. But, the first defendant can convey good title only to the superstructure of the garage to the second defendant under Ex.A-6 inasmuch as the superstructure of the garage is not included in the sale deeds Exs.A-1 to A-5.As already stated, inasmuch as the second defendant has no title to the land measuring 210 sq.ft. over which the superstructure of the garage is put up, the only right available to the second defendant is to remove the superstructure as a purchaser of the superstructure alone under Ex.A-6.