S. PERIASWAMY Vs. INDIA BUILDERS AND ORS.

JUDGEMENT

(1.) THE unsuccessful plaintiff in suit for permanent injunction and mandatory injunction has preferred the instant Second Appeal as against the judgment and decree dated 09.09.2008 passed in A.S. No. 38 of 2007 on the file of the learned IV Additional Judge, City Civil Court, Chennai, confirming the judgment and decree dated 24.07.2006 in O.S. No. 740 of 2004 passed by the learned XII Assistant Judge, City Civil Court, Chennai.

(2.) THE case of the plaintiff, who claims to have purchased the suit property measuring an extent of 681.8 sq.ft. as an undivided share described as 'B' Schedule property, from one Ramanathan, is that after purchase of the undivided share, he entered into a building contract with the first defendant on 01.3.2002 and that even prior to that he entered into a separate agreement for the total 'A' Schedule property as a selling agent. The second defendant is a partner in the first defendant firm. It is stated that the first defendant, who is a owner - cum - builder, raised four storied building in 'A' schedule property covering 1200 sq.ft. including the common area and that as per the building contract, the builder is to construct within fifteen months from the date of contract and as such, according to the plaintiff, the agreement stood terminated on 01.6.2003. The further case of the plaintiff is that even prior to that, 'B' Schedule property's possession was handed over to him and that after completion of the contract period, the builder ought to have left the premises. On the other hand, according to the plaintiff, the defendant has not left the 'C', 'D' and 'E' Schedule which come within the 'A' Schedule property. It is the further case of the plaintiff that as on 01.7.2003, he has been in absolute possession of 'B' Schedule property with '2 -A' covered car parking, which was allotted to him and handed over on 01.6.2003, with enjoyment of common entrance called lobby in 'C' Schedule property. The main grievance of the plaintiff is that even after the expiry of agreement on 01.6.2003 the defendants are continuing the construction work.

(3.) PER contra, the defendants filed written statement to the effect that the agreement dated 01.3.2002 refers only with reference to the construction of the flat and not entire complex that too, subject to the norms and conditions enumerated under the agreement and as such, the agreement has not been terminated. The case of the defendants is that the entire possession was not handed over as alleged by the plaintiff. It is stated that the agreement does not speak about the claim of the plaintiff in 'C' Schedule property ground floor common entrance and the other provisions like lift, drive way, etc. It is also the case of the defendants that originally there was no provision for forming the lobby and it was provided later on the western side. It is further stated that since the car parking area provided to flat 2 -B owner was inconvenient, they interchanged the scooter parking and shifted the lobby on the opposite side on the scooter parking area and that flat 2 -B owner was allotted the old lobby for car parking and only to relocate the same, marbles were removed. It is stated that all the 8 flat owners were provided with car parking area with lobby and if the grievance of the plaintiff is true in nature, according to the defendants, the other flat owners should have joined with the plaintiff raising the same objections. On these grounds, the defendants sought for dismissal of the suit.