S MARIMUTHU Vs. G KUMARASWAMY

JUDGEMENT

(1.) THE suit was filed before the City Civil Court, Madras on 5.9.1991 and numbered as O.S. No. 6725 of 1991. It was withdrawn to this Court as per judgment in Writ Appeal Nos. 1262 and 1263 of 1994, which are also proceedings between the plaintiff and the first defendant in this case.

(2.) A total extent of 5 "Manais" and 477 "Kulies" in Survey No. 3814, Teynampet, Madras originally belonged to one Appan, as per sale deed, dated 7.6.1957. The purchaser converted the same into several plots situated on the western and eastern sides of Kamarajar Salai, Madras. A portion of the layout is marked as Ex. A-28 in this case. Ex. A-28 is in respect of Plot Nos. 6, 7 and 8 situated on the western side of Kamarajar Salai. The purchaser sold the entire Plot No. 6 in favour of one Prema under registe red sale deed dated 16.11.1973. He also sold the entire Plot No. 8 on 5.12.1979 as per Ex. A-29 to the first defendant in this case.

(3.) NOW I will give the circumstances which necessitated the filing of the suit. The first defendant who is the owner of plot No. 8 has his property on the western side of the plaint schedule. He claimed to be in possession of a portion of the plaint schedule property also. It is said that the first defendant was in possession of a portion of the plaint property on the western side, and the plaintiff herein trespassed into that portion on 8.8.1981 and he initiated proceedings under S. 6 of the Specific Relief Act. He filed O.S. 1584 of 1981 before the City Civil Court, Madras, for recovery of possession. After taking evidence, that suit was dismissed, against which he preferred a Revision before this Court as C.R.P. No. 1382 of 1985. The Revision was allowed, and this Court held that the plaintiff is a trespasser and that he has actually committed trespass on 8.8.1981. He was directed to hand over possession to the first defendant, and cost was also allowed. The order of this Court is dated 5.7.1991. It is subsequent to the order in the Civil Revision Petition, the present suit is filed for declaration of title and consequential reliefs. It is averred in the plaint that the plan attached to Ex. A-1 does not correctly state the extent of the property conveyed to Ranganathan and the mistake in the plan was repeated in the subsequent documents including Ex. A-3 purchased by the plaintiff. According to him, in Ex. A-1 plan, the total extent conveyed is noted as 890 sq. ft. whereas it is really 1073 sq. ft. According to him, the recital in the sale deed and the plan are inconsistent and, therefore, it requires rectification. Along with the plaint, he has also produced a rough plan wherein he has noted the measurement which he is entitled to as per Ex. A-3 sale deed. It is further averred that after the purchase, plaintiff started an additional construction on the western side to an extent of 20 ft. "23 ft. excluding a portion as open space. The same was objected by the first defendant and he filed O.S. No. 5884 of 1981. It is further alleged that the plaintiff himself filed an earlier suit for a similar relief as O.S. 6295 of 1981, on the file of City Civil Court, Madras and he also filed another suit against the 4th defendant in this case, which is the Corporation of Madras, as O.S. No. 7824 of 1981. Both the suits were withdrawn by him, with liberty to file fresh suit on the same cause of action. It is further stated that even though he began construction without a plan, he thought that the construction made could be regularised and he was being assured by the Corporation that permission will be granted. In fact, the plaintiff further says that even though permission was granted, the same was revoked by the fourth defendant unilaterally and without hearing him and, therefore he has impleaded the 4th defendant also in this suit to get a relief of mandatory injunction directing it to issue a licence for the construction of the building. It is further averred that the third defendant has obtained some right under the first defendant and, therefore, be is also impleaded as a party to the suit. The reliefs that are sought in the plaint are as follows:-