V SUNDARI Vs. JAYALAKSHMI

JUDGEMENT

(1.) THIS appeal has been preferred against the Judgment and decree in A. S. No. 133 of 1995 on the file of the II Additional Judge, City Civil Court, Chennai. The plaintiffs, who got a decree for mandatory injunction in respect of the plaint schedule property which is a comman passage, but lost their defence before the first appellate Court are the appellants herein.

(2.) THE averments in the plaint in brief for the purpose of deciding this appeal sans irrelevant particulars are as follows: the suit is for an order of mandatory injunction for removal of a new construction put up by the first defendant in the suit property which is marked as "aefd" a common passage and for an order of permanent injunction. The plaintiffs have purchased the suit property situate at door No. 2, Krishnapuram Street, Choolaimedu, Chennai-600 094 through registered Documents 5231/80 and 5233/80 respectively from defendants 2 to 8. As per these documents, there is a common passage measuring north to south on the eastern and western side 93 feet and east to west on the northern and southern side 10 feet as shown in the plans annexed to the plaint. The said common passage belongs to the first and second plaintiffs and not defendants 2 to 8. From the date of purchase by the plaintiffs, they have been in use and enjoyment of the said common passage.

(3.) THE first defendant in his written statement would contend that with the malafide intention of causing hardship and inconvenience to this defendant, the plaintiffs have filed the suit. This defendant is the absolute owner of the property bearing Door No. 2/a, Krishnapuram Street, Choolaimedu, Madras comprised in Block No. 21, S. No. 73/part present TS. No. 73/2 with right over the common passage. This defendant has constructed the building well within their property and she is in enjoyment of the same. The plaintiffs are not in use and enjoyment of the common passage. It is not correct to say that this defendant encroached on the common passage as alleged in the plaint. At the time of constructing the compound wall and gate, the plaintiffs have not raised any objection. The plaintiffs are not the owners of the common passage and the defendants 2 to 8 are the absolute owners. The defendants 2 to 8 have not colluded with this defendant in putting up the compound wall and the gate. The plaintiffs had no right in respect of the suit property shown as "efad" in the plaint schedule. The portion marked as "efad" in the rough sketch belongs to the first defendant who has purchased the same under a sale deed. With an idea of causing hardship to this defendant and blackmailing her, the plaintiffs have issued a lawyer's notice dated 4. 6. 1985 which was suitably replied by this defendant. The first defendant has put up a compound wall and gate on her patta land and she is absolute owner of the same. The plaintiffs have no manner of right, title or interest over the place where this defendant has put up the gate. She constructed the compound wall in the year 1982. The plaintiffs have issued a notice in the year 1985 with malafide intention. It is not true that the common passage is being used by the plaintiffs and defendants 2 to 8. This defendant has not encroached on the common passage and constructed a compound wall and gate as alleged in the plaint. The suit is barred by limitation. There is no cause of action to file the suit. Hence the suit is liable to be dismissed with costs.