CHELLAM IYER Vs. J RANGANATHAN

JUDGEMENT

(1.) THIS Appeal has been directed against the dismissal order passed by a learned Single Judge of this Court in O.A. No.659 of 2007, an Application seeking for temporary injunction restraining respondents/defendants 1 to 4 their man, agents servants, or any one claiming under them or acting on their behalf from in any way interfering with the peaceful possession and enjoyment of the Schedule `C' property inclusive of the Schedule `A' property either by using as a passage or in any other manner whatsoever pending Suit and ordering of the Application in A. No.4581 of 2007, an application to vacate the interim injunction passed by the learned Single Judge in O.A. No.659 of 2007 in which the interim injunction was granted.

(2.) THE brief facts as submitted by both the parties before the learned Single Judge of this Court are as follows :

(3.) HEARD the learned Senior Counsel Mr. T.V. Ramanujam, appearing for the appellants/applicants and Mr. M. Krishnappan, learned Senior Counsel appearing for the respondents. Mr. T.V. Ramanujam, learned Senior Counsel would submit in his argument that the Suit was filed by the applicants seeking for a declaration that the plaintiffs are the co-owners of the property described in "A" Schedule comprising "C" schedule property along with defendants 6 to 9 as co-owners and consequently injunct the defendants 1 to 4, their men or agents or their servants from in any way interfering with the peaceful possession and enjoyment of the property, more fully described in the `C' Schedule either by forcibly entering into the same or in any other manner whatsoever and consequently, to direct the 5th defendant, the Corporation of Chennai to demolish the unauthorized construction which has been put up in the property of defendants 1 and 2 on the eastern side of the `A' Schedule property ( which includes `C' Schedule property) and for costs. He would further submit that the Suit was necessitated since the defendants 1 to 3 had performed the "Boomi Pooja" for commencing the construction in the property belonging to them lying on the eastern side of the `C' Schedule property and were carrying the construction materials by entering into the `C' Schedule property and unload those materials in Schedule property and, thereafter, on 12.04.2007 the defendants 3 and 4 had, with rowdy elements, broke open the lock of the big gate put up by the plaintiffs and the defendants 6 to 9 in the `C' Schedule property and highhandedly trespassed into `C' Schedule property and started putting up construction in their land. He would further submit that the defendants 1 to 4 have no right in the `A' Schedule property which comprises of `C' Schedule property, which is lying immediately on the western side of the property belonging to the defendants 1 and 2. He would further draw our attention that the `A' Schedule property and the property belonging to the defendants 1 and 2 were originally belonging to the common vendor namely Mrs. Thangam, she had sold the property to the plaintiffs and the defendants 6 to 9 with respective undivided interest in the landed property shown in `A' schedule property along with the apartments built in `A' Schedule property and the defendants 6 to 9 are the co-owners of the plaintiffs/applicants and any one of the co-owners is entitled to protect his or her right over the property since each of the co-owner of `A' Schedule property is entitled to be in possession and enjoyment of the entire `A' Schedule property as an undivided interest in the vacant site has been purchased by them from the common vendor. He would further submit that the defendants 1 and 2, purchased the property lying adjacently east of `A' schedule property in respect of and portion with specific boundaries, and are entitled to only the right in the property apart from the common pathway, which is lying on the south of the `C' Schedule property and the defendants 1 and 2's portion of the property, till Dr. Range road. He would also draw the attention of the Court that the boundaries mentioned in the title deeds executed by the common vendor in favour of the plaintiffs and defendants 6 to 9 on the one hand and the title deeds in favour of the defendants 1 and 2 on the other hand would show that the adjacent boundaries namely eastern boundary as that of the defendants 1 and 2 in the sale deeds 6 to 9. The western boundary of property belonging to the defendants 1 and 2 in their sale deed was shown as `C' Schedule property and, therefore, both the parties cannot claim more than the property described within the boundaries either on the eastern side or western side respectively. He would further submit in his argument that the rough sketch filed along with the plaint would go to show that the defendants 1 and 2 are having a small gate facing the common pathway leading to Dr. Ranga Road and through which gateway they have to ingress and egress and they cannot ask for more property for their access through the property belonging to the plaintiffs and defendants 6 to 9. He would also submit that the claim of the defendants 1 and 2 that common vendor Mrs.Thangam had retained an extent of 84 sq. ft. and had sold the property of 6,091 sq. ft. only to the plaintiffs and defendants 6 to 9 out of the total extent of 6,175 sq. ft. and, therefore, the plaintiffs and defendants 6 to 9 cannot claim more than that of 5,091 sq. ft., hold water because the boundaries as shown in the title deeds of the plaintiffs 1 and 2 and defendants 6 to 9 would show eastern boundary as that of the portion of the vendor Mrs. Thangam which was sold subsequently to the defendants 1 and 2. Therefore, he would urge that the boundaries will prevail over the measurements when the dispute has arisen in between the boundaries and extent conveyed by the vendor. He would also cite an authority reported in between Kuppuswami Naidu v. Krishnasami Naidu, 2004 (5) CTC 344, a judgment of this Court in support of his specific case.