The Purchaser purchased Ground Floor alone and while purchasing Ground Floor the Seller agreed not to construct Second Floor. But the First Floor Purchaser, planned to construct Second Floor and the Ground Floor Purchaser success before the Court

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IN THE CITY CIVIL COURT AT CHENNAI
Present: Thiru. K.Ravi, M.A., M.L.,
VIII Assistant Judge
Friday, the 27th
day of January 2017
O.S.No.6393/2014
1.Mr.M.Beer Mohamed, S/o.Mohamed Haniffa,
2.Mr.V.Jayaraman, S/o.Venugopal
3.Mr.Syed Dawood, S/o.Syed Ismail
Communication address is
No.34, Ramasamy Street,
Pulainthope, Chennai -600 012. ...Plaintiffs
/vs/
A.Syed Mossa, S/o.Azezullah,
No.36, Ramasamy Street,
Pulainthope, Chennai – 600 012. ...Defendant
This suit coming on 12.01.2017 for final hearing before me in
the presence of M/s.S.Ezhil Raj, Counsel for the plaintiffs and
M/s.K.Ilamparithi, counsel for the defendant and upon perusing the
documents on record and upon hearing the argument on both sides
and having stood over for consideration till this day and this court
delivered the following:
JUDGMENT
Suit for declaration that the sale deed dated 05.12.2013
document No.4786 of 2013 registered in the Sub-Registrar Office,
Purasawalkam in favour of the defendant in respect of Construction
above the First Floor Terrace in the schedule property is not binding on
the plaintiffs and for permanent injunction restraining the defendant,
his men, agents and henchmen or any one claiming through him from
interfering with the peaceful possession and enjoyment of schedule
property by the plaintiffs and for costs.

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2. The plaint averments in briefly as follows :-
The schedule property is measuring an extent of 730 sq.ft
and comprised in old Survey No.26, R.S.No.190/2, C.C.No.348, New
Door No.34, Old Door No.1 and 15, Ramasamy Street, Pulainthope,
Pursawakkam, Chennai- 600 012. The total extent of 730 sq.ft consists
of Ground Floor in which there are 5 shops with common passage and
Toilet. The passage and Toilet is being by used 5 shops owners and the
defendant the entire 1st
Floor is occupation, possession and enjoyment
in the capacity of absolute owner by the defendant property. The
plaintiff purchased 4 shops out of 5 and the absolute owner’s of the
property as per A schedule, B Schedule, C Schedule and D schedule
consist of 12’3”x9’3”=113.32 sq.ft., 12’3”x9’0”=110.25 sq.ft,
12’9”x8’9”-111.56sq.ft and 12’9”x8’3”-105.18 respectively. The
Common Passage and Toilet consist of 12’3”x5’1”=62.27 sq.ft and
5.2’5”x8’1”=41.98 respectively. The 4 shops purchased by plaintiff 1st
,
2nd
and 3rd
under various sale deeds from Ms.Sharon Bee and
Mr.S.Saravanan. Initiallly purchased from Ms.Sharon Bee vide the
document No.4194/2002 the four shops out of five shops jointly doing
same business by the plaintiffs. The Ms.Sharon Bee entered into an
agreement with plaintiffs, in which it is mentioned, neither Ms.Sharon
Bee shall not any construction over the terrace of 1st
Floor. The 2nd
purchase of 1st
Floor started construct over the terrace of 1st
floor, is
violating of the agreement. The first floor sold by Ms.Sharon Bee to the
Mr.Syed Muzakkir vide document number 4800/08 and the agreement
also specifically mentioned, the Common passage and Toilet in the
Ground Floor, entire First Floor and 100 sq.ft second floor already
constructed. Thereafter Mr.N.Syed Muzakkir sold to Mr.A.Syed Moosa
mentioned in the agreement vide document number 4768/2013
mentioned, the common passage and toilet in the Ground Floor, entire

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first floor and permitted to construct the second floor. The second
purchaser Mr.A.Syed Moosa is not binding on the plaintiff’s rights. The
plaintiffs are in absolute the possession and enjoyment of 4 shops out
of 5 shops in the Ground Floor along with the Common passage and
Toilet. The principle owner of the property Ms.Sharon Bee given the
written confirmation not to construct the first floor Terrace is binding on
the present owner Mr.A.Syed Moosa. The defendant two times
attempted to construct the first floor Terrace dated 07.07.2014 and
10.07.2014. The defendant attempts to construct the first floor Terrace
is unlawful and illegal. Hence the suit.
3. The Written Statement averments filed by the
defendant in brief is as follows:-
The suit filed by the plaintiffs in support of the suit praying
for declaration that the sale deed dated 05.12.2013, document
No.4786/2013 Registered in the SRO Purasaiwakkam in favour of the
defendant in respect of construction the first floor terrace in schedule
property is not binding on the plaintiffs and for grant of permanent
injunction, restraining the defendant, his men, servants, agents and all
henchmen or any one claiming through the defendant from interfering
with peaceful possession and enjoyment of schedule property by the
plaintiffs is read and perused by the defendant and the defendant do
not admit the avernments contained therein as they are not true and
correct. The suit itself is a frivolous one and the same is an abuse of
process of law and the suit is bad for misjoinder of parties for the
simple reasons the plaintiffs 1 to 3 are having the property as per the
documents mentioned in the plaint in respect of A, B, C, D property
Sale deed and the sale deed is not filed to show their right taken
interest of A, B, C, D Schedule property, it is rather shrouded immistery
the non filing of the Sale deed is liable to be dismissed liminin, when

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the suit itself is not maintainable in law, the plaintiff are not entitled to
any relief in the suit the same is liable to be dismissed with costs of the
defendant. It is pertinent to note that the 3rd
plaintiff at the time of
alleged sale deed is favour on 22.04.2014 from its vendor namely the
wrest while owner legal heirs on and sale deed copy would show the 3rd
plaintiff cannot in the absence of any specific mention of the property
purchase by plaintiff and annexure 1A and its not mentioned has the 3rd
plaintiff can join along with plaintiffs 1 and 2 for having distinct
property their favour by 3rd
plaintiff initially purchased from Sharonbee
and Saravanan mentioning document No.4194/2002. But the defendant
knowledge there are four documents for executed by Sharonbee on
same date about which there is no mentioning to plaint and it is note
worthy only the plaintiff but there is no word plaintiff as stated already.
The plaintiff are in absolute possession on enjoyment of four shops out
of five shops Regarding 5th
shop the owner Sharonbee Retaining the 5th
shop and entire first floor and second floor one Room and open terrace
at the time of sale and the plaintiff when its lifetime as per the
document number 4800/08 namely the settlement deed along with
settled in favour of grand son who in turn sold the property to the
defendant which is only attested copy and not registered copy and the
defendant being not aware of the alleged agreement of sale dated
28.8.2002 and it is again there is apparent error in the list of
documents giving in description regarding document No.1 as sale deed
dated 20.8.2002. But the plaintiff 1 to 2 have purchase by the sale
deed already stated no documents are filed, therefore the plaint is
liable to rejected in toto for want of pleadings and has already stated
since this sale deed being separate in the name of first and second
plaintiff and this also different property therefore a look at the cause of
action without disclosing the sale deed in favour. The plaint ought not

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have been numbered U/o 1 rule 10 cpc it is must to filed the present
suit order 1 rule 8 to file on representative capacity but this is not done
and the plaintiff is a derivative title holder cannot place reliant on the
document no.1 and is not a privy to the alleged agreement to have
been executed by the vendor and the defendant puts the plaintiff strict
prove the signature to taken subscriber by the Sharonbee and even
otherwise are admitted the agreement of sale i.e. document no.1 there
is no “conses ad ideam” and the agreement for want of the signature
of the contracting party namely 1 and 2 plaintiff and the suppression of
the agreement of sale dated 20.08.2002 would show there is no such a
document namely the agreement of sale said to have been executed
by Sharonbee. The plaintiffs is uneforceable after lapse of nearly 13
years and the absences of production of sale deed in favour of plaintiff
1 and 2 will not disclose the agreement nor under the annexure 1A the
sale deed 1 and 2 plaintiff cannot claim better right under their sale
deed has such the tall claim of the plaintiff for declaration and
permanent injunction is unsustainable in law and also the court fees
paid collectedly by the plaintiff distinct separate right to file a separate
suit and not clubbing together their alleged right to the present suit.
Lastly in the event of the sale deed dated 5.12.2013 impuned by the
plaintiffs cannot hold good. Since the defendant purchased by the
property consisting of entire first floor and in second floor one room
along with open terrace and common passage rights and there is no
question of relief and seeking declaration of entire property therefore
the relief is not properly couched about the alleged a right accrued to
the plaintiff under the alleged the document no.1 dated 20.08.2002 as
such the suit is dismissed for the reason. Hence prays for the
dismissal of the suit with the cost of the defendant.
4.On the basis of the pleadings the following issues

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were framed for trial:-
1. Whether the plaintiffs proves that the sale deed at
05.12.2013 is not binding or binding?
2. Whether the plaintiff is entitled to permanent injunction or
not?
5.On the side of the plaintiff, PW1 were examined and Ex.A1
to A7 were marked. On the side of the defendants, DW1 were
examined and Ex.B1 is marked.
6. Issue no.1 and 2:-
The plaintiff filed the suit for declaration declared the sale
deed dated 05.12.2013 in document no.4786/2013 of SRO,
Purasawakkam in favour of the defendant in respect of the construction
in the first floor terrace of the suit property is not binding on the
plaintiff.
7.The suit property is measuring an extent of 730 sq.ft. in
Survey no.26, R.S.No.190/2, C.C.No.348, New Door No.34, Old No.1 and
15, Ramasamy Street, Pulianthope, Purasawalkkam, Chennai-12.
8.Out of total extent of 740 sq.ft. consist of ground floor,
there are 5 shops and common passage, Toilet. The common passage
and toilet are used by 5 shop owners and the defendant the entire first
floor in occupation as absolute owner. The plaintiffs purchased 4 four
shops out of 5 shops 113.32 sq.ft., 110.25 sq.ft., 111/56 sq.ft.,
105.18sq.ft. respectively and the common passage is 62.27sq.ft., and
41.98sq.ft. Originally the plaintiff purchased the property from Sharon
Bee and the Sharon Bee at the time of purchase entered into an
agreement with the plaintiffs and neither Sharon Bee nor anybody
construction over the terrace of the first floor. The defendant who
purchased the first floor making arrangements to construct above the
terrace of the first floor. The defendant purchased under Ex.B1 only

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700 sq.ft in the first floor and 100 sq.ft. in the second floor and
common passage with toilet and undivided share of 370 sq.ft. alone
and after the sale deed no other extent was owned by the 1st
defendant and now the defendant attempted to construct in the
second floor more than the extent he purchased and it is against law.
Hence the suit.
9.Per contra the defendant counsel submitted that the
plaintiffs stated that out of 5 shops 4 shops are owned by them and
one shop is retained by Sharon Bee and entire first floor and second
floor one room and the open terrace at the time of sale during her
lifetime settled her grandson who inturned sold the property to the
defendant. The agreement of sale dated 20.08.2002 is not at all
executed by Sharon Bee and there is no such document of sale of
agreement by Sharon Bee and she never agreed to construct in the
second floor. Further after the Sharon Bee’s son sold the property to
the defendant what are the rights she has is derived by the defendant
and the defendant is entitled to construct in the second floor and the
suit has be dismissed.
10.On careful perusal of documents and submissions made
by both the counsels it is also admitted fact that Sharon Bee originally
owned by 730 sq.ft. which consist of 5 shops in the ground floor
common passage and toilet. Plaintiff purchased 4 shops and Sharon
Bee retained one shop and the first floor and the second floor one room
100 sq.ft was settled in favour of grandson was sold to the defendant
and as per Ex.B1 defendant purchased 700 sq.ft. in the first floor and
in the second floor 100 sq.ft. room and common passage in the ground
floor and the toilet. Out of 730 sq.ft. undivided share the defendant
purchased 370 sq.ft. alone and now the defendant claiming that he is
entitled to construct more sq.ft. in the second floor more than 100

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sq.ft. is not an acceptable one and hence the defendant is not entitled
to construct more than 100 sq.ft in the second floor and defendant is
not purchased the larger extent in the second floor. Hence the issues
are answered in favour of the plaintiff and the suit is decree as prayed
for with costs.
9.Issues No.3:-
From the foregoing discussions and reasons the plaintiff is
entitled for declaration that the defendant is not entitled to construct
in the second floor more than 100 sq.ft. Hence the issue is answered
accordingly.
In the result, this suit is decreed as prayed for with costs.
Dictated to Stenographer directly, computerized by her,
corrected and pronounced by me in the open court, this the 27th
day of
January, 2017.
VIII Assistant Judge.
Plaintiff's side witness:-
PW. 1 : M.Beer Mohamed
Plaintiff's side Exhibits:-
Ex.A1 05.12.2013 Certified copy of the Sale Deed
Ex.A2 22.04.2014 Original Sale Deed
Ex.A3 29.12.2008 Certified copy of the Settlement Deed
Ex.A4 24.06.2014 Original Encumbrance Certificate
Ex.A5 25.07.2014 Copy of the Reply Notice
Ex.A6 06.07.2014 Copy of the Legal Notice
Ex.A7 17.12.2002 Original Sale Deed
Defendant's side witness:-
DW.1 : A.Syed Moosa
Defendant's side Exhibits:-
Ex.B1 05.12.2013 Certified copy of the Sale Deed in
Document No.4786/2013 executed by
Syed Muzakkir in favour of Syed Moosa
VIII Assistant Judge

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Draft/Fair Judgment
O.S.No.6393/2014
27.01.2017.
VIII Assistant Court.