✦ High Court of India · 25 Jun 2024

High Court · 2024

Case Details High Court of India · 25 Jun 2024

Court

High Court of India

Decided

25 Jun 2024

Bench

S S SUNDAR

Length

1,417 words

Acts & Sections

Constitution of India

WP.No.248/2024IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 25.06.2024CORAM :THE HONOURABLE MR. JUSTICE S.S. SUNDARANDTHE HONOURABLE MR. JUSTICE N.SENTHILKUMARWP.No.248/2024 & WMP.No.295/2024C.Shanmugham... PetitionerVs. 1.The Commissioner Greater Chennai Corporation Ripon Building, Chennai-03.2.The Zonal Officer Greater Chennai Corporation Zonal Office-12, Puthu Street, Alandur, Chennai-16.3.D.Ramesh4.C.Senthilkumar Chinnathambhi ... RespondentsPrayer : Writ Petition filed under Article 226 of the Constitution of India for issuance of Writ of mandamus directing the 1st and 2nd respondents to demolish the illegal construction put up by the 3rd and 4th respondents without obtaining necessary planning permission from the concerned 1 https://www.mhc.tn.gov.in/judis WP.No.248/2024authorities in S.NO.124, TS.No.17, bearing Door No.28, Bakthavachalam Nagar 1st Street, Nanganallur, Chennai 600 114 based on the petitioner's earlier representations dated 12.03.2022, 14.07.2023 24.07.2023 and further representation dated 25.09.2023. For Petitioner: Mr.P.SunilFor RR 1& 2 : Mr.D.B.R.Prabhu, Standing counselFor RR 3&4: Mr.D.UdhayakumarORDER[Order of the Court was made by S.S.SUNDAR, J.,](1)This writ petition is filed by a person claiming 1/4th share in respect of a property bearing Door No.28 in Bakthavachalam Nagar 1st Street, Nanganallur, Chennai-114.(2)Brief facts that are necessary for the disposal of this writ petition are as follows:(3)The petitioner claims that he is the absolute owner of 1/4th share in the property which is the subject matter of this writ petition. Except a preliminary decree that was passed in the suit for partition in OS.No.283/2010 on the file of Sub Court, Tambaram, the petitioner has not produced before this Court any other document or even the judgment in the suit for partition or the copy of plaint to suggest that the plaintiff 2 https://www.mhc.tn.gov.in/judis WP.No.248/2024has got 1/4th share. Equally, respondents 3 and 4 who have purchased the property from one Kanniammal who is also a party in the suit for partition, have not produced any document to prove their contention that they have purchased 1200 sq.ft., under two Sale Deeds obtained from the person who had title.(4)It is quite interesting to note that in paragraph No.3 of the affidavit, the petitioner has stated as follows:- ''3.I humbly submit that I am the absolute owner of 1/4 share in Survey No.124, TS.No.17, bearing Door No.28, Bakthavachalam Nagar 1st Street, Nanganallur, Chennai 600 114 to an extent of 600 sq.ft., as per preliminary decree in OS.No.283/2010 on the file of Hon'ble Sub Court, Tambaram. The other four co-owners are C.Boopathy, Agilandan, Kanniammal and Ponnammal.''(5)The petitioner though claims that he is entitled to 1/4th share, this Court is unable to reconcile his statement that there are four other co-owners. There is no indication in the pleading, how there are five share in the total extent of 2400 sq.ft., of land. The preliminary decree relied upon by the petitioner in OS.No.283/2010 declares the 1/4th share of the plaintiff by 3 https://www.mhc.tn.gov.in/judis WP.No.248/2024name C.Boopathy out of the total extent of 2400 sq.ft., plot. The contention of the petitioner is that respondents 3 and 4 who have purchased the share of Kanniammal who is only entitled to undivided 1/4th share of Smt.Kanniammal, cannot convey 1200 sq.ft., of land and therefore, the construction put up by respondents 3 and 4 in a specific portion of 1200 sq.ft., out of 2400 sq.ft., which is the subject matter of suit, is illegal. It is stated further that respondents 3 and 4 have not even obtained planning permission from the statutory authorities as required in law. Stating that respondents 1 and 2 have not taken any action against the unauthorised construction put up by respondents 3 and 4 despite the representation being given to the official respondents, the petitioner has approached this Court seeking the relief stated above.(6)The learned counsel appearing for respondents 3 and 4 submitted that respondents 3 and 4 are entitled to one-half share in the property without any basis. The petitioner as well as respondents 3 and 4 are claiming title to the property on the basis of documents without admitting the title of the plaintiff in the suit who has obtained a decree for partition of his undivided 1/4th share. In the final decree application filed by the plaintiff, 4 https://www.mhc.tn.gov.in/judis WP.No.248/2024an Advocate Commissioner is appointed. From the documents relating to the proceedings produced before this Court, this Court is of the view that the petitioner and respondents 3 and 4 are claiming title adverse to the plaintiff in the suit without even filing an appeal or challenging the preliminary decree which has become final.(7)The dispute between the petitioner and respondents 3 and 4 appears to be to the prejudice of the decree holder in the suit for partition where the preliminary decree for his 1/4th share has become final. A perusal of the documents produced by the petitioner as well as respondents 3 and 4 would show the intention of petitioner and respondents 3 and 4 to grab the property of other co-owners under the garb of this litigation between them without impleading the other co-owners.(8)The petitioner has produced before this Court, the Settlement Deed executed by him in favour of his wife in respect of one-half share on the basis of an unregistered Will. Similarly, respondents 3 and 4 have also claimed title to one-half share of the property on the basis of the Sale Deed from Mrs.Kanniammal as if the said Kanniammal had obtained a gift deed dated 26.08.1978 from the original owner in respect of one-half 5 https://www.mhc.tn.gov.in/judis WP.No.248/2024share. This Court has already seen that the petitioner and respondents 3 and 4 have not produced either the plaint or the expate judgment declaring the right of plaintiff in the suit. It is pertinent to mention that the Settlement Deed in favour of Smt.Kanniammal is an unregistered document written in the stamp papers with a total value of Rs.3/-. The same is therefore, inadmissible in evidence. Very strangely, the said Kanniammal later, by a document dated 27.07.2011, executed a Settlement Deed in favour of her husband without reference to the 1978 settlement. Later respondents 3 and 4 have obtained registered Sale Deeds dated 23.12.2021 from Tmt.Kanniammal and her daughters after the demise of the husband of Tmt.Kanniammal. Both petitioner and respondents 3 and 4 are claiming title to 1/2 share on the basis of unregistered documents. The Settlement Deed executed by petitioner in favour of his wife on 09.03.2007 is declared as null and void in the same suit in OS.No.283/2010. (9)The fact that the suit filed by the plaintiff is decreed would show that the claim of the petitioner as well as respondents 3 and 4 on the basis of 6 https://www.mhc.tn.gov.in/judis WP.No.248/2024fictitious documents, had not been projected before the Trial Court. In the said circumstances, this Court is of the view that the writ petition is filed with ulterior motive to defeat the rights of persons who are not parties in this lis.(10)Therefore, the writ petition stands dismissed with cost of Rs.1,00,000/- [Rupees One Lakh only] payable by the petitioner the State Legal Services Authority, High Court, Chennai within a period of four weeks from the date of receipt of a copy of this order.(11)The matter does not rest with the dismissal of the writ petition. Since this Court has found that equally respondents 3 and 4 are also to be blamed for the illegal construction, claiming exclusive right over the property in respect of which a preliminary decree had already been granted and the decree has become final, their construction is illegal.(12)When respondents 3 and 4 have suffered decree in the suit declaring undivided 1/4th share in favour of plaintiff in the suit and the exparte decree obtained in 2010 has become final, this Court has no hesitation to hold that respondents 3 and 4 cannot claim right over any specfici extent out of 2400 sq.ft.7 https://www.mhc.tn.gov.in/judis WP.No.248/2024(13)Therefore, respondents 1 and 2 are directed to treat the construction put up by respondents 3 and 4 as unauthorised. Even if permission is granted, the permission obtained by respondents 3 and 4 should be revoked and proceedings shall be initiated to pull down the structure. Respondents 1 and 2 shall also initiate appropriate action till its logical end and carry out demolition without further reference to the order of this Court in this proceedings, within a period of six months from the date of receipt of a copy of this order. Post after six months for reporting compliance. Consequently, connected miscellaneous petition is closed.[S.S.S.R., J.] [N.S., J.] 25.06.2024APInternet : YesTo1.The Commissioner Greater Chennai Corporation Ripon Building, Chennai-03.2.The Zonal Officer Greater Chennai Corporation Zonal Office-12, Puthu Street, Alandur, Chennai-16.COPY To:- The State Legal Services Authority, High Court, Chennai.S.S. SUNDAR, J., 8 https://www.mhc.tn.gov.in/judis WP.No.248/2024andN.SENTHILKUMAR, J.,APWP.No.248/202425.06.20249

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