B. Krishnan vs N. Swaminathan

A.C. Arumugaperumal Adityan, J.—Heard the learned Counsel for the appellant as well as the caveator and considered their submissions.

The Second Appeal has been preferred against the concurrent findings of the trial Court as well as the appellate Court as to the plaintiff is not

entitled to an order of permanent injunction.

The admitted case of the plaintiff is that he had purchased the suit property under Ex.A.1-sale deed. The learned Counsel for the appellant

would contend that he has got every right to enjoy the amenities like using the terrace in the first flour mentioned in Ex.A.1. It has been mentioned

in Ex.A.1-sale deed that 1/3rd undivided share in Schedule ''A'' property along with ground floor to an extent of about 625 sq.ft were conveyed in

favour of the appellante/purchaser. It is also specifically stated in Ex.A.1-Sale deed that since the Vendor/defendant has retained the first floor and

since the vendor/defendant has a proposal to modify the existing staircase or reconstruct or change the structure of the staircase to suit the first and

second floor approach at the existing location and it is not open to the purchaser or anybody to object the same.

It is seen from the judgment of the trial Court that as per Ex.B.3 (series) the terrace is situated in the first floor, being so, if an injunction is

granted then it will amount to indirectly allowing the plaintiff to enter into the house of the defendant, which will affect the privacy of the defendant.

The learned Counsel for the respondent/caveator would contend that the substantial questions of law is u/s 3(h) of the Tamil Nadu Apartments

Ownership Act, 1994. But the plaintiff cannot take shelter under the said Act because the building in question is not an apartment. The learned

Counsel for the appellant also conceded that the said Act will not be applicable to the present suit. The learned Counsel for the appellant also

relied on the decisions reported in Sudhir Kumar and Others Vs. Baldev Krishna Thapar and Others, and 1968 Lab. I.C. 1086 (1 C.N. 246)

(Hadley v. Droitwich Construction Cr. Ltd.). But, both the cases cited above are not applicable to the facts of the case on hand. The first cited

case is in respect of Lease and Licence and the later case is under of Sale of Goods Act. Under such circumstances, I do not find any substantial

question of law to admit this second appeal.

In the result, the second appeal is dismissed. No costs. Consequently, connected CMP is also dismissed.