IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 22ND SEPTEMBER 2008 / 31ST BHADRA 1930 WP(C).No. 27825 of 2008(K) -------------------------- CMA.46/2008 of II ADDL. DISTRICT COURT, TRIVANDRUM OS.244/2008 of II ADDL. MUNSIFF'S COURT,TRIVANDRUM .................... PETITIONERS: --------------- 1. BHANUMATHY, VARUVILAKATHU VEEDU, PALLIMUDUKKU LANE, PETTAH, VANCHIYOOR VILLAGE, THIRUVANANTHAPURAM. 2. MAHESWARI, T.C.30/1032, PALLIMUDUKKU LANE, PETTAH, VANCHIYOOR VILLAGE, THIRUVANANTHAPURAM. 3. ANITHA, T.C.30/1032, PALLIMUDUKKU LANE, PETTAH, VANCHIYOOR VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.D.SAJEEV RESPONDENTS: --------------- 1. SAROJANI, T.C.30/1034, VANCHIYOOR VILLAGE, THIRUVANANTHAPURAM. 2. GIRIJA, T.C.30/1034, VANCHIYOOR VILLAGE, THIRUVANANTHAPURAM. 3. GEETHA, T.C.30/1034, VANCHIYOOR VILLAGE, THIRUVANANTHAPURAM. 4. LALITHA, T.C.30/1034, VANCHIYOOR VILLAGE, THIRUVANANTHAPURAM. 5. N.SASI, T.C.30/1034, VANCHIYOOR VILLAGE, THIRUVANANTHAPURAM. 6. VIKRAMAN, T.C.30/1034, VANCHIYOOR VILLAGE, THIRUVANANTHAPURAM. W.P.(C) NO. 27825/2008 : 2 : 7. N.RAVI, T.C.30/1034, VANCHIYOOR VILLAGE, THIRUVANANTHAPURAM. 8. N.MANOHARAN, T.C.30/1034, VANCHIYOOR VILLAGE, THIRUVANANTHAPURAM. 9. PUSHPAVALLY, T.C.30/1034, VANCHIYOOR VILLAGE, THIRUVANANTHAPURAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR , J. ========================== W.P.(C). No. 27825 of 2008 ========================== Dated this the 22nd day of September, 2008. ORDER The writ petitioners are defendants 1, 4 and 6 in O.S. No. 244 of 2008 on the file of II Addl. Munsiff's Court, Trivandrum. The said suit is for setting aside the sale deed and also a family settlement deed and for partition. Pending suit, the plaintiffs applied for a temporary injunction restraining the defendants from effecting a construction in the property. Even though the trial court dismissed the said application, on appeal preferred before the District Court, Thiruvananthapuram, the learned Additional District Judge as per judgment dated 26.08.2008 in C.M.A. No. 46 of 2008 granted an injunction as prayed for. Hence this writ petition. 2. The learned counsel appearing for the petitioners/contesting defendants submitted that what was being attempted was only to re-construct the old building which was at the verge of collapse due to dilapidation and the present condition of the building is discernible from the report and plan of W.P.(C) No. 27825/2008 : 2: the commission. He also submitted that some of the plaintiffs in the present suit as well as the 1st defendant herein had filed an earlier suit as O.S. No. 1220 of 1999 before the Munsiff Court, Thiruvananthapuram and had obtained a decree for perpetual injunction restraining defendants 1 to 6 therein from constructing any new building in the plaint schedule property or committing any act of waste therein. The present defendants other than the 2nd defendant were not parties to the said suit. 3. I am afraid that I cannot agree with the above submissions. In the first place, it is the admitted fact that the property is the co-ownership property. It is also admitted that what is being attempted is not a renovation or repair of the existing building, but the construction of a new building in the place of the existing building. It is the admitted fact that the plaintiffs who are co-owners of the property are not consenting parties to the impugned construction. Under these circumstances, the lower appellate court was fully justified in restraining the defendants from putting up new construction in the place of the old building. The order of the lower appellate W.P.(C) No. 27825/2008 : 3: court is in accord with the principles of law governing the matter. I, therefore, do not find any good ground to interfere with the discretion exercised by the lower appellate court. It is made clear that the suit itself shall be disposed of untramelled by the observations and findings in the impugned judgment. Dated this the 22nd day of September, 2008. V. RAMKUMAR, JUDGE. rv