IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 29TH JUNE 2010 / 8TH ASHADHA 1932 SA.NO. 182 OF 1997(E) --------------------- {AS.269/1993 OF II ADDL. DISTRICT COURT, PALAKKAD IN OS.226/1991 OF ADDL.MUNSIFF COURT, PALAKKAD} .................... APPELLANT(S)/APPELLANT/PLAINTIFF: ------------------------------------------ NARAYANAN NAIR, S/O.MAYI AMMA, KIZHAKKE MANGATTU KAVILPAD AMSOM, PALAKKAD. ADDITIONAL APPELLANTS 2 TO 7:(LRS OF 1ST APPELLANT) ------------------------------------------------------------------- 2. N.EMILY AMMAL, W/O.NARAYANAN NAIR, AGED 71 YEARS, R/AT 157-S, PALANIYAPPA NAGAR, SURAMANGALAM, SALEM – 636 005. 3. N.VAIDHEESWARAKUMAR, AGED 47, S/O NARAYANAN NAIR, R/AT DO. 4. N.VASUMATHI, , AGED 45, D/O NARAYANAN NAIR, R/AT DO. 5. N.DURAIRAJ, AGED 44 YEARS, S/O NARAYANAN NAIR, R/AT DO. 6. N.RAVIDAS, AGED 42 YEARS, S/O NARAYANAN NAIR, R/AT DO. 7. N.DIVAKAR, AGED 42 YEARS, S/O NARAYANAN NAIR, R/AT DO. ADDL. APPELLANTS 2 TO 7 ARE IMPLEADED AND THEY ARE RECORDED AS THE LRS OF DECEASED APPELLANT AS PER ORDER DT. 4.3.99 ON CMP 510/99. BY ADV. SRI.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE SRI.G.SHRI KUMAR & PRABHA R. MENON SA.NO. 182 OF 1997 :: 2 :: RESPONDENT(S)/RESPONDENTS/DEFENDANTS: ----------------------------------------------------- 1. M.MADHAVANKUTTY, S/O.NANIKUTTY AMMA, KIZHAKKEMANGATTU, KAVILPAD AMSOM, PALAKKAD. 2. SARADA AMMA, D/O.THANGAMALU AMMA, DO. DO. DO. BY ADV.SRI.P.R.VENKITESH THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ---------------------------------------------- S.A.NO.182 of 1997 ---------------------------------------------- Dated this the 29th day of June, 2010. JUDGMENT The plaintiff, who has been worsted in two courts below, by the dismissal of his suit for injunction, both prohibitory and mandatory, and that decision affirmed by the lower appellate court, has filed this appeal. Pending appeal, the appellant had passed away and his legal representatives have been brought in as additional respondents. 2. Admittedly, the plaintiff and also the defendants are co-owners having right over the subject matter, the property covered by the suit. The defendants have illegally constructed a foundation for a house in the plaint property without the consent and knowledge of the plaintiff was the basis for seeking the decree of perpetual prohibitory injunction and a mandatory injunction against them. The plaintiff further alleged that the defendants have put up a fence and also committed waste in the S.A.NO.182 of 1997 :: 2 :: property by cutting down some trees. The defendants, in their written statement resisted the case of the plaintiff contending that they have obtained oral consent from the co-owners for putting up the construction, which according to them, was essential for constructing a house for their residence. They also contended that the area in which the foundation was put up in the property was much less the share actually due to them in the property. 3. The learned Munsiff, on the pleadings of the parties and also the materials tendered, found that the plaintiff has not substantiated a case for the relief of injunction, both prohibitory and mandatory, sought for in the suit. In that view of the matter, the suit claim was negatived. 4. The first appellate court, after re-appreciating the materials available on record, concurred with the view taken by the trial court and dismissed the appeal. S.A.NO.182 of 1997 :: 3 :: 5. Challenges canvassed to impeach the concurrent decision rendered by the two courts below, non-suiting the plaintiff are two fold. It is contended that what was pleaded by the defendants was the oral consent for putting up the construction, but in evidence, they attempted to substantiate a case that there was written consent, producing some materials thereof alleged to have obtained from co-owners having right over the property. At any rate, no consent was obtained either oral or written from the plaintiff, admittedly a co-owner of the property. The next limb of challenge is that no co- owner can claim exclusive right over any specific portion of the undivided property and appropriate the same for his use by putting up construction, or do such acts detrimental to the interest of the other co-owners. I find, the grounds set up to impeach the concurrent findings entered by the two courts below are of no avail to the S.A.NO.182 of 1997 :: 4 :: plaintiff/appellant to reverse the decision rendered that no decree of injunction, either prohibitory or mandatory, can be passed in the suit. 6. It is true, when a construction is made in a joint property by one co-sharer, the other co-sharer/co- sharers may obtain a decree for injunction to restrain him from constructing the building. However, whether the injunction has to be granted or withheld, either permanent or mandatory, will depend upon the facts and circumstances of the case. While it is well settled that a co-sharer cannot be allowed to prejudice the interest of other co-sharers and in the event of his putting up any construction in the undivided property, he may be restrained by injunction and be directed to maintain status quo, it is also to be noted that any of the co-sharers can file a suit for partition for division of the properties and in such a comprehensive suit also he can apply for S.A.NO.182 of 1997 :: 5 :: and seek an order of injunction restraining the construction of any structure in the property by other co- sharer/co-sharers. When a co-sharer is filing a suit for injunction alone as against the other co-sharer, just as in any other suit for injunction, the facts and circumstances presented in the case have to be examined as to whether any substantial injury is likely to be caused to the plaintiff by the proposed construction. The broad facts presented in the case by the materials produced deserve to be scrutinised whether the injunction applied for has to be granted especially where he could have filed a suit for partition for division and separate possession of the properties in accordance with the rights over the property by the respective shareholders. The trial court, on the basis of the materials produced found credence in the case of the defendants that there was consent from the plaintiff for putting up the construction. The evidence of S.A.NO.182 of 1997 :: 6 :: the 2nd defendant as DW.1 which was corroborated by DW.2, another co-owner of the property, that the plaintiff had given consent was found creditworthy. On re- appreciation of the evidence, the first appellate court also found merit in the contention raised by the defendants that the construction was permitted to, and as such the plaintiff is not entitled to a decree of injunction. The plaintiff did not mount the box, but on her behalf, her son- in-law was examined as PW.1. Though a medical certificate was produced to show that the plaintiff was incapacitated from appearing before the court, no attempt was made to seek appointment of a commission to examine the plaintiff. Coupled with the above circumstance, the learned Munsiff also found the evidence of PW.1 on the disputed question whether consent had been given by the plaintiff for construction was of no merit. Finding arrived at by the learned S.A.NO.182 of 1997 :: 7 :: Munsiff on the materials produced which after re- appreciation of the evidence, was approved by the first appellate court as well that there was consent from the plaintiff to put up the construction is assailed before me contending that what was pleaded was oral consent, but later it was sought to be established by showing that there was written consent from co-owners having right over the property. The fact that the plaintiff had produced written consent from other co-owners of the property for putting up the construction will, in no way, destroy their contention that they had obtained oral consent from the plaintiff. Production of the written consent from other co-owners with the evidence of DW.2 another co-owner has to be viewed in the light of the contentions raised by the defendants that none of the co- owners including the plaintiff had any objection in putting up the construction and it was not a case of leading S.A.NO.182 of 1997 :: 8 :: evidence conflicting with the contention taken that there was oral consent from the plaintiff. I do not find any impropriety or infirmity in the appreciation of evidence by both the courts below and the conclusion formed thereunder that the plaintiff has not made out a case for a decree for injunction, both prohibitory and mandatory. The dismissal of the suit, which was confirmed by the appellate court, in the circumstance, is only to be upheld. Appeal is dismissed directing both sides to suffer their costs. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy// P.S. to Judge.