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1987 Supreme(Kar) 338
Karnataka High Court
N.S.Bangera, Rama Bangera - Appellant
Versus
STATE - Respondent
Decided On : 11-02-87
The main legal point established is that co-owners cannot construct on joint property without consent, and the grant of mandatory injunction depends on establishing substantial injury caused by the construction.
Headnote:
Joint Family Property - Unauthorised Construction - Aliasanthana law - [AIR 1926 Lahore 52, AIR 1937 Allahabad 293, AIR 1950 Patna 511, AIR 1951 Allahabad 199, 1972 (2) Mys. L. J. 126, AIR 1980 Kerala 94, AIR 1969 Goa-90] - The court discussed the principles of joint family property and the rights of co-owners to construct on the common property without consent. The court emphasized the need for consent, express or implied, and the requirement to establish substantial injury for granting mandatory injunction.
Fact of the Case:
The plaintiffs sued the defendants for an injunction to stop unauthorised construction on joint family property. The trial court found the construction unauthorised but refused the mandatory injunction. The first appellate court agreed, citing the lack of substantial injury and the possibility of adjusting equities during partition.
Finding of the Court:
The court found that the plaintiffs were not entitled to a mandatory injunction as they failed to prove substantial injury caused by the unauthorised construction. The courts emphasized the need for consent and the requirement to establish substantial injury for granting mandatory injunction.
Issues: The main issue was whether the plaintiffs were entitled to a mandatory injunction to stop the unauthorised construction on joint family property.
Ratio Decidendi: The court held that a co-owner cannot construct on joint property without consent, and the grant of mandatory injunction depends on establishing substantial injury caused by the construction.
Final Decision: The court dismissed the appeal, upholding the lower courts' decisions to refuse the mandatory injunction.
( 1 ) THE appellants were plaintiffs in O. S. No. 264/71 before the I additional Munsiff, Mangalore. The plaintiffs sued the defendants for prohibitory as well as mandatory injunction, firstly restraining the defendants from proceeding with the un-authorised construction said to be put up in the suit open site belonging to the joint family of the plaintiffs and defendants; and secondly, to demolish the construction that had come up on the site by the time the suit was filed.
( 2 ) IT is not disputed that plaintiffs and defendants are governed by Aliasanthana law as administered in the South Kanara district of this State and are the descendants of a common female ancestreos Korapolu Hengasu. Defendant-1 is the Ejman of the family living at Mangalore and managing the family properties. The property in question is situate within the municipal limits of mangalore town presently and is given T. S. No. 860 measuring 30 cents and it is mulgeni land. There is no also a family house bearing door No. 7-158. When the suit was filed plaintiff-1 was living in Bombay and the second plaintiff at Mangalore. The first defendant was living at Mangalore and defendants-2 and 3 also at bombay. It is undisputed that these plaintiffs and defendants are co-owners of this property entitled to share equally in the entire land. This being the position, plaintiff-1 sent a letter dated 20-1-1971 to the Commissioner, mangaiore Municipality, with copy marked to the first defendant from Bombay alleging that all the co-sharers of this property have right over this property as per the family agreement dated 9-1-1961. They have equal rights and liabilities and they had come to know that the first defendant rama Bangera was attempting to construct a new building over the open site where there was already existing a house in which he was residing on behalf of the family, it was against their will, they had not consented to it and even objected to the same and therefore it was requested not to grant permission to construct the same. Thereafter, on 22-4-1971 the second plaintiff issued notice to the first defendant complaining about this construction and asking him not to proceed with the same as it was without their consent. This notice was served on first defendant on 23-4-1971. No reply was received from the first defendant till the suit was filed before the Vacation Judge on 24-4-1971 with these reliefs. However, defendant-1 sent his reply dated 30-4-1971 as per Exhibit D-1 to the plaintiff's notice referred to above. There was an application in the suit, for temporary injunction restraining the defendant from continuing with the construction of his building and both the courts have found that in spite of this injunction the construction was completed. An application for breach of injunction also came to be filed before the trial court complaining that defendant-1 had violated the order of, the court and that necessary action be taken. It is now admitted that the application was not disposed of by the trial court.
( 3 ) THE plaintiffs complain that when first plaintiff had gone to Mangalore some days prior to the filing of the suit inquiry at the Municipal Office revealed that construction was started by the first defendant without obtaining any permission. In the notice dated 22-4-1971 the foundation put up by the first defendant was sought to be demolished and a grievance was made in the complaint that defendant-1 was going ahead with the work in speed and day and night. It was only with a view to take advantage of the courts being closed for summer vacation.
( 4 ) IN the written statement filed by the first defendant while admitting that he is a co-owner he maintained that he is entitled to 1/3rd share in the entire property. He is a senior member managing the family under the agreement referred to in the plaint and he was in possession of only a portion of 'a' schedule property which is much less than l/3rd share. In para-3 he pleaded
