The court affirmed the plaintiffs' right to seek injunction against unauthorized construction, ruling the suit maintainable despite claims of limitation and jurisdiction.

JUDGMENT :

Easwaran S., J.

The defendant in O.S No.1426 of 2013 before the 1^st Additional Munsiff Court, Ernakulam, is the appellant herein.

2. The suit is filed by the respondents/plaintiffs seeking a permanent prohibitory and mandatory injunction restraining the defendant from making construction in the terrace of the second floor of the plaint schedule property. A mandatory injunction directing the defendant to demolish and remove plaint B and C schedule property within a time limit is also sought for. According to the plaintiffs, the husband of the 1^st plaintiff and the father of 2^nd and 3^rd plaintiffs owned an extent of 3.140 cents of land in Survey No.1989/3 of Ernakulam Village by virtue of sale deed No.2677 of 1972 of Ernakulam, SRO. Late Vijayasenan constructed a double storied building in the plaint A schedule property having ground floor plus first floor. The ground floor was rented to a hotel business and the tenant is in occupation. The defendant, a lawyer by profession, had entered to lease with the late Vijayasenan for the 1^st floor of the building in the year 2006. Later, Vijayasenan had obtained a building permit No.MOP1/232/08 dated 04.07.2008 for construction of 29.27 Sq.mtrs on the second floor. At that time, the defendant approached late Vijayasenan and offered to purchase the second floor along with the building permit. As per the mutual agreement, a sale deed was entered in the year 2008 whereby, the defendant purchased the 1/3^rd right over the plaint A schedule property together with right to construct the building in the second floor with an area of 29.27 Sq.mtrs. It was further agreed that the construction would also carry over to a canopy over the roof of the second floor. The defendant, after purchasing the second floor, completed the construction on the basis of the permit and was finished during the month of April, 2011. The defendant violated the terms and conditions of sale by exceeding the permitted construction limits. In the meantime, there were several litigations between the parties regarding the financial transactions and ultimately O.S No.603 of 2011 was filed by the defendants for recovery of money. In the said suit, a counter claim was preferred by the plaintiffs questioning the construction done by the defendant in the second floor of the building. Later, in the Lok Adalat, a settlement arrived and the counter claim was closed with liberty to the plaintiffs to prefer a fresh suit and, hence the fresh suit.

3. The defendant entered appearance and contested the suit and contended that the suit is barred by limitation. It was further contended that the suit was also hit by Section 563 of the Kerala Municipalities Act , 1994 (for short, ‘the Act, 1994’). The defendant asserted that, he had completed the construction as early as on 06.10.2009 and that the suit filed in the year 2013 was clearly barred by limitation. Other contentions were also raised by the defendant.

4. On behalf of the plaintiffs, Exts.A1 to A5 documents were produced and PWs 1 and 2 were examined. The report of the Advocate Commissioner was marked as Exts.C1 to C3 series. On behalf of the defendant, Exts.B1 and B2 were marked. No oral evidence was adduced by the defendant. The trial court on the basis of the pleadings framed the following issues:-

“1. Whether suit is barred by limitation?

2. Whether the jurisdiction of this court is barred in view of Sec.509, 563 of the Kerala Municipality Act and Sec 271S of the Panchayat Raj Act?

3. Whether the plaintiffs entitled to mandatory