The court emphasized the necessity for minimal construction while ensuring that the petitioner does not take undue advantage during the partition proceedings.

Dated, this the 15th March, 2024 The petitioner herein is the 4th defendant in the suit, O.S.No.443/2014, of the Munsiff Court, Ottapalam. The petitioner is aggrieved by Ext.P5 order, which refused an application seeking permission to construct a tool shed and to repair a cattle shed in the scheduled property.

2. Heard the learned counsel for the petitioner and the respondents.

3. The suit is one for partition. Both the plaintiffs and defendants are claiming exclusive rights on the strength of two Wills executed by their father. Admittedly, the petitioner is in defacto possession of the scheduled premises. He filed Ext.P3 application to reconstruct a tool shed and also to repair a cattle shed. The same was objected by the respondents by filing Ext.P4 counter statement. By Ext.P5 order, the learned Munsiff dismissed Ext.P3, holding that there is no averment with respect to the existence of the tool shed and the cattle shed in the written statement. Nor is there any indication in the Commissioner's report as regards the existence of the same. On such premise, the permission sought for was declined.

4. The main objection posed by the learned counsel for the respondents is that in the suit instituted by the respondents, there was an injunction restraining the petitioner herein from committing any waste in the plaint schedule property. According to the learned counsel, the tool shed, which was there in the plaint schedule property, was demolished purposefully by the petitioner, whereafter, the petitioner sought for permission to construct a pucca building in the plaint schedule property. Learned counsel would submit that an old tharavadu house was similarly demolished and big structure was erected by the plaintiffs in the property. The present attempt is also similar in nature to bring in a big building to suit the requirements of the petitioner, which cannot be conducive in a suit for partition.

5. Having taken note of the submissions made by the learned counsel for the respondents, this Court is of the opinion that the permission sought for vide Ext.P3 can be allowed, subject to specified conditions. If the existence of the cattle shed and the tool shed in the plaint schedule property is more or less established and that the same stands destroyed now, this Court is of the opinion that there exists a necessity to rebuild the same, so as to serve the minimal needs to keep the tools and also to house the cattles. All the same, the concern of the learned counsel for the respondents that the petitioner will not take advantage of the situation and construct a pucca building under the guise of renovating the cattle shed and reconstructing the tool shed, is also liable to be taken care of.

6. In the circumstances, Ext.P5 order will stand set aside and the matter will stand remanded to the learned Munsiff with the following observations:

i) The petitioner will submit a basic plan in respect of the tool shed to be reconstructed in the scheduled property espousing the minimum requirements and using materials, which are temporary in nature, as far as practicable.

ii) The learned Munsiff will ascertain whether the requirements espoused in the plaint are minimal, so as to suit the purpose stated in Ext.P3 and shall sanction the same, once the learned Munsiff is satisfied of the same.

iii) An Advocate Commissioner shall be appointed to ensure that the construction is made only in accord with the plan by using materials, which are temporary in nature, except in a situation, where the same is not possible/feasible.

iv) As regards renovation of the cattle shed, the petitioner will take out a fresh commission, to show the existence of the cattle shed and also to prefer a report as to how the renovation is required, so as to serve the minimum purpose of housing the cattles. Upon being satisfied, the learned Munsiff will pass orders in that regard also, which work is also to be supervised by an Advocate Commissioner.

v) The petitioner will execute an u