Co-owners must consent to alterations on shared property; unilateral construction without consent can be restrained by injunction.

JUDGMENT

The appeal is directed against the order dated 13.09.2024 of the Additional Sub Court, Palakkad in I.A.No.4/2024 in final decree interlocutory application No.1268/2012 in O.S.No.25/2008 of that court.

2. The above said I.A was filed by the plaintiff, in a final decree application for allotment of his ¼ share, for a temporary injunction restraining the respondents(defendants) from permanently altering the plaint C schedule property or effecting any constructions thereon. It is stated that the Advocate Commissioner who visited the suit properties on 04.09.2024 in connection with the final decree proceedings, noticed that the respondents are undertaking construction activities in that property without intimating the court or getting the consent of the appellant who was declared to be having ¼ undivided share over the entire extent of the 54.50 cents scheduled as plaint C schedule property. It is the further contention of the appellant that the respondents have employed several workers for the construction works and that they were excavating earth from the said property causing change to the nature of the property.

3. According to the respondents, the construction activities in the C schedule property are being carried out after obtaining the necessary permit and sanction from the Palakkad Municipality. It is also stated that the construction activities will only add to the value of the property, and it cannot be said as an act of waste causing deterioration of that property. According to the respondents, the appellant sought temporary injunction to pressurise the respondents to concede to his unlawful claims.

4. The Trial Court declined to grant the temporary injunction with the observation that the appellant who is having only ¼ share over the decree schedule property, could get allotment of the above share from the remaining property. It is the further finding of the learned Sub Judge that the construction being done in the decree schedule property will be considered as one made for and on behalf of the co-owner. It is also found by the Trial Court that the adjudication in the final decree of the year 2012 is yet to be done, and hence the order stalling the construction activities would cause irreparable injury to the respondents. The submission made by the counsel for the respondents about their willingness to demolish the portions of building if it were found to be coming under the share of the appellant at the time of final allocation, is also taken note of by the learned Sub Judge for arriving at the conclusion that the balance of convenience is also in favour of the respondents.

5. Heard the learned counsel for the appellant and the learned counsel for the respondents.

6. As per the preliminary decree passed in this case on 25.02.2012, the appellant is having ¼ share over the suit property, and the remaining ¾ share has been allotted to the first respondent. The above decree has been challenged by the respondents in appeal. It is also revealed from the counter statement filed by the first respondent before the Trial Court that the passing of final decree has been stayed by this Court at the request of the first respondent in an application filed in the aforesaid appeal. While so, proceedings were initiated in the final decree application filed by the appellant for the demarcation of his ¼ share over the decree schedule property through an Advocate Commissioner and Surveyor deputed by the Trial Court. It appears that the Commission Report and Plan once submitted by the Advocate Commissioner, had been remitted back for further enquiry, and that the revised report and plan had been filed by another Advocate Commissioner. To the above Commission Report and Plan, submitted by the second Advocate Commissioner also, the appellant had preferred objection and sought the intervention of the Trial Court to have it remitted back. In the meanwhile, the respondents herein started activities in the decree schedule property for the con