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2024 Supreme(Online)(KER) 14419
HIGH COURT OF KERALA
T. R. Ravi, J
M/S. ANANTH OIL EXTRACTIONS PVT. LTD. – Appellant
Versus
COCHIN MUNICIPAL CORPORATION – Respondent
WP(C) 15688/2023
SRI PEEYUS A.KOTTAM, SRI K.R.SUNIL, SRI N.NANDAKUMARA MENON (SR), SRI RAVISANKAR P K, S.SACHITHANANDA PAI, SRI R.HARISHANKAR, SRI R.NIKHIL, ADV.COMMISSIONER, SMT.DEEPA, GOVT.PLEADER, SRI SABU GEORGE, SRI P.B.KRISHNAN (SR.), SRI P.B.SUBRAMANYAN, SRI MANU VYASAN PETER
Co-owners cannot seek injunctions against each other for property repairs; the necessity of permits for structural changes must be determined at trial.
Headnote:
[Injunction] - [Property Dispute] - [Kerala Municipality Building Rules, 2019; Code of Civil Procedure, 1908; Easements Act, 1882] - [The court analyzed the rights of co-owners regarding property alterations, emphasizing the necessity of permits for structural changes under local building rules. The appellate court's reversal of the trial court's injunction was upheld, highlighting the balance of convenience and irreparable harm considerations in property disputes.]
Fact of the Case:
The case involves a property dispute between co-owners regarding the demolition and reconstruction of a roof on a commercial building. The plaintiff sought an injunction against the defendant's actions, claiming potential harm to the building's stability.
Finding of the Court:
The appellate court found that the plaintiff, as a co-owner, lacked the right to prevent the defendant from repairing the roof, emphasizing that the defendant's actions were necessary for the building's integrity and did not require a permit at that stage.
Issues: Whether the plaintiff, as a co-owner, could seek an injunction against the defendant's construction activities on the property, and whether a building permit was necessary for the proposed works.
Ratio Decidendi: The court held that a co-owner cannot seek an injunction against another co-owner for actions taken on their exclusive property rights, and that the necessity of a permit for structural changes is a matter for trial, not for interim relief.
Final Decision: The original petition was dismissed, and the appellate court's decision to allow the defendant's construction was upheld.
An extent of 23.234 cents in Sy.No.430/2 & 5 of Ernakulam Village, Kanayannur Taluk, originally belonged to one Sri Rozario. Sri Rozario constructed a commercial building in 6.034 cents of the said land in 1967. The property is abutting MG Road, Ernakulam. On 11.4.1975, Sri Rozario gifted the right to construct the 2nd floor of the building to his sisters. However, it has been specified that the sisters have not been given any right over the land. Sri Rozario also retained the right over the terrace of the 2nd floor. Sri Rozario's sisters constructed the 2nd floor which had an extent of 2800 Sq.Ft. Sri Rozario executed a sale deed in respect of the entire property and the building, except the 2nd floor to a third party. On the premise that the property had been undervalued in the sale deed, the Income-tax Department initiated proceedings, and the property was brought for sale. The Income-tax Department auctioned the property on 28.3.1992 in favour of M/s.Ananth Oil Extractions Private Limited, who is the petitioner in W.P.(C).No.15688 of 2023 and O.P. (C)No.1375 of 2023. M/s.Ananth Oil Extractions thus got title over 23.234 cents of land and the building, except the 2nd floor. There were tenants in various portions of the building. Sri Nithyananda Kamath, the Managing Partner of M/s.Krishna Novelty Stores was one such tenant. M/s.Krishna Novelty Stores is the respondent in OP(C).No.1375 of 2023, the 3rd respondent in W.P.(c).No.15688 of 2023, and the petitioner in W.P.(c)No.18309 of 2023.
2.On 03.02.1994, M/s.Ananth Oil Extractions executed an agreement for sale in favour of some of the tenants. Disputes arose regarding the agreement, and O.S.No.581 of 1996 was filed before the Sub Court, Ernakulam, for specific performance of the agreement for sale. During the pendency of the suit, the tenants filed a suit as O.S.No.1095 of 2021 before the First Additional Munsiff Court, Ernakulam, for an injunction. Sri R.Nithyananda Kamath was one of the plaintiffs in the suit. One of the allegations in the suit was that erecting hoardings on the terrace would adversely affect the stability of the building. O.S.No.1095 of 2001 was decreed on 25.11.2010. The suit for specific performance was also decreed. Pursuant to the decree in the suit for specific performance, the sale deed was executed on 21.3.2006 as per Document No.1742 of SRO, Ernakulam in favour of five persons. 3456.60 shares out of 7700 undivided shares of the land in 6.034 cents and the specified shop rooms were assigned. One of the assignees was M/s. Industrial Enterprises, a firm represented by its Partner Sri Nithyananda Kamath. Later, the above-mentioned 5 transferees partitioned the property between them by executing a partition deed (Document No.4400/2006 of SRO, Ernakulam), and 820.64/7700 undivided shares and one ground floor shop room was allotted to the share of Sri R. Nithyananda Kamath.
3.Much later, M/s.Krishna Novelty Stores, represented by its Partner Sri Nithyananda Kamath, purchased the 2nd floor of the building from the sisters of Sri Rozario on 26.10.2022 as per sale deed No.3423/2022 of SRO, Ernakulam. It can thus be seen that M/s. Krishna Novelty Stores became the owner of the 2nd floor of the building without any right over the land, and Sri Nithyananda Kamath, through another firm, M/s. Industrial Enterprises, became the owner of 820.64/7700 undivided share in the property and one ground floor shop room in the property.
4.When M/s. Krishna Novelty Stores started demolition of the roof of the 2nd floor of the building, M/s. Ananth Oil Extractions preferred O.S.No.257 of 2023 before the 2nd Additional Munsiff Court, Ernakulam seeking an injunction against the demolition. The above suit was filed, alleging that the construction activities would affect the stability of the building and that the required permit had not been secured from the Corporation of Cochin. 'M/s.Ananth Oil Extractions' is hereinafter referred to as 'the plaintiff' and 'M/s.Krishna N
