The judgment establishes that unauthorized deviations from an approved construction plan violate local building regulations, affecting ownership rights to common areas.

JUDGMENT

Dated this the 25th day of May, 2023 RSA No.331/2020 has been filed by the 4th defendant and RSA No.78/2021 has been filed by defendants No.1 & 2 in O.S. No.70/2009 on the file of Munsiff's Court, Ernakulam. (Parties would hereafter be referred as per their status before the trial court).

2. Plaintiff filed the suit for permanent prohibitory injunction as well as for mandatory injunction. 1st defendant is a partnership firm engaged in the business of building construction in the name and style 'Skyline Builders'. Plaintiff purchased duplex flat in the multistoried apartment ‘Skyline Topaz‘ at Kathrikadavu, Kadavanthra. As per the approved plan the total car parking area provided is 123 . But defendants 1 and 2 allotted car parking space different from the plan given to the plaintiff. Many common free space shown in the earlier plan were sold for car parking, for which defendants have no manner of right. As per the approved plan obtained from the Corporation on application by the plaintiff it has come out that many free space shown in the earlier plan is converted to parking space in the approved plan. Each car parking is selling for Rs.2 lakhs. Defendants have no right to sell more than 123 car parking space. But the defendants 1 and 2 are trying to sell more than 123 car parking area by converting the common area into car parking in violation of the approved plan. The defendants 1 and 2 are preparing a revised plan for converting free area in the approved plan to parking area. There are 96 apartments in the plaint schedule ‘Skyline Topaz’. So the suit was filed seeking for a permanent prohibitory injunction for restraining the defendants 1 and 2 and their men from converting and selling common free space shown in the approved plan No.KRP 2/122/05 of the plaint schedule property and violating the conditions of the approved plan and restraining the 3rd defendant Corporation from approving any revised plan which will convert common free space for any other purpose.

3. Subsequently, plaint was amended alleging that after the institution of the suit, defendants made 9 car parking in the plaint ‘A’ schedule property violating the approved plan converting free space to car parking and sold to apartment owners. The defendants 1 & 2 have no right to sell common free space. 9 car parking made violating the approved plan shown in the sketch attached in the commission report is separately scheduled as ‘B’ schedule. Direction is further sought to restore the free space converted into car park by a mandatory injunction. A declaration is further sought to the effect that conversion and sale of common free space in ‘A’ schedule property is illegal.

4. Defendants 1 and 2 filed written statement as well as additional written statement contending that as per the approved plan the total car parking area provided for the project is 123 in number. The specification and amenities are provided in the agreement executed between the plaintiff and 1st defendant on 20.09.2006. On completion of the construction, the plaintiff purchased the apartment 13A and 13B on 13th floor of the building including the proportionate share in the common area together with one car parking area as per sale deed No.3550/2009 of SRO, Ernakulam. Plaintiff was allotted one covered car parking area as per the sale deed. Subsequently, he demanded additional car parking area and preferred a car parking adjacent to parking already allotted to him. Accordingly he was allotted 7 and 7A in the ground floor. The plaintiff initially refused to accept the allotted car parking and subsequently accepted the same. So the suit is filed to coerce the defendants to accede with his demand for allotment of car parking according to his convenience. The defendants are not making any construction in variation of the approved plan. They have no intention to convert common areas and sell the same as alleged. The allegation that the defendants made 9 car parking in the common area and sold afte