Unilateral construction by a co-owner on jointly owned property without consensus is not permitted, underscoring the necessity of agreement among co-owners.

ORDER

Petitioner (in this Writ Petition) seeks review of judgment dated

06.05.2010 whereby the Writ Petition was disposed of permitting petitioner to complete work upto and inclusive of the roofing (alone) of the building which was constructed in a portion of land sought to be partitioned. Petitioner has filed this review petition on 16.06.2010 stating that he has been relegated to the very same court which has decided the application against him and that on the facts and circumstances of the case petitioner ought to have been permitted to complete construction of the building. Learned counsel for petitioner invited my attention to the decision of this Court in I.Gouri v. C.H.Ibrahim (AIR 1980 Kerala 94) where in paragraph No.7 it is stated that in between co- owners, the court may feel persuaded to grant reliefs if evidence established that plaintiff cannot be adequately compensated at the time of partition and that greater injury will result to him by the refusal of relief than by granting it. Learned counsel contends that the property sought to be partitioned is 1.95 acres while construction is being carried on in about ten cents and hence even if property is ultimately ordered to be partitioned respondents will not be put to any loss. Learned counsel contends that this Court while disposing of the Writ Petition was carried away by the argument advanced by the respondents that building is being constructed in garden land while rest of the property is rocky area which is factually incorrect.

2. Question whether property is partiable as claimed by the respondents is a matter which trial court has to decide. Courts below granted injunction against petitioner constructing a two storied building in the property sought to be partitioned. At the time of disposal of Writ Petition after hearing both sides I permitted petitioner to complete construction upto roofing and directed that he can seek further orders from the trial court. Learned counsel for petitioner admits that on the strength of the judgment of this Court petitioner has completed construction work upto roofing. It is thereafter that this petition for review is filed. A Division Bench of this Court inM/s.Jacobs Private Ltd. v. Thomas Jacob ( 1994 (2) KLJ 738 ) has stated the legal position that one co-owner has no right to place any construction upon what belongs to all without the consent of other co-owners. If several owners are in possession of an undivided property, none of them has a right to appropriate to his exclusive use any portion of the property. It is inspite of the above situation that after hearing counsel for respondents also permission was granted to the petitioner to complete work as referred to in the judgment sought to be reviewed.

Petitioner was also given liberty to approach the trial court for further orders in the matter. Having regard to the facts and circumstances of the case I do not find any error apparent on the face of record requiring review of judgment.

Petition is dismissed.

THOMAS P.JOSEPH, Judge.

cks