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BOMBAY HIGH COURT - BENCH AT GOA
M. S. SONAK, J
ARJUN G. NAIK – Appellant
Versus
TARAMATI T. NAIK AND ANR. – Respondent
Second Appeal No.55 of 2022
For the Appellants/Petitioners: Mr. Chirag Angle
For the Respondents: Mr. Kaif Noorani
A co-owner of property cannot engage in demolition or reconstruction without the consent of all co-owners, and equitable relief is denied to one acting in inequitable conduct.
Headnote:(A) Injunction - Civil Procedure - Co-ownership property - A co-owner cannot undertake demolition or reconstruction without consent of all co-owners - The First Appellate Court reversed Trial Court judgment based on evidence reflecting co-owners' appropriate understanding. (Paras 6, 12, 13)
(B) Injunction Relief - The Appellant is not entitled to equitable relief due to admitted inequitable conduct regarding co-ownership. (Paras 10, 14)
Facts of the case:
This Second Appeal arises from the Appellant's claim that Respondent No.1, widow of his deceased brother, improperly sought to demolish and reconstruct a co-owned property without consent. The trial Court decreed in favor of the Appellant but was reversed by the Appellate Court.
Findings of Court:
The Appellate Court asserted that the Appellant's equitable misconduct led to his claim's dismissal, reflecting on the property’s co-ownership nature and lack of consent.
Issues: Whether the Respondent, without consent from all co-owners, could demolish and reconstruct the property? Whether the Appellate Court was justified in overturning the Trial Court's judgment?
Ratio Decidendi: The court emphasized that equitable relief requires good faith and consent among co-owners, which the Appellant failed to demonstrate in this case.
Result: Appeal dismissed.
| Table of Content |
|---|
| 1. matter involves co-ownership and denial of permissions. (Para 2 , 3 , 4) |
| 2. arguments surrounding consent for modifications to co-owned property. (Para 6 , 8) |
| 3. court's determination of equitable relief based on parties' conduct. (Para 9 , 10 , 11 , 12 , 13 , 14) |
| 4. final decision affirmed the appellate court's ruling. (Para 15) |
| 5. denial of interim relief based on court's findings. (Para 16) |
ORAL ORDER :
1.Heard Mr Angle, learned counsel for the Appellant, and Mr K.Noorani, appointed under the Legal Aid Scheme for Respondent No.1.
2.The Appellant is the original plaintiff, and the Respondents are the original defendants. Respondent No.1, Taramati Naik, is the widow of the Appellant's brother.
3.The Appellant instituted Regular Civil Suit No. 35/2014/C to injunct Taramati Naik from demolishing and reconstructing the suit house, which the Appellant claims is co-ownership property. The Appellant also alleged that no permissions were obtained from Respondent No.2 – Panchayat for undertaking such activity, which was urged as an additional ground in the relief of injunction.
4.The trial Court decreed the suit. However, the Appellate Court has reversed this decree. Hence, this appeal.
5.Mr Angle, learned counsel for the Appellant, presses the following questions, which according to him, constitute the substantial questions of law in support of this appeal.
(i) Whether when the Respondent No.1 having admitted that the suit house being a common house of Arjun, Kashinath, Santosh and Tulshidas Naik, in the absence of consent of all the co-owners the Respondent No.1 could have demolished and reconstructed the suit house?
(ii) Whether the Appellate Court having held that the demolition and the reconstruction of the suit house by the Respondent No.1 being illegal, the Appellate Court was justified in setting aside the Judgment and Decree dated27/02/2019 passed in Regular Civil Suit No.35/2014/C?
6.Mr Angle submits that there is no dispute and even otherwise at least proved from the evidence on record that the suit house, as well as the property in which the suit house is located, is a co-ownership property. He submits that it is well settled that a co-owner cannot demolish or reconstruct a co-ownership property without the consent of all other co-owners. He submits that the Appellant had never consented to the illegal activity of Respondent No.1. There is evidence that no permissions were obtained from the Panchayat by Respondent No.1. Based on all this, he submitted that the relief of injunction was due and should have been granted. He relies on Ramkrishna Bapu Kotkar Vs Namdeo alias Narayan Nagesh Kotkar , 2006 (1) AllMR 617 Mr. Vishnu Govind Naik Vs Mr. Harischandra Dattaram Thakur & Another, 2006 (5) AllMR 558 and T. Lakshmipathi and others Vs P. Nithyananda Reddy and others , (2003) 5 SCC 150 in support of his contentions.
7.On the other hand, Mr K. Noorani, learned Advocate for Respondent No.1, submitted that the injunction relief is equitable. The First Appellate Court has quite correctly declined such relief to the Appellant. He pointed out that the Appellant is the brother-in-law of Respondent No.1. The Appellant admitted during cross having appropriated the portion of an ancestral property by himself constructing on the plinth of a portion of the ancestral house. He pointed out that all co-owners except the Appellant consented to Respondent No.1 for repairing a mud wall that collapsed due to inclement weather and replacing the roof tiles, which, as a consequence, had suffered damage. He pointed out that the repairs were complete in all respects and only some painting works remained.
8.Mr Noorani submitted that the injunction relief was entirely misplaced in light of the pleadings and the evidence on record. He submitted that the Appellant had not sought any partition decree, and the mere making of construction or improvement in the common property does not amount to ouster. He relies on Bachan Singh Vs Swaran Singh , I.L.
