SUBHADRABAI ANNAJI Vs. SUSHEELABAI

JUDGEMENT

(1.) This appeal by defendant 1 is directed against the judgment and decree dated 18-11-1978 passed by the II Addl. Civil Judge, Belgaum in RA No. 80 of 1977, on his file, dismissing the appeal, on confirming the judgment and decree dt. 30-3-1977 passed by the Prl. Munsiff, Belgaum in OS No. 109 of 1973, on his file, decreeing the suit of the plaintiffs with costs.

(2.) The plaintiffs instituted a suit for mandatory injunction as well as for permanent injunction against the defendants. They averred that the plaintiffs and the defendants jointly purchased 6 guntas and 3 annas of plot bearing Sy. No. 73/2/12/ 1G of Angol village, under registered sale deed dt. 22-1 1970 and, thereafter, jointly constructed a building consisting of eight residential blocks after obtaining necessary permission of the Belgaum Municipal Council. All parties contributed equally for the construction of the building. Plaintiffs and defendants are thus the co-owners of the entire building consisting of eight blocks and the open space round about the building. All the parties, however are residing separately in different blocks though there is no actual partition among them. Defendant 1 is in possession of Block No. 8 on the eastern side. An area of 15 feet open space is left east-west adjacent to the first defendant's block. Likewise, an area of 60' in width has been left north-south on the northern side of the building. An area of 5' in width is left on the back side of the building. So also, an area of 5' is left on the western side of the building. Defendant 1, however, unauthorisedly constructed a kitchen and room adjacent to her building in the open space. The plaintiffs further averred that the open space was jointly owned and possessed by the plaintiffs and the defendants. The construction was put up without the consent of the other co owners. Moreover, defendant 1 claimed to be the absolute owner of her block as well as the open space OB which she made the alleged encroachment. Thus, it is the case of the plaintiffs that defendant I has no fight to erect any structure on the open space which is jointly owned and possessed by the plaintiffs and the defendants. They, alternatively, contended that even assuming that eight blocks are owned independently by different sharers, there has to be a way east-west connecting the same to the existing public road on the eastern side to have an approach to all the blocks. Defendant 1 has reduced the extent of the open space. She has violated the agreement between the parties to keep the open space round about the building for common enjoyment of all the block owners. Besides, during the pendency of the case, defendant 1, with mala fide intention, hurriedly constructed the kitchen and room on the open space. The construction is unauthorised, illegal and, therefore, is liable to be demolished. Hence, the plaintiffs instituted the suit for mandatory and prohibitory injunction against defendant 1.

(3.) Defendant 1 contested the suit. She contended that after that building was completed and completion certificate was obtained from the Municipality, there has been a partition among the parties and each one of them is in exclusive possession of his or her independent block. Plaintiff's made an application to the Municipality on 13 4 1972 requesting for the entry of their names as full owners of the respective blocks separately in the Muni cipal Records and also to assess the tax separately. Defendant 1 further contended that plaintiffS and defendants were no longer co-owners of the blocks in question along with the area adjoining the blocks. According to her, the open space in dispute is not jointly owned and possessed by plaimiffs and defendants. She further contended that plaintiffs did not raise any objection when the construction was started. Plaintiffs themselves constructed 'katta' in the open space in front of their blocks and converted the front space as garden. Hence, they had no right to obtain the injunction as sought for against her.