ACCAMMA EAPHEN Vs. ULLOOR GRAMA PANCHAYATH

JUDGEMENT

(1.) FIRST plaintiff in O.S.No.153/1997 on the file of Principal Munsiff's Court, Thiruvananthapuram is the appellant. Second plaintiff is the third respondent and respondents 1 and 2 are the defendants. The suit was instituted by the plaintiffs seeking a decree for declaration that the building permit issued to the second respondent by the first respondent Corporation is in violation of Rule 15(2) of Kerala Building Rules, 1984 and for a permanent prohibitoryinjunction restraining the second respondent from making any construction in violation of the provisions of Kerala Building Rules. The relief was subsequently amended claiming a mandatory injunction directing second respondent to dismantle plaint D schedule building portion or on their failure, to permit the plaintiffs to get it demolished through court.

(2.) APPELLANT is the owner of plaint A schedule property. Plaint B schedule property was purchased by the second plaintiff. It is their case that plaint A and B schedule properties are situated on the southern side of Thiruvananthapuram-Kollam National Highway and the property on the eastern side of plaint A and B schedule properties belongs to the second appellant. In between plaint A and B schedule properties and the property of the second respondent, there is a pathway starting from the southern side of the National Highway and proceeding along the eastern boundary of plaint B schedule property and ending on the north-eastern corner of plaint A schedule property. It is contended that there is a proposal for widening the pathway to make it a motorable access by surrendering portions of the properties on either side. Plaintiffs expressed their willingness to surrender. It is contended that second respondent started earth works for putting foundation for a multi storied building in his property without leaving sufficient space as provided under Rule 15(2) of Kerala Building Rules. Second respondent is not entitled to construct any building in violation of the Building Rules and first respondent is not entitled to issue any building permit in violation of the Building Rules and therefore, a declaration and injunction is to be granted. Subsequently, the plaint was got amended contending that second respondent had commenced construction of the building after the institution of the suit and report of the Advocate Commissioner establishes that it was done during the pendency of the suit and it is in violation of the Building Rules and therefore, it is to be removed by a mandatory injunction.

(3.) ARGUMENT of the learned counsel appearing for the appellant is that report of the Commissioner and finding of the learned Munsiff establishes that there is violation of the provisions of Building Rules and in such circumstances, learned Additional District Judge was not justified in reversing the decree.