VINU KOSHY ABRAHAM Vs. GREATER COCHIN DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) The plaintiff is the appellant. He concurrently lost in a suit for injunction. His case is that in the public auction conducted by the Greater Cochin Development Authority (for short GCDA), the plaint schedule property was purchased by the plaintiff's predecessor and the sale deed dated 18.5.1995 was executed in favour of the plaintiff's predecessor Sri.Babu Thomas from whom the plaintiff obtained right over the plaint schedule property. Based on the sale deed he applied for getting the plan and licence for construction of a multi storied building in the plaint schedule property. The eastern boundary of the property is shown as road. As per the plan approved by the Corporation also, the eastern boundary is shown as road. Based on the permission granted, a multi storied building was constructed in the suit property. According to the plaintiff, he has got 22.78% of undivided share in the plaint schedule property and also over certain area in the first floor and ground floor. The total extent of land is 51.152 cents. It is comprised in Survey Nos.391 and 392 of Elamkulam Village. According to the plaintiff, there was no boundary wall on the eastern side of the suit property which is the western side of the defendant's property. It was contended that on 14.1.2006, the defendant constructed a compound wall on the western side of the road and thus prevented the free ingress and egress to the multi storied building. According to the plaintiff, the defendant has no right to construct a compound wall except in accordance with the plan approved which should provide three entries into the shopping complex and plaintiff's premises. Hence, contending that construction of the compound wall is unauthorised and illegal, the suit was filed seeking a prohibitory injunction restraining the defendant and their men from obstructing free ingress and egress to the plaint schedule property. A mandatory injunction directing the defendant to demolish the compound wall which had already been constructed on the eastern side of the plaint schedule property was also sought for.

(2.) The defendant resisted the suit denying the allegations made in the plaint. It is contended that the property on the west and the south of the plaint schedule property also belongs to the defendant. The contention that the entire eastern side of the plaint schedule property was assigned to the plaintiff or his predecessor is denied. The defendant put up a road around entire their shopping complex, western side of which is immediately on the eastern side of the plaint schedule property. The plaintiff does not have any right over the said portion of the land belonging to the defendant where the defendant put up a road for the convenient use of the shopping complex belonging to the defendant. The defendant has every right to construct the compound wall around its property including the portion on the western side of the road mentioned above. The defendant further contended that there were complaints from the shop owners running business in the shopping complex belonging to the defendant situated on the eastern side of the plaint schedule property that the occupants and customers coming to AVM Towers were misusing the premises of the shopping complex of the defendant and that the plaintiff has encroached upon the property of the defendant and that the aforesaid persons were draining out water to the GCDA shopping complex. It is also contended that the defendant agreed to permit the residents of AVM Towers to temporarily use the eastern road by putting up an opening to the road of a width of 3.60 metres. Accordingly opening of a width of 3.60 metres was also provided almost at the middle of the compound wall put up by the defendant, as an access to the eastern road from the suit property. The contention that the construction of the compound wall obstructs the free ingress and egress to the plaint schedule property is incorrect. The defendant is entitled to construct the compound wall around its property to preserve and protect the same.

(3.) The plaintiff was examined as PW1 and Exts.A1 to A4 were marked. The Commissioner was examined as CW1 and her report was marked as Ext.C1. The trial court, after considering the entire evidence found that the road in question which is situated around the shopping complex of the defendant/GCDA is not a public road. It was also found that there was a main opening at the north-eastern corner and that the plaintiff is not entitled to have access to the eastern road apart from the opening mentioned above. The lower appellate court concurred with the view taken by the trial court and the appeal was dismissed.