The defendant in O.S No.1426 of 2013 before the 1 st Additional
Munsiff Court, Ernakulam, is the appellant herein.
2. The suit is filed by the respondents/plaintiffs seeking a
permanent prohibitory and mandatory injunction restraining the defendant
from making construction in the terrace of the second floor of the plaint
schedule property. A mandatory injunction directing the defendant to
demolish and remove plaint B and C schedule property within a time limit is
also sought for. According to the plaintiffs, the husband of the 1 st plaintiff and
the father of 2nd and 3rd plaintiffs owned an extent of 3.140 cents of land in
Survey No.1989/3 of Ernakulam Village by virtue of sale deed No.2677 of
1972 of Ernakulam, SRO. Late Vijayasenan constructed a double storied
building in the plaint A schedule property having ground floor plus first floor.
The ground floor was rented to a hotel business and the tenant is in
occupation. The defendant, a lawyer by profession, had entered to lease
with the late Vijayasenan for the 1st floor of the building in the year 2006.
Later, Vijayasenan had obtained a building permit No.MOP1/232/08 dated
04.07.2008 for construction of 29.27 Sq.mtrs on the second floor. At that
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time, the defendant approached late Vijayasenan and offered to purchase
the second floor along with the building permit. As per the mutual
agreement, a sale deed was entered in the year 2008 whereby, the
defendant purchased the 1/3rd right over the plaint A schedule property
together with right to construct the building in the second floor with an area of
29.27 Sq.mtrs. It was further agreed that the construction would also carry
over to a canopy over the roof of the second floor. The defendant, after
purchasing the second floor, completed the construction on the basis of the
permit and was finished during the month of April, 2011. The defendant
violated the terms and conditions of sale by exceeding the permitted
construction limits. In the meantime, there were several litigations between
the parties regarding the financial transactions and ultimately O.S No.603 of
2011 was filed by the defendants for recovery of money. In the said suit, a
counter claim was preferred by the plaintiffs questioning the construction
done by the defendant in the second floor of the building. Later, in the Lok
Adalat, a settlement arrived and the counter claim was closed with liberty to
the plaintiffs to prefer a fresh suit and, hence the fresh suit.