Rajamma Koshy and others v. Mekha Rachie George and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **TUESDAY, THE 18TH DAY OF FEBRUARY 2020 / 29TH MAGHA, 1941** ## **RSA.No.1323 OF 2019 (G)** **AGAINST THE COMMON JUDGMENT AND DECREE DATED 14.08.2019 IN AS NO.161/2016 OF THE IIND ADDITIONAL DISTRICT COURT, ERNAKULAM, WHICH IS AGAINST THE JUDGMENT AND DECREE DATED 07.09.2016 IN OS NO.57/2011 OF THE I ADDITIONAL SUB COURT, ERNAKULAM** **-----** ## **APPELLANTS/APPELLANTS/DEFENDANTS 3 TO 5:** - **1 RAJAMMA KOSHY, W/O.M.K.KOSHY, AGED 67 YEARS, MALIYEKKAL HOUSE, G156, PANAMPILLY NAGAR, PERUMANOOR DESOM, ERNAKULAM VILLAGE, KANAYANNUR TALUK, PIN-682036.** - **2 RENU K MATHEW, W/O.LATE ANAND SHANKAR, AGED 61 YEARS, FLAT NO.31, 4TH FLOOR, BLOCK NO.2, MARVEL MANSIONS, KATHRIKADAVU, KALOOR.P.O, KOCHI-682017.** - **3 KARNA ANAND SHANKAR, S/O.LATE ANAND SHANKAR, AGED 23 YEARS, FLAT NO.31, 4TH FLOOR, BLOCK NO.2, MARVEL MANSIONS, KATHRIKADAVU, KALOOR.P.O., KOCHI-682017.** **BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM SRI.R.CHETHAN KRISHNA** ## **RESPONDENTS/RESPONDENTS/PLAINTIFFS 1 TO 5/DEFENDANTS 1,2,6,7 & 8:** **1 MEKHA RACHIE GEORGE, D/O.GEORGE, AGED 30 YEARS, FLAT NO.29, MARVEL MANSIONS, KATHRIKADAVU, KALOOR.P.O., KOCHI-682017 REPRESENTED BY HER POWER OF ATTORNEY HOLDER AND FATHER(K.ABRAHAM GEORGE), AGED 62 YEARS.** **RSA.No.1323 OF 2019 -2-** - **2 SESIL JOSEPH(SESIL KONDODY) S/O.K.V.JOSEPH, AGED 44 YEARS, BUSINESS, KONDODY VEETTIL, OWNER AND RESIDENT OF FLAT NO.21, 1ST FLOOR, BLOCK NO.2, MARVEL MANSIONS, KATHRIKADAVU, KALOOR.P.O., KOCHI-682017.** - **3 HILDA SESIL, W/O.SESIL JOSEPH, AGED 36 YEARS, HOUSEWIFE, OWNER AND RESIDENT OF FLAT NO.19, GROUND FLOOR, BLOCK NO.2, MARVEL MANSIONS, KATHRIKADAVU, KALOOR.P.O., KOCHI-682017.** - **4 CHERIYAN M.GEORGE, S/O.M.C.GEORGE, AGED 41 YEARS, EMPLOYED WITH HARRISONS MALAYALAM PVT LTD., OWNER AND RESIDENT OF FLAT NO.7, BLOCK NO.1, MARVEL MANSIONS, KATHRIKADAVU, KALOOR.P.O., KOCHI-682017.** - **5 MARVEL MANSIONS APARTMENT OWNERS ASSICIATION, REGISTERED UNDER THE TRAVANCORE COCHIN LITERARY SCIENTIFIC AND SOCIETIES REGISTRATION ACT, HAVING REGISTRATION NO.ER 204/2003, MARVEL MANSIONS, KATHRIKADAVU, KALOOR, KOCHI-682017, REPRESENTED BY ITS PRESIDENT K.A.GEORGE** - **6 M/S.MARVEL HOMES, A REGISTERED PARTNERSHIP FIRM, HAVING EARLIER OFFICE AT B-3, GCDA SHOPPING COMPLEX, MARINE DRIVE, SHANMUGHAM ROAD, ERNAKULAM AND PRESENTLY HAVING OFFICE AT G-4, MARVEL SHOPPING COMPLEX, KOVILAVATTOM ROAD, EAST END OF BASIN ROAD, ERNAKULAM VILLAGE, KOCHI-682035 REPRESENTED BY ITS MANAGING PARTNER K.VARGHESE** ## **7 K.VARGHESE,** **S/O C.K.VARGHESE, AGED 74 YEARS, BUSINESSMAN AND MANAGING PARTNER OF M/S.MARVEL HOMES, PRESENTLY RESIDING AT 29/142, TOC H NAGAR, JANATHA ROAD, POONITHURA VILLAGE, KANAYANNUR TALUK, ERNAKULAM-682019** - **8 CORPORATION OF COCHIN, ERNAKULAM, KOCHI-682011 REPRESENTLY BY ITS SECRETARY** - **9 TOWN PLANNING OFFICER COCHIN CORPORATION OFFICE, ERNAKULAM, KOCHI-682017** **RSA.No.1323 OF 2019 -3-** **10 THE SUPERINTENDENT AND ENGINEERING -IN-CHARGE THE TOWN PLANNING AND BUILDING INSPECTION DEPARTMENT, COCHIN CORPORATION OFFICE, VYTTILA, ERNAKULAM, KOCHI-682020.** **R1-3, R5 BY ADV. M.P.RAMNATH R1-3, R5 BY ADV. SEI.M.VARGHESE VARGHESE R1-3, R5 BY ADV. SMT.S.SANDHYA R1-3, R5 BY ADV. SRI.BEPIN PAUL R1-3, R5 BY ADV. SRI.SHALU VARGHESE R1-3, R5 BY ADV. SRI.S.DEEPAK R1-3, R5 BY ADV. SRI.ANTONY THARIAN R1-3, R5 BY ADV. SRI.P.RAJESH (KOTTAKKAL) R1-3, R5 BY ADV. SRI.SEBASTIAN K. J.** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **SATHISH NINAN, J. = = = = = = = = = = = = = = = = = = RSA No.1323 of 2019** ## **= = = = = = = = = = = = = = = = = = Dated this the 18[th] day of February, 2020** ## **JUDGMENT** The appellants are defendants 3 to 5 in the suit. They are faced with a concurrent decree by the courts below. The issue involved relates to the rival claim of title over the plaint 'B' schedule property between the appellants and respondents 1 to 5 who are the plaintiffs. 2. The plaint 'A' schedule is 62.834 cents with the apartment complex and all structures thereon. The plaint 'B' schedule is a five roomed building situated in a portion of 'A' schedule. The 5[th] plaintiff is the apartment owners association. Plaintiffs 1 to 4 are owners of four apartments in the complex. The first defendant is the builder and the second defendant is its Managing Partner. 3. Under Exts.B1 to B3, the five rooms (B schedule) situated in a portion of the A schedule property was conveyed by defendants 1 and 2 in favour of the third defendant and the predecessor RSA No.1323 of 2019 :- 2 :- of defendants 4 and 5. On the basis of the said documents D3 to D5 claim title over the 'B' schedule. Out of the five rooms of 'B' schedule, one is a transformer room, and another circuit breaker room, the third one a security room and the remaining two rooms are dumped with materials. 4. The courts below found that defendants 1 and 2 did not have the right to convey the plaint 'B' schedule exclusively to defendants 4 to 5 since the same forms part of the common area and amenities. 5. Heard the learned counsel, on admission. 6. There are a total number of 32 apartments in the apartment complex situated in the plaint 'A' schedule. All the apartment owners have undivided share over the land and also a right over all the common facilities and amenities. Defendants 1 and 2 claim title over 1.60% undivided right over the plaint 'A' schedule and along with the right to construct rooms in plaint 'A' schedule, under Ext.B3 sale deed. It is on the strength of the same that Exts.B1 and B2 were executed by them in favour of the third defendant and the predecessor of RSA No.1323 of 2019 :- 3 :- defendants 4 and 5. Defendants 1 and 2 held only an undivided co-ownership right over the 62.834 cents in the plaint 'A' schedule. They could not have claimed title and possession over any specific portion over the 'A' schedule land. They cannot appropriate the plaint 'B' schedule to their exclusive ownership. All the co-owners have right over the plaint 'B' schedule and the land wherein it is situated. Plaint 'B' schedule is not an apartment in the apartment building which is conveyed to defendants 3 to 5, but as noticed it is the area earmarked for common amenities like transformer room, circuit breaker room, security room and other common areas. None of the co-owners have the right to appropriate the same or to claim exclusive title over the same. The rights of defendants 1 and 2 are undivided co-ownership rights. As to whether the apartment was registered under the Apartment Owners Act or not, is of no consequence. One co-owner cannot claim exclusive right over any specific portion of the co-ownership property. The courts below were right in holding RSA No.1323 of 2019 :- 4 :- that defendants 3 to 5 does not have exclusive title over the plaint 'B' schedule. 7. Though the learned counsel for the appellants would contend that without a prayer for setting aside Exts.B1 and B2 sale deed whereunder exclusive right over the 'B' schedule is purported to be conveyed, I am unable to agree with the same. Those are not deeds executed by the apartment owners to have the same cancelled; that apart, the documents as such need not be set aside, it would suffice to get a declaration that, the right that has passed under the said documents is only a coownership right and nothing more. 8. As regards the contention of the learned counsel for the appellant that without there being a prayer for recovery of possession, the mere suit for declaration and injunction is not maintainable, I do notice that the plaintiffs have sought for a mandatory injunction to remove the locks that were affixed on the doors of the rooms of plaint 'B' schedule. Parties being co-owners and the 'B' schedule being common amenities, defendants could RSA No.1323 of 2019 :- 5 :- not claim exclusive possession over the same necessitating a prayer for recovery of possession. 9. The learned counsel for the appellants would contend that the first defendant partnership firm is not impleaded in the suit as represented by two partners as is mandated under Order XXX of the Code of Civil Procedure and hence the frame of the suit is bad. The said contention has no force. Order XXX Rule 1 enables two or more persons who are partners of a firm, to sue or be sued in the name of the firm. It is not necessary to array the partners as parties. See Thomas v. George & Anr. [AIR 1973 Ker 94] and Purushottam Umedbhai & Co. [1961 SC 325] . It is sufficient if the partnership firm is impleaded as a party. 10. It is next contended that the suit is bad for non-joinder of necessary parties since all the apartment owners being the alleged title holders have not been impleaded in the suit. I notice that there is no such plea raised in the written statement and no issue is framed. Under Order I Rule 13 of the Code of Civil Procedure, any plea RSA No.1323 of 2019 :- 6 :- regarding non-joinder of parties is to be raised at the earliest possible opportunity and at any rate at the settlement of issues. That apart, the fifth plaintiff is the Apartment Owners Association which is registered under the provisions of the Travancore Cochin Literary Scientific and Charitable Societies Registration Act and the President of the Association is authorised to represent the association. Therefore, the contention lacks any merit. Leaving aside all that, Section 99 of the Code of Civil Procedure provides that the appellate court shall not interfere with a decree on the ground of non-joinder of parties which does not go into the merits of the case. Therefore, none of the contentions urged by the appellants is sustainable. No substantial question of law arises for consideration in this second appeal. Appeal fails and is accordingly dismissed. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge