Woodlands Estate Apartment Owners Association, Jagathy, Thiruvananthapuram v. E.S. Sabukuttan, Prem Kumar.K., Dileep.P.G.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **TUESDAY, THE 13TH DAY OF JUNE 2017/23RD JYAISHTA, 1939** **RSA.No. 19 of 2013 ()** **---------------------AGAINST JUDGMENT DATED 31-07-2012 IN AS 200/2009 OF II ADDL.DISTRICT COURT, TRIVANDRUM** **AGAINST JUDGMENT DATED 01-08-2009 IN OS 1375/2008 OF PRL.MUNSIFF'S COURT, TRIVANDRUM** **APPELLANT(S)/1ST RESPONDENT/1ST DEFENDANT:** **------------------------------------------** **WOODLANDS ESTATE APARTMENT OWNERS ASSOCIATION JAGATHY, THIRUVANANTHAPURAM, REPRESENTED BY ITS PRESIDENT.** **BY ADV. SRI.BIJU BALAKRISHNAN** **RESPONDENT(S)/APPELLANT & RESPONDENTS 2 & 3/PLAINTIFF & DEFENDANTS 2 & 3:** **--------------------------------------------------------** **1. E.S.SABUKUTTAN** **S/O. SREEDHARAN, FLAT NO. 106, WOODLAND ESTATE APARTMENTS, JAGATHY, THIRUVANANTHAPURAM.** **2. PREMKUMAR.K. (PAST PRESIDENT) WOODLAND ESTATE APARTMENT OWNERS ASSOCATION, FLAT NO. 407, WOODLAND ESTATE APARTMENT, JAGATHY, THIRUVANANTHAPURAM.** **3. DILEEP.P.G.** **VICE PRESIDENT, WOODLAND ESTATE APARTMENT OWNERS ASSOCATION FLAT NO. 506, WOODLAND ESTATE APARTMENT, JAGATHY, THIRUVANANTHAPURAM.** **R1 BY ADV. SRI.M.R.ANANDAKUTTAN(CAVEATOR) R1 BY ADV. SRI.P.M.NATESAN R2-R3 BY ADV. SRI.G.S.REGHUNATH R1 BY ADV. SRI.P.B.KRISHNAN R1 BY ADV. SRI.B.GOPAKUMAR** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13-06-2017, ALONG WITH OPC. 2672/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **[CR]** ## **B. KEMAL PASHA, J.** ................................................................ R.S.A. No. 19 of 2013 & O.P.(C) No. 2672 of 2014 ............................................................... Dated this the 13[th] day of June, 2017 ## **J U D G M E N T** The first defendant in O.S.No.1375/2008 of the Principal Munsiff's Court, Thiruvananthapuram is the appellant herein. O.S.No.1375/2008 was filed as a suit for perpetual injunction restraining the defendants from trespassing into the plaint B schedule property and from interfering with the peaceful possession and enjoyment of the plaintiff over plaint A schedule property and from causing obstructions to the access of the plaintiff to plaint B schedule property. R.S.A. No. 19 of 2013 & O.P.(C) No. 2672 of 2014 -: 2 :- 2. Initially, the Principal Munsiff's Court, Thiruvananthapuram non-suited the plaintiff and consequently, the plaintiff preferred A.S.No.200/2009 before the District Court, Thiruvananthapuram. The II Additional District Court, Thiruvananthapuram allowed the appeal and decreed the suit as follows: _“Defendants are restrained by a permanent prohibitory injunction from trespassing into the plaint schedule property and from interfering with the possession and enjoyment of the plaintiff in plaint B schedule property and also from obstructing the access of the plaintiff to plaint B schedule property._ ” Aggrieved by the said judgment and decree, the first defendant alone has come up in appeal. 3. This Court has admitted this Second Appeal on the following substantial questions of law: _“(i) When the plaintiff's wife is the allottee of one of the 40 flats and when she is bound by Ext.A2 agreement which restrains alienation of the fractional share_ ## R.S.A. No. 19 of 2013 & O.P.(C) No. 2672 of 2014 -: 3 :- _which the allottee has over the plaint B schedule property, is the lower appellate court justified in holding that the plaintiff/R1 has got possession over the plaint B schedule property?_ _(ii) Has not the lower appellate court gone wrong in acting upon Ext.A8 since the assignment was executed by the apartment owner as defined under Section 3(b) and in the light of Section 5 (2) of the Kerala Apartment Ownership Act, 1983?_ _(iii) When the B schedule common area was kept apart for the use of all the allottees, can, by assignment of the fractional 1/40[th] right, the assignee get a decree of injunction against the appellant Association which represents all the allottees?”_ 4. Heard the learned counsel for the appellant Sri.Biju Balakrishnan, the learned counsel for the first respondent Sri.P.B. Krishnan and the learned counsel for R.S.A. No. 19 of 2013 & O.P.(C) No. 2672 of 2014 -: 4 :- ## respondents 2 and 3 Sri.G.S. Reghunath. 5. The case of the plaintiff is that he purchased the plaint B schedule property, which is nothing but 3000 sq.ft. of built in area of an apartment complex named “Woodland Estate Apartment Complex” at Thiruvananthapuram, through Ext.A8 sale deed. The said built in area is described as 'covered area of 3000 sq.ft'. at the ground floor of the apartment complex. The said apartment complex is situated in a total extent of 53 cents of property. Along with the plaint B schedule item, the plaintiff purchased half right over 1/40[th] undivided interest also from the said 53 cents of property. The said covered area is having two door Nos., viz., T.C.17/2432(1) and T.C.17/2432(43). The plaintiff traces his title to plaint B schedule property as well as plaint A schedule property through Ext.A8 executed by his wife Suma as well as another lady by name Jaya Prabha. 6. The apartment complex was constructed by the Builders named 'M/s Anugraha Builders', and they R.S.A. No. 19 of 2013 & O.P.(C) No. 2672 of 2014 -: 5 :- constructed altogether 40 apartments, over and above the plaint B schedule item. They sold each one of the flat along with 1/40[th] undivided interest over the said 53 cents of property in which the apartment complex is situated. According to the plaintiff, a restrictive clause was incorporated in the sale deeds in respect of those flats that they would not cause any hindrance or obstruction or interference in the possession and enjoyment of the builder over the 3000 sq.ft. of covered area, which is nothing but plaint B schedule item. According to the plaintiff, on 27.07.2008, the first defendant convened a General Body Meeting of its members and made an illegal proposal to take forcible possession of plaint B schedule property and to dispossess the plaintiff. Pursuant to such a proposal, the 3[rd] defendant, during the month of August, 2008, attempted to break open plaint B schedule covered area; but he could not succeed in it. Consequently, the plaintiff filed the suit for injunction. R.S.A. No. 19 of 2013 & O.P.(C) No. 2672 of 2014 -: 6 :- 7. The defendants filed a joint written statement contending _inter alia_ as follows: The suit is not maintainable. The plaintiff has never derived any title over any of the plaint schedule items. There is no such plaint schedule property in existence. The attempt of the plaintiff is to snatch away the portions of the common area in the apartment complex through illegal means, for which Ext.A8 document is executed. Ext.A8 is a sham document. According to the defendants, even the predecessor-in-interest of the plaintiff had no right or title over the properties covered by Ext.A8 and therefore, the transfer effected through Ext.A8 is not valid. It is also contended that the wife of the plaintiff, who had purchased flat No.106 along with the undivided interest over 1/40[th] share from the 53 cents of property, had no right to transfer the half right over her undivided interest of 1/40[th] share in the 53 cents of property. According to the defendants, the interest of the wife of the plaintiff over such undivided share is not divisible from the flat conveyed to her R.S.A. No. 19 of 2013 & O.P.(C) No. 2672 of 2014 -: 7 :- and therefore, the transfer of a portion of the said undivided share is void _ab inito_ . 53 cents of property in which the apartment complex is situated, is in Sy.Nos.683 and 685 of Thycaud Village and it stands in the name of 40 persons who are the apartment owners of Woodland Estate Apartment Complex. When the covered area has been transferred through Ext.A8 and when the vendors of Ext.A8 had no title to convey, Ext.A8 is void. There was no such structure as the covered area having an extent of 3000 sq.ft. in the original approved plan of the apartment complex. A portion of the ground floor is being used as car parking area and the remaining portion is the common area, which is described as plaint B schedule property. The said common area is meant for the benefit of all the apartment owners. Large pillars of the apartment complex are coming within the plaint B schedule item. On the strength of the _exparte_ order of injunction procured by the plaintiff from the trial court, the plaintiff took forcible possession of plaint B schedule R.S.A. No. 19 of 2013 & O.P.(C) No. 2672 of 2014 -: 8 :- property and now the other apartment owners cannot have access into the plaint B schedule property for carrying out the maintenance work of pipe line, sanitary fittings and all. 8. It has come out in evidence that plaint B schedule item is numbered as 303A. In the sale deeds in respect of the flats as well as in Ext.A8, a plan of the whole apartment complex and the 53 cents of property in which it is situated, has been appended with. In the plan appended with Ext.A8 also the covered area, which is the plaint B schedule item, is specifically shown as item 303A. Similar is the case with other documents also. The said covered area is separately numbered as item 303A. The same is not in dispute. It has to be noted that the builder had retained possession over flat No.303 in the apartment complex. May be because of that fact, the other covered area which was also retained by the builder, as is evident from some of the documents, was safely numbered as 303A to note down that the builder was retaining possession over that portion of the building also. R.S.A. No. 19 of 2013 & O.P.(C) No. 2672 of 2014 -: 9 :- 9. It has to be noted that Sri.G.S.Reghunath has been appearing for respondents/defendants 2 and 3. At the same time, it has to be noted that the present RSA has been preferred by the first defendant alone. When the said aspect has been pointed out by the learned counsel for the first respondent Sri.P.B.Krishnan, the learned counsel for respondents 2 and 3, has answered that they were impleaded in the suit not in representative capacity; whereas, they were independently impleaded in their individual capacity. The said argument is not legally sustainable. Even on a perusal of the plaint and its cause title it is evident that the first defendant Woodland Estate Apartment Owners Association was represented by its President. The 2[nd] defendant was impleaded as Premkumar.K, President of the Apartment Owners Association. His address is also noted there. Similar is the case with the 3[rd] defendant also. The 3[rd] defendant is impleaded as Dileep P.G., Vice President, Woodland Estate R.S.A. No. 19 of 2013 & O.P.(C) No. 2672 of 2014 -: 10 :- Apartment Complex. His address is also noted there. Therefore, evidently, it can be seen that defendants 2 and 3 were impleaded in representative capacity and they were impleaded to represent the first defendant Woodland Estate Apartment Owners Association, which is a registered association. It cannot be said that respondents 2 and 3 were impleaded in the suit in individual capacity and therefore, they cannot ventilate any of their individual grievances in the suit, especially when they have not chosen to prefer a second appeal before this Court. 10. Even though learned counsel Sri.G.S. Reghunath has made an attempt to point out the individual grievance of the flat owners in the matter, it cannot be said that he could legally do so, especially when none of the individual flat owners have been impleaded in the suit in their individual, independent capacity. The grievance advanced by the plaintiff is against the first defendant Association and the said first defendant is represented by defendants 2 and 3. R.S.A. No. 19 of 2013 & O.P.(C) No. 2672 of 2014 -: 11 :- According to the plaintiff, the Association had passed an illegal resolution by advancing a proposal for taking forcible possession of plaint B schedule property from the plaintiff and pursuant to the said resolution, the 3[rd] defendant as the Vice President of the Association had made attempts to break open the plaint B schedule covered area. It was at that juncture, the suit was filed. 11. Regarding the substantial question of law noted as No.(ii) above, the learned counsel for respondents 2 and 3 has vehemently argued that Ext.A1 as well as Ext.A8 are hit by the provisions of the Kerala Apartment Ownership Act, 1983[for short 'the Act']. The learned counsel has invited the attention of this Court to Sections 4, 6, 8, 14, 17 and 18 of the Act. At that juncture, the learned counsel for the first respondent has pointed out that the Act has no application as far as the plaint schedule properties are concerned and even the present apartment complex is concerned, in view of Section 2 of the Act. Section 2 says: R.S.A. No. 19 of 2013 & O.P.(C) No. 2672 of 2014 -: 12 :- _“This Act applies only to property, the sole owner or all of the owners of which submit the same to the provisions of this Act by, duly executing and registering a declaration as hereinafter provided._ _Provided that no property shall be submitted to the provisions of this Act, unless it is mainly used, or proposed to be used for residential purposes.”_ 12. The learned counsel for the first respondent has pointed out that either the builder or the individual owners of the flats in the apartment as well as the plaintiff who is holding the title and all interests over plaint B schedule item, had never chosen to execute and register the declaration provided in the Act and therefore, the provisions of the Act are not applicable to the plaint schedule properties. Even though the learned counsel for respondents 2 and 3 had made an attempt to answer the said point by stating that respondents 2 and 3 do not know whether any such declaration was executed and registered, such an argument R.S.A. No. 19 of 2013 & O.P.(C) No. 2672 of 2014 -: 13 :- does not hold good. If, as a matter of fact, respondents 2 and 3 wanted to show that the Act should apply to the apartments in question or the plaint schedule properties, burden is on respondents 2 and 3 to prove that necessary declarations were executed and registered as contemplated under Section 2 as well as Section 5(2) of the Act. Section 5(2) says: _“5(2) Each apartment owner shall execute a declaration that he submits his apartment to the provisions of this Act and a deed of apartment in relation to his apartment in the manner prescribed for the purpose.”_ 13. In order to make available all the benefits or the rigors of the provisions contained in the Act, the apartment owners concerned shall execute the declaration by submitting himself to the applicability to the provisions of the Act. When such a declaration has not come forward, it has to be held that the Act has no application to the properties involved in the suit. Substantial question No.(ii) is answered R.S.A. No. 19 of 2013 & O.P.(C) No. 2672 of 2014 -: 14 :- in the said lines. 14. Another argument forwarded by the learned counsel for the appellant as well as respondents 2 and 3 is that when 53 cents of property is wholly divided among 40 apartment owners to whom flats were allotted from the apartment complex, each of such apartment owners became entitled to have title over 1/40[th] share over the said property and therefore, nothing is left behind. The argument was that, that part of Ext.P8, by which the wife of the plaintiff had transferred half of her undivided interest over 1/40 shares in the 53 cents of property, is void _ab initio,_ on the ground that the said land cannot be separated from the apartment sold to her. The argument was precisely that the apartment could be transferred along with that undivided interest over the land only and an independent transfer of either the undivided interest over the land or the flat cannot be made. In England, the said proposition holds good; whereas, in India a building in a property can be sold R.S.A. No. 19 of 2013 & O.P.(C) No. 2672 of 2014 -: 15 :- independently even without the transfer of the land, or the land itself can be sold independently without the building. 15. Mulla The Transfer of Property Act, 12[th] Edition, Page No.27 says: _“The classification as immovable property of things attached to the earth, bears some analogy to the English law of fixtures, but the maxims on which the English law is founded do not generally apply in India. Long before the TP Act was enacted, Paramanick’s case settled that it was the common law of India that buildings and other improvements do not by the mere accident of their attachment to the soil become the property of the owner of the soil. The general rule laid down by a Full Bench of the Calcutta High Court in the above mentioned case was as follows:_ _We think it should be laid down_ ## R.S.A. No. 19 of 2013 & O.P.(C) No. 2672 of 2014 -: 16 :- _as a general rule that, if he who makes the improvement is not a mere trespasser, but is in possession under any bona fide title or claim of title, he is entitled either to remove the materials restoring the land to the state in which it was before the improvement was made, or to obtain compensation for the value of the building if it is allowed to remain for the benefit of the owner of the soil--the option of taking the building, or allowing the removal of the material remaining with the owner of the land, in those cases in which the building is not taken down by the builder during the continuance of any estate he may possess.”_ Therefore, the said transfer as such cannot be said to be void. 16. At the same time, it is a matter of concern that the R.S.A. No. 19 of 2013 & O.P.(C) No. 2672 of 2014 -: 17 :- learned counsel for respondents 2 and 3 has pointed out that if every flat owners in the complex are permitted or allowed to transfer a fraction of their undivided interest over the property, that will invite disastrous consequences and every such transferees will forward a claim over the undivided shares in the property. On moral standards, the said argument seems to be correct. Legally speaking, one cannot stand in the way of such a transfer also. Even if such a transfer is made, the transferee is not going to get anything because of the fact that he cannot file a suit for partition so long as the building is there in the property. So long as the apartment as such is there, nobody can claim a specific share over the property, in which the apartment complex is situated and therefore, even in case of any such transfer of the fractional shares out of the undivided interest, there cannot be any disastrous consequence at all. In case, the apartment complex is not there, such transfer will lead to a situation, wherein, such transferees of fractional shares R.S.A. No. 19 of 2013 & O.P.(C) No. 2672 of 2014 -: 18 :- will get a right to have a partition by metes and bounds. 17. Now the validity of Ext.A8 has to be considered. Even though in a suit for injunction, the title need not always be an issue, when there is dispute regarding possession, one will have to follow the principle that possession follows title. For the limited appreciation of the possession and the legality of the possession claimed by the plaintiff over plaint B schedule item as well as plaint A schedule item, the validity of Ext.A8 as well as the title of the plaintiff over the said properties has also to be appreciated. The plaintiff has purchased the plaint schedule property through Ext.A8 executed by his wife Smt.Suma and another lady by name **.** Smt.Jaya Prabha 18. Originally, the title over plaint B schedule property traces back to Ext.A1. Ext.A1 Sale Deed is dated 17.08.1987, executed by one Sri.S.Padmanabhan, representing the land owner namely Sri.G.Narayanan Nair and also the builders namely, Anugraha Builders, in favour R.S.A. No. 19 of 2013 & O.P.(C) No. 2672 of 2014 -: 19 :- of Smt.Kamala Padmanabhan and Smt.Lekshmi Balu; whereby, the covered area of 3000 sq.ft. along with Flat No.303 and the undivided interest of 1/40[th] share over the 53 cents of property were transferred, for consideration. 19. Thereafter, through Exts.A3 and A4 respectively, Smt.Lekshmi Balu and Smt.Kamala Padmanabhan, sold the aforesaid properties covered by Ext.A1 to Sri.Gopalakrishnan Nair. Ext.A3 is dated 04.09.1991 and Ext.A4 is dated 05.09.1991. Thereafter, Sri.Gopalakrishnan Nair sold the properties covered by Ext.A3 and Ext.A4, to Sri.Sreekandan Nair through Ext.A5 dated 17.02.1999. Through Ext.A5, Sri.Sreekandan Nair derived title over the aforesaid apartment No.303 along with the 1/40[th] undivided interest over the 53 cents of property, and also the plaint B schedule property, which is the covered area having an extent of 3000 sq.ft. Subsequently, Sri.Sreekandan Nair, through Ext.A6, sold the plaint B scheduled covered area having No.303A on the ground floor of the building alone, to R.S.A. No. 19 of 2013 & O.P.(C) No. 2672 of 2014 -: 20 :- Smt.K.V.Jaya Prabha, for consideration. Ext.A6 is dated 24.06.2003. 20. As per Ext.A7 Sale Deed dated 15.02.2008, Smt.R.Suma, who is the wife of the plaintiff, purchased Flat No.106 along with 1/40[th] undivided interest over the 53 cents of property from one Smt.Nina Peter. It was thereafter, Smt.R.Suma along with Smt.K.V.Jaya Prabha, executed Ext.A8 in favour of the plaintiff. 21. Even though the learned counsel for respondents 2 and 3 have vehemently canvassed an argument that all the mischiefs in the case were done by the earlier office bearers of the appellant Association for enabling the plaintiff to moot unnecessary claims over plaint B schedule property, such pleadings do not find a place in the joint written statement filed by them. In the written statement, defendants 2 and 3 were seen travelling along with the 1[st] defendant and they had no rival claims against the 1[st] defendant or its earlier office bearers. R.S.A. No. 19 of 2013 & O.P.(C) No. 2672 of 2014 -: 21 :- 22. In this context, Ext.A2 registered agreement dated 14.02.1991, executed among the 1[st] defendant Association, M/s.Anugraha Builders and Smt.Kamala Padmanabhan along with Smt.Lekshmi Balu, assumes much importance. It is a tripartite agreement, mainly in respect of 3000 sq.ft. of covered area, which is nothing but plaint B schedule item. Smt.Kamala Padmanabhan and Smt.Lekshmi Balu were styled in Ext.A2 as owners. Ext.A2 says that _‘the owners are given the right to a covered area 3000 sq.ft. on the basement of the Woodlands Estate Apartment Complex,_ as per Ext.A1 _’_ . The agreement says that a dispute has arisen among the parties regarding the right to the covered area enjoyed by the owners, as every flat owner has 1/40[th] undivided and equal share over the entire 53 cents of the land on which the flats are constructed. 23. In fact, there cannot be any quarrel with regard to the land in question in relation to plaint B schedule property. As far as plaint B schedule property is concerned, any R.S.A. No. 19 of 2013 & O.P.(C) No. 2672 of 2014 -: 22 :- undivided interest over the land has not been conveyed along with it to any of the parties either through Ext.A1, Ext.A3, Ext.A4, Ext.A5, Ext.A6 or Ext.A8. So long as any undivided interest over the land has not been conveyed along with plaint B schedule item in those documents, the plaintiff being the holder of the plaint B schedule item, who claims title over plaint B schedule item through Ext.A8, cannot forward any further claim of an undivided interest over the land in which the building is situated. Therefore, the transfer of ownership over the plaint B schedule item, through any of the aforesaid documents, cannot militate against the claims of the 40 flat owners, each one of whom are enjoying 1/40[th] undivided interest over the 53 cents of property. Matters being so, there need not be any heartburn to any of the apartment owners relating to their rights over the undivided interest in respect of the 53 cents of property, in which the apartment complex is situated. Even then it seems that willingly, the owners of plaint B schedule item R.S.A. No. 19 of 2013 & O.P.(C) No. 2672 of 2014 -: 23 :- had entered into Ext.A2 agreement, necessarily favouring the 1[st] defendant Association and the flat owners. 24. Ext.A2 further says that there was a Memorandum of Understanding signed among the Association and the Builders and Owners on 10.12.1990, whereby such disputes were settled and that the owners had expressed their consent to abide by the terms of the Memorandum of Understanding in respect of the use of the covered area of 3000 sq.ft. The further recitals in Ext.A2 clearly show the terms and conditions arrived at among the parties. As per condition No.1, the owners had agreed to pay an amount of ₹1,000/- (Rupees one thousand only) per month to the Association in full and final settlement of all the demands/rights/claims made by the Association, for the period from October 1988 to May 1990 and thereafter, at the rate of ₹1,400/- (Rupees one thousand four hundred only) per month from June 1990 onwards for a period of two years, as _‘service charges for possession enjoyment of the_ R.S.A. No. 19 of 2013 & O.P.(C) No. 2672 of 2014 -: 24 :- _covered area of 3000 sq.ft.’_ The owners had agreed to pay all the taxes/duties/levies made by the Government, Local Bodies or any other Authority in respect of plaint B schedule property and that the Association shall never be called upon by the Builders/owners to share such duties/taxes/levies in respect of plaint B schedule item. 25. Even though a severe heartburn has been expressed on behalf respondents 2 and 3 that the other flat owners or the Association, as the case may be, may not get an opportunity to carry out proper maintenance to the drainage/ water/electricity systems, since all those pipes are passing through the pillars coming within the plaint B schedule item, Clause No.6 of the agreement is the answer to it, which specifically provides: _‘that the owner/Builder shall promptly attend to the maintenance of the drainage/water/electricity systems and lines inaccessible within the aforesaid covered area at their cost.’_ The said clause clearly wipes out the said apprehension forwarded by R.S.A. No. 19 of 2013 & O.P.(C) No. 2672 of 2014 -: 25 :- the learned counsel for respondents 2 and 3. When there is an agreement to that effect through Ext.A2, the said provision is clearly executable, and the owner is duty bound to attend to all the maintenance of the drainage/water / electricity systems and lines inaccessible within the aforesaid covered area, at the cost of the the owner. 26. Regarding Ext.A2, the learned counsel for the appellant as well as the learned counsel for respondents 2 and 3 have argued that Ext.A2 imposes a condition restraining alienation of the plaint B schedule item and therefore, the claim of the owners over the plaint B schedule item was reduced to a mere licence. At the same time, Ext.A2 speaks otherwise. It is true that as per clause No.8 of Ext.A2, a condition has been incorporated as follows: _‘that the 2[nd] party shall not lease out or transfer possession of the 3000 sq.ft. of covered area in the basement to any person or persons or Association or Body Corporate for any purpose which would directly or indirectly cause nuisance,_ R.S.A. No. 19 of 2013 & O.P.(C) No. 2672 of 2014 -: 26 :- _annoyance, disturbance of any nature to the residential accommodation of the remaining part of the apartment building complex and any such matters shall be done only on effective consultation with the association.’_ The aforesaid clause does not impose a blanket ban to the transfer of plaint B schedule item. 27. The said restrictive provision only creates a restriction to make a transfer or lease of plaint B schedule item, for any purpose, which would directly or indirectly cause nuisance, annoyance, or disturbance of any nature to the residential accommodation of the remaining part of the apartment building complex. In fact, the added provision that _‘any such matters shall be done only in effective consultation with the association’_ seems to be an additional qualification, in case of a transfer or lease, which tend to create nuisance, annoyance, disturbance of any nature. Even otherwise, for such a transfer by way of sale or lease, what is required to invite such a transferee or lessee as the R.S.A. No. 19 of 2013 & O.P.(C) No. 2672 of 2014 -: 27 :- case may be, is to have an effective consultation with the Association. The agreement does not say that any permission is required from the Association for such transfer or lease. What is contemplated is an effective consultation. The position is made clear by the subsequent clause in the agreement, which is as follows: _‘However, such prior consultation shall not fetter/deprive the right of the owners to let out the premises in the event of willful withholding of consent by the Association.’_ That means that the Association cannot stand in the way of a transfer or lease of the premises by the owners. 28. There is a further restrictive clause in Ext.A2 that owners or their lessees shall not forward any claim for parking facilities in par with the owners of the apartments. It has been fortified in clause No.12 of Ext.A2 that _‘this agreement does not in any manner amend, modify, alter or infringe the rights of the owners or the members of the Association contained herein before and it is agreed that the_ R.S.A. No. 19 of 2013 & O.P.(C) No. 2672 of 2014 -: 28 :- _rights of the owners to the covered area of 3000 sq.ft. as stipulated in Sale Deed No.2115 dated 17.08.1987 in respect of Flat No.303 are indisputable.’_ Through clause No.14 it has been further fortified that _‘nothing contained in_ Ext. _A2 shall confer or deemed to have conferred any right on the Association in respect of the covered area aforesaid and nothing therein shall deprive/deemed to have curtailed the right of the owner in dealing with the covered area except to the extent agreed in_ Ext. _A2.’_ Therefore, there is no meaning in contending that on the execution of Ext.A2, the owners have lost their title or possession or enjoyment over the plaint B schedule property. 29. Apart from creating some restrictive measures, and mainly by imposing service charges on the Association at an exorbitant rate, no other restrictions are there for the use and occupation of plaint B schedule property by the owners. Much waters have flown under the bridge after the execution of Ext.A2. Repeatedly, plaint B schedule property R.S.A. No. 19 of 2013 & O.P.(C) No. 2672 of 2014 -: 29 :- was transferred from hands to hands. Even though the learned counsel for the appellant and respondents 2 and 3 have argued that all the said documents, including Ext.A2, were cooked up at the instance of the plaintiff with the junction and active assistance and connivance of the then office bearers of the Association, it cannot be said that the plaintiff had predicted even in the year 1987 that he would purchase the property in the year 2008, for which he had to create Ext.A1, Ext.A2, Ext.A3, Ext.A4, Ext.A5 and Ext.A6. The aforesaid case attempted to be forwarded by the learned counsel for the appellant as well as respondents 2 and 3 is not palatable or digestible. 30. The 1[st] respondent has filed I.A.No.1175 of 2017 in R.S.A.No.19 of 2013 under Order XLI Rule 27 of the Code of Civil Procedure and produced Annexures A and B. Annexure A is the attested copy of the plaint in O.S.No.1656 of 1996 of the Munsiff's Court, Thiruvananthapuram filed by the 1[st] defendant Association as plaintiff, represented by its R.S.A. No. 19 of 2013 & O.P.(C) No. 2672 of 2014 -: 30 :- President P.A.Narain, against Sri.Gopalakrishnan Nair, who purchased plaint B schedule item through Ext.A3 and Ext.A4. Through Annexure-A, the said plaintiff had demanded a total amount of ₹55,260/-, by way of arrears of service charges in respect of the covered area bearing TC No.17/2432(1) as on 31.08.1996. The said covered area is plaint B schedule item. Annexure-B is the attested copy of the judgment passed by the III Additional Munsiff's Court, Thiruvananthapuram, in the said suit, by which the said suit was decreed in terms of the plant. According to the learned counsel for the 1[st] respondent, the decree amount was also realised. 31. Annexure-B clearly shows that Ext.A2 in this case was produced by the 1[st] defendant Association as Ext.A8 in the said suit. In the affidavit in support of I.A.No.1175 of 2017, the 1[st] respondent has clearly affirmed that he was unaware of O.S.No.1656 of 1996 and the proceedings and the decree. Matters being so, there is no deliberate laches R.S.A. No. 19 of 2013 & O.P.(C) No. 2672 of 2014 -: 31 :- on the part of the 1[st] respondent in not producing Annexures A and B before the courts below. Therefore, the said documents can be permitted to be produced in the Second Appeal. When the said documents did not require any formal proof, the said documents can be marked as Exts.A30 and A31. In the light of Exts.A30 and A31, the defendants cannot forward any contentions regarding the validity of Ext.A2. 32. Over and above it, Ext.A22 also assumes importance. Ext.A22 is letter dated 17.06.2008 issued by the Secretary of the 1[st] defendant Association to the plaintiff. By referring Ext.A2, the 1[st] defendant Association has acknowledged the status of the plaintiff as owner of the hall in the basement of the apartment, which is nothing but plaint B schedule item. Through Ext.A22, the 1[st] defendant Association has demanded an amount of 2,53,750/- as arrears of service charges from the plaintiff in respect of the plaint B schedule item. In the light of Exts.A30, A31 and R.S.A. No. 19 of 2013 & O.P.(C) No. 2672 of 2014 -: 32 :- A22, the 1[st] defendant cannot be heard to say that the plaintiff has not derived title over plaint B schedule item. 33. The learned counsel for the plaintiff has invited the attention of this Court to the decision in **Ganesh Panigrahi** **v. Jura Sahu and others** [AIR 1973 Orissa 232] and **Mulji Umershi Shah and etc. v. Paradisia Builders Pvt. Ltd., Mumbai and others** [AIR 1998 Bombay 87], and argued that a person, who wants a relief of injunction from a court of law should approach the court with clean hands. It is a well known preposition of law that a person, who wants to seek equity must bring equity. The decisions noted above are based on the aforesaid principle of law. According to the learned counsel for the appellant and respondents 2 and 3, the plaintiff had clandestinely purchased the half right of his wife over 1/40[th] undivided interest in the 53 cents of property in order to validate his purchase of plaint B schedule item through Ext.A8. As stated earlier, the plaintiff need not purchase such a half right over the undivided share for the R.S.A. No. 19 of 2013 & O.P.(C) No. 2672 of 2014 -: 33 :- validity of the purchase of plaint B schedule property. Even without such a right over any undivided interest, the plaintiff could have well purchased plaint B schedule property. Therefore, the argument forwarded by the learned counsel for the appellant and respondents 2 and 3 that such a purchase was done by the plaintiff from his wife is for filing a suit for injunction against the Association, is devoid of merits. Even without a purchase of the said fractional share over the undivided interest, the plaintiff could have well maintained a suit for injunction in respect of plaint B schedule property, provided he establishes his possession over the property. 34. As found earlier, when in a case like this, possession follows title, it has to be held that the plaintiff has been in possession over the plaint B schedule property. The plaint B schedule property was a subject matter of repeated transfer right from the execution of Ext.A1. Over and above it, the 1[st] defendant cannot approbate and reprobate. The R.S.A. No. 19 of 2013 & O.P.(C) No. 2672 of 2014 -: 34 :- 1[st] defendant endorses the validity of Ext.A2. In the same breadth, now they are challenging that the owners had no right over the property. If at all, the Association had any right over the plaint B schedule property, through the execution of Ext.A2, they had waived all such rights over the property through the intentional relinquishment of such rights, if any. 35. The learned counsel for respondents 2 and 3 have invited the attention of this Court to **Yadarao Dajiba shrawane (Dead) by LRs. v. Nanilala Harakchand Shah (Dead) and others** [(2002) 6 SCC 404] and argued that when the judgment of final court of act is based on misinterpretation of documentary evidence or on consideration of inadmissible evidence or ignoring material evidence, the High Court in Second Appeal is entitled to interfere with the judgment. Here, in this particular case, I do not find anything to show that the lower appellate court has misinterpreted any of the documents or ignored any R.S.A. No. 19 of 2013 & O.P.(C) No. 2672 of 2014 -: 35 :- material evidence. 36. It has been argued that the plaintiff had initially procured an order of temporary injunction from the trial court and also an order for the appointment of a Commissioner. It has been further contended that under the cover of the said order of temporary injunction, the plaintiff barged into plaint B schedule item and reduced it into his possession forcibly and it was thereafter, he brought the Commissioner to the spot on the 7[th] day. From the mere fact that the Commissioner had chosen to visit the property on the 7[th] day of his appointment as Commissioner, it cannot be said that, the visit of the Commissioner was prevented by the plaintiff, for enabling the plaintiff to reduce plaint B schedule item into his possession. In the absence of any further evidence on that aspect, it cannot be concluded that the plaintiff had reduced the property into his possession, after obtaining the order of temporary injunction in his favour. Therefore, the decision in **Premji Ratansey Shah and** R.S.A. No. 19 of 2013 & O.P.(C) No. 2672 of 2014 -: 36 :- ## **others v. Union of India and others** [(1994) 5 SCC 547] has no application in the present case. It can be said that, the plaintiff is a trespasser in the premises and the plaintiff has sought for an injunction against the rightful owner. At any stretch of imagination, 1[st] defendant Association or respondents 2 and 3 cannot be styled as rightful owners of plaint B schedule item, especially, in view of the clear admissions of the Association in Ext.A2. 37. Apart from all the above, the learned counsel for the 1[st] respondent has pointed out that Ext.A1 is the first document executed by the Builders, representing the original owner of the property, in favour of Smt.Kamala Padmanabhan and Smt.Lekshmi Balu. Ext.A1 clearly shows that plaint B schedule item, having an extent of 3000 sq.ft. covered area, which forms part of the apartment complex, was retained by the Builders and through Ext.A1, they had chosen to sell plaint B schedule item for consideration. A plan is appended with Ext.A1, which clearly R.S.A. No. 19 of 2013 & O.P.(C) No. 2672 of 2014 -: 37 :- shows that plaint B schedule item is numbered as ‘303A’. Ext.A1 is dated 17.08.1987. Any other document prior in point of time has not been produced by the defendants. Even though the learned counsel for the appellant and respondents 2 and 3 have challenged that Ext.A1 cannot be said to be the first document executed in relation to the apartment complex, they could not point out any other document prior in point of time to Ext.A1. Therefore, Ext.A1 has to be considered as the first document executed in relation to the apartment complex. When the covered area having an extent of 3000 sq.ft. was sold out by the Builders through Ext.A1, to the owners, all the holders of the subsequent documents are bound by the terms contained in Ext.A1, being the document executed at the earlier point of time. Over and above it, in all the other Sale Deeds produced by the plaintiff relating to the sale of various apartments, a restrictive clause was imposed to the effect that such vendees should not interfere with the user of plaint R.S.A. No. 19 of 2013 & O.P.(C) No. 2672 of 2014 -: 38 :- B schedule property by its owners. Even though the learned counsel for respondents 2 and 3 has pointed out that such a clause has not been incorporated in Ext.B1, Ext.B1 was executed on 18.06.1988. At the same time, the copy of the very same plan appended with Ext.A1 is seen appended with Ext.B1 also. In the plan appended with Ext.B1 also, plaint B schedule item has been clearly shown as ‘303A’. Therefore, either the Association or defendants 2 and 3 cannot be heard to say that the plaint B schedule item was not in existence at the time of the institution of the suit. The suit was instituted in the year 2008; whereas, Ext.A1 and Ext.B1 were executed in the year 1987 and 1988 respectively. When plaint B schedule item having the number ‘303A’ was clearly identified and plotted out in the plans appended with Ext.A1 and Ext.B1, the 1[st] defendant Association cannot contend that such a property was not in existence. 38. Even though the learned counsel for respondents R.S.A. No. 19 of 2013 & O.P.(C) No. 2672 of 2014 -: 39 :- 2 and 3 has argued that through the execution of Ext.A8, the attempt of the plaintiff is to snatch away more than 7 cents of property from the 53 cents of property, there is no merit in the said argument. The plaintiff has not forwarded any claim over the landed property in which plaint B schedule item is situated. Ext.A8 does not confer any right over any undivided interest over the land in respect of the plaint B schedule item on the plaintiff. Therefore, the said apprehension forwarded by the defendants is out of place. 39. From all the above, it has clearly come out that there is absolutely nothing to interfere with the judgment and decree passed by the lower appellate court. The lower appellate court is perfectly justified in passing the impugned judgment. The lower appellate court has appreciated all the facts in its correct perspective and has arrived at the correct conclusion. Matters being so, this Second Appeal is devoid of merits and is only to be dismissed, and I do so. 40. The learned counsel for the 1[st] respondent has R.S.A. No. 19 of 2013 & O.P.(C) No. 2672 of 2014 -: 40 :- pointed out that after the appellate decree, the 1[st] defendant Association has gone to the extent of putting boulders on the pathway leading to the plaint B schedule item with a view to obstructing the access of the plaintiff to plaint B schedule item. When the defendants have deliberately violated the decree of injunction passed by the lower appellate court, the plaintiff put the decree in execution. Through the interim order in OP(C) No.2672 of 2014, the execution proceedings stand stayed. OP(C) No.2672 of 2014 is liable to be dismissed in view of the dismissal of the Second Appeal. At the same time, an opportunity is granted to the Association and its office bearers to remove the obstructions created on the pathway, within a period of two months from today, in order to avoid an order against them under Order XXI Rule 32 of the Code of Civil Procedure. In case of non-compliance, the execution court shall proceed with the execution proceedings. R.S.A. No. 19 of 2013 & O.P.(C) No. 2672 of 2014 -: 41 :- In the result, the Regular Second Appeal and the Original Petition stand dismissed. In the nature of these proceedings, parties shall bear their respective costs. All pending interlocutory applications in the second appeal are closed. **Sd/- B. KEMAL PASHA, JUDGE.** ul/dsv/- [True copy] P.S. to Judge.