Purchaser Of Undivided Share Cannot Be Allowed To Take Advantage Of Wrongful Construction On Property: Karnataka HC
|The Karnataka High Court has observed that the purchaser of an undivided share from a coparcener cannot insist on allotment of a particular developed portion in the partition when the construction was without the consent of the other coowners.
In that context, the Bench of Justice HP Sandesh observed that, "it has to be noted that the property purchased is unidentified and he purchased the property from one co-owner and construction was made after filing of suit. He cannot claim advantage of out of buildings wrongfully put up...The Bombay High Court also held that the defendant carrying constructions on said plot pending suit, it would at his own risk, party making such construction pending litigation cannot claim benefit of partition unless agreed by both the parties. In the case on hand the plaintiff and other defendants have not given any consent...invoking Section 54 that purchase of undivided share of co-sharer if he claims any possession, he cannot have a better title than what Vendor had and if any construction is made, he cannot seek for the particular constructed area."
In the same regard, it was further observed that, "he had put up the construction wrongfully when the property was not identified and property what he has purchased is undivided property. Apart from that sale is also not by all the owners. When such being the case, the appellant cannot be placed in better place and his intention is to take the advantage of the construction made by him, the same is in violation of the rights of the other parties".
Counsel CM Nagabhushan and Counsel Ananda K appeared for the appellant, while Counsel MR Vijaya Kumar and Counsel G Balaji Naidu appeared for the respondents.
The case involved a dispute filed by legal representatives of B.S. Nagaraj, seeking partition and separate possession of 1/3rd share in certain properties. The Trial Court decreed the suit, awarding the plaintiff 1/3rd share and granting a similar share to defendant Nos. 5 to 9.
The appellant challenged this, which was dismissed. Subsequently, FDP proceedings were initiated. The Trial Court appointed a commissioner, and after several developments, including objections, recalls, and fresh reports, the Trial Court accepted the commissioner's final report.
The appellant filed an appeal, arguing against the property allotment. The First Appellate Court, in its decision, disagreed with the appellant's contentions. The appellant contended that the Courts overlooked objections raised during constructions, emphasizing equitable partition. The Trial Court's refusal to consider the appellant's construction-related contentions was challenged, citing records that contradicted this claim.
The Court observed that, "The First Appellate Court also taken note of the fact that final decree cannot go beyond the preliminary decree and one of the several co-sharers of joint undivided property has no right to erect the building on land which forms part of such property so as to materially alter the conditions thereof without consent of his co-sharer. It is important to note that if such prayer is considered, it is nothing but a person who is having money and power if it starts construction in the property which is convenient to him... He cannot take the advantage of misusing his powers and continuing the construction even after filing of the suit."
Subsequently, the appeal was dismissed.
Appearances:
Appellant: Counsels CM Nagabhushan, Ananda K
Respondents: Counsels MR Vijaya Kumar, G Balaji Naidu
Cause Title: Papanna A vs BN Siddeshwari & Ors.
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