- (1.)Appellant (first defendant) challenges the order of the I Additional Sub Judge, Thrissur in I.A. 2089 of 1992 in O.A. 1020 of 1987. Plaintiffs (respondents) filed the petition for temporary injunction. Injunction was granted by the Trial Court and the first defendant (appellant) is restrained from committing acts of waste and transformation of the plaint schedule property. He is also injuncted from constructing any new structures in the property. He is also injuncted from starling or conducting any business or causing any inconvenience to the plaintiffs.
(2.)Learned counsel for the first defendant submitted that the only objection to the impugned order is with regard to the injunction that has been granted by the Trial Court prohibiting any business in the premises. It is submitted by him that as a coowner first defendant has every right to use the property for business purpose even though the petition schedule building is a residential one. Learned counsel for the second plaintiff (second respondent) submitted that the Court below was justified in granting the injunction as against the use of a portion of the residential building for business purpose by the first defendant. Counsel pointed out that the subject matter of the suit for partition is the building in the plaint schedule property and if the first defendant is allowed to start a business it would cause irreparable injury and hardship to the second plaintiff (second respondent) who is residing in the house.
(3.)The question that arises for consideration is whether the first defendant, a coowner can be prevented from doing business in the property. There is considerable merit in the contention of the second plaintiff that starting of a business in the front room would cause lot of inconvenience to the second plaintiff who resides in the very same building. Contention of the first defendant that he wants only to put an almirah in the front room to do the business and that it would not cause any annoyance or inconvenience to the second plaintiff is not tenable as the proposed business, even according to the first defendant, has to be carried on in the front room. This would definitely cause inconvenience and annoyance to the second plaintiff who is residing in the building. Merely because the first defendant is a coowner he cannot be allowed to appropriate to his exclusive use any portion of the building. As the first defendant is only one of the coowners of the property and as all the coowners are in possession of the undivided property, he cannot appropriate to his exclusive use any portion of the property. Contention of the second plaintiff that if the first defendant is allowed to do business in the residential building which is a coownership property it would virtually result in a compulsory partition in his favour or at any rate it would create insurmountable hurdles in the event of partition cannot be brushed aside.
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