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          Arguments were heard.

          7.      The complainant owned an extent of 36.52 cents of property comprised in survey nos. 341B, 342 & 343 1-3 of Thycaud village by virtue of settlement deed no.735/1975 executed by her mother. It is quite evident from evidence particularly the evidence of PWs 2 & 3 that the property is well bounded on all four sides. The definite allegation is that the area in the possession of the complainant as per her title deed is 40.5 cents. It is quite evident that the complainant is in possession of more area than mentioned in her title deed though the available evidence indicates slight variation in the actual extent. DW1 admitted that the entire property within the four boundaries was given possession of to the opposite parties. This was pursuant to Ext.A1 agreement between the complainant and the opposite parties . The first opposite party being a firm was represented by opposite parties 2 & 3 the partners. EXt.A1 dated 10.11.2004 was a joint venture agreement, the terms of which are very important. It is recited in Ext.A1 that in order to own modern residential accommodation and avail better returns the complainant desired to sell a portion of the A schedule property. Therefore the opposite parties conceived a project for constructing a building complex on the land where by the complainant could sell a portion of the land to the nominees of the opposite parties the developers, who are desirous of owning built up area apartments. As per the said scheme in consideration of the convenants in Ext.A1 and in consideration of 20.5% of the total actual saleable area ( including share of common areas ) in the building complex proposed to be constructed by the opposite parties on obtainment of necessary sanction and building permit which includes the undivided interest in the apartments to be given to the complainant or her nominees she agreed to sell to the opposite parties or their nominees proportionate undivided share in the property described in the B schedule to Ext.A1 in full satisfaction of their rights, claims, title and demands in the land described in the A schedule to Ext.A1. The opposite parties agreed that they shall have no manner of right title or interest in the undivided interest in the land retained by the owner for holding their residential space nor to the portion of the residential built area, so built for the complainant or her nominees. As per Clause 2 the opposite parties agreed to give the complainant one covered car parking area for each of the residential apartments to be given to her. It is specified in Clause 3 that the built up area consisting of residential areas to be handed over to the complainant by the Skyline builders shall be the actual total saleable area which includes proportionate share of common area also. Any difference ultimately arising in the built up area on account of apartment design restriction shall be compensated by the developers (opposite parties) to the owner ( complainant ) at the rate of Rs.1400 per sq.ft . It is also specified that the saleable area of an apartment shall be the apartment area indicated in the floor plan of the project brochure. The opposite parties agreed to pay Rs. 7,00,000/- to the complainant as refundable deposit. The complainant on her part agreed to abide by the rules and regulations framed by the association of the owners to be formed and in case of default by a majority of owners of apartments space in the proposed residential complex for the maintenance of common amenities and to contribute for the same in proportion to the built up area owned by her. The complainant also agreed to deposit with the developer at the time of taking possession of the agreed built up area what ever amount is chargeable as maintenance deposits for the maintenance of common amenities. She also agreed to pay all taxes rates, levies etc with respect to the allotted built up area as well as all service connections and cable charges and meter rent charges for electricity water supply and telephones as per any present or future statute or law and that in case of arrears the amount would bear interest at the rate of 18% per annum. These are the main terms of Ext.A1 agreement relevant in the present context.

          11.    Then as per Ext.A1 agreement towards the consideration for making available the property of the complainant for the joint venture She was entitled to 20.50 % of the total actual saleable area including share of common areas in the building complex proposed to be constructed by the opposite parties on her property. After construction, towards the 20.50 % of the saleable area due to the complainant 8 apartments with 8 car parks were set apart by the opposite parties. Ext.A3 shows this. Out of the 8 flats and 8 car parks set apart to the complainant seven flats and seven car parks were allowed to be taken possession of by her and the opposite parties retained one flat namely Flat No.6 A with proportionate car parking and common areas saying that if 8 flats are given to the complainant she would get 512 sq.ft of saleable area including share in common areas more than actually due to her as per the agreement. As per the agreement itself the opposite parties were entitled to realize value for the excess area from the complainant at the rate of Rs.1400 per sq.ft . This appears to be the immediate provocation for the complaint. The complainant further alleges that considering the construction made by the opposite parties really if eight flats only are allotted there would be deficiency of 2161.61 sq.ft area. Considering the fact that the entire extent of 40.5 cents in the possession of the complainant was given to the opposite parties for construction there would be deficiency of 3774.28 sq.ft area to the complainant if only 8 flats are allotted.

          14.    It also appears from Ext.B2 ( series ) of sale deeds that opposite parties 2 & 3 invoking their right under Ext.A2 power of attorney executed by the complainant sold the 30 flats retained by them pursuant to Ext.A1 agreement to various buyers . Coming to the main grievance of the complainant that the eight flats with car parks and proportionate common areas do not represent 20.50% of the total saleable area including share in common areas, the main evidence adduced are the following. At the behest of the complainant PW3 an Executive Engineer retired from the service of the KSHB measured the existing structure with reference to the Corporation approved plan and prepared Ext.A10 report Not only that PW3 prepared the report without notice to the opposite parties, it appears that he has not prepared an impartial report. He has not bothered to calculate the area of 8 flats common areas and open space separately and at the same time his interest in the complainant is evident from the fact that he arrived at the total area of land as 40.16 cents even without measuring the same. So the evidence of PW3 and his report Ext.A10 are not reliable pieces of evidence.

          17.    So the possible conclusions that emerge are the following. As per  Schedule A to Ext.A1 all the piece and parcel of land comprising of 40.5 cents approximately ( 36.512  cents as per title deed) in survey nos.343    1 - 3 343-B and 342 in Thycadu village, Thiruvananthapuram Taluk with three buildings there on was made the subject matter of the joint venture . As per the agreement 20.50 % of the total actual saleable area including share in common areas in the building complex proposed to be constructed by the opposite parties on the A schedule land was agreed to be given to the complainant or her nominees as consideration for making available the land for construction. So the subject matter of the joint venture was the land of the complainant over which she had title as well as possession without title. The available evidence clearly indicates that this  well bounded area was made available for construction of the building complex and  in fact building complex composed of 38 flats, equal number of car parks and common areas was constructed. No doubt the entire area was utilized for construction. But it is a fact that can not be denied that construction can be had only as per approved municipal corporation permit and plan. It is also mandatory that on all four sides of the building areas should be set apart as open space. The construction can not be made over the entire area. No violation of any building rules or corporation approved plan or permit is brought out in evidence. So apparently the case of the opp.parties that the building complex as shown in the corporation approved plan and permit was constructed is to be accepted. At the same time the total saleable area comprises of common areas as well. In short, the complainant would be entitled to 20.5 % of the floor area of the building 20.5 % of the car parking area and 20.5 % of the common areas. She can not claim 20.5 % of the floor area of the building in relation to the total area made available for construction. So really there is no acceptable evidence to show that the eight flats along with the 8 car parks and shared common areas do not form the     20.5 % of the total extent of property made available for constructing the building complex.