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2025 DIGILAW 580 (KER)

NAVYA KIRAN v. K. P. RAJENDRAN

2025-03-13

M.A.ABDUL HAKHIM

body2025
JUDGMENT : 1. The 2 nd defendant in a suit for mandatory and prohibitory injunction is the appellant. The Trial Court decreed the suit which was confirmed by the First Appellate Court. 2. The plaintiffs are the husband and wife. They are the aged parents of the 1 st defendant. The 2 nd defendant is the wife of the 1 st defendant. The plaint schedule property and the residential building therein belonged to the plaintiffs as per Ext.A1. Originally, the suit was filed for prohibitory injunction. Thereafter, the suit was amended, including the prayer for mandatory injunction compelling the 2 nd defendant to vacate the house in the plaint schedule property on the ground that the 2 nd defendant trespassed into the plaint schedule property, breaking open the lock of the house. 3. The Trial Court decreed the suit directing the 2 nd defendant to vacate the house in the plaint schedule property by taking all her belongings within one month from the date of the judgment. Further, the defendants are restrained by a decree of permanent prohibitory injunction from trespassing into the house in the plaint schedule property without prior permission of the plaintiffs and committing waste therein. 4. I heard the learned counsel for the appellant Sri. Rajesh V. Nair and the learned counsel for the respondents 1 and 2 Smt.C.Leena. 5. The learned counsel for the appellant contended that the possession of the 2 nd defendant can only be a legal possession as she has a right to reside in the shared household as per Section 17 of the Protection of Women from Domestic Violence Act, 2005. Considering her right to remain in possession, the learned Magistrate passed Ext.B9 Residence Order in favour of the 2nd defendant. It is true that the 2 nd defendant can be evicted from the premises in accordance with the procedure established by law. But since the possession of the 2 nd defendant is that of a legal possession, a suit for mandatory injunction will not lie. The plaintiffs should have filed a suit for recovery of possession. The learned counsel invited my attention to the definition of the respondent in Section 2(q) of the DV Act to substantiate the contention that the respondent mentioned therein will include the 1 st plaintiff also, who is her father-in-law. The plaintiffs should have filed a suit for recovery of possession. The learned counsel invited my attention to the definition of the respondent in Section 2(q) of the DV Act to substantiate the contention that the respondent mentioned therein will include the 1 st plaintiff also, who is her father-in-law. The learned counsel further contended that there is a clear mandate under Section 19(1)(f) of the DV Act to secure the same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same. So only after ensuring such accommodation or payment of rent by the plaintiffs the Court can direct the 2 nd defendant to vacate the plaint schedule building. The learned counsel relied on the decision of this Court in Karunagappally Coir Vyavasaya Co-Operative Society Ltd v. Sankaran Namboothiri Ramachandran Namboothiri, [ 2025 (1) KLT 487 ] to substantiate the point that when legal possession is with the defendant, a suit for a mandatory injunction could not be maintainable to evict him. 6. On the other hand, the learned counsel for the contesting respondents contended that the 2 nd defendant does not have a case that the 1 st defendant/her husband is having any right over the plaint schedule property. In view of the Section 17(2) of the DV Act, it is clear that the aggrieved person can be evicted in accordance with the procedure established by law. It is well settled by the decision of the Hon'ble Supreme Court in Archana Goindi Khandelwal v. Rajesh Balkrishnan Menon and Others, [ 2022 (2) KHC 540 ] that the dispute between husband and wife under the DV Act shall not preclude and affect the right of the landlord to the possession if otherwise is entitled. The learned counsel also cited the decision of the Hon’ble Supreme Court in Satish Chander Ahuja v. Sneha Ahuja, [ 2020(5) KHC 496 ] to substantiate the point that a suit for mandatory injunction is perfectly maintainable against the aggrieved person under the DV Act. 7. I have considered the rival contentions. 8. The learned counsel also cited the decision of the Hon’ble Supreme Court in Satish Chander Ahuja v. Sneha Ahuja, [ 2020(5) KHC 496 ] to substantiate the point that a suit for mandatory injunction is perfectly maintainable against the aggrieved person under the DV Act. 7. I have considered the rival contentions. 8. Even though the parties have advanced several contentions with regard to cruelties from the other party, I do not propose to go into the details of those contentions as the same are not relevant or material as far as the present suit is concerned in which legal right of the 2 nd defendant to remain in the house alone is relevant. Of course, she has the right to continue her residence till she is legally evicted from there. Such an eviction is not possible if she proves a legal right to remain there apart from the right on the basis of the Ext.B9 Residence order passed by the learned Magistrate under the DV Act. The 2 nd defendant could not show any legal right to remain in the plaint schedule property, which belonged to her father-in-law apart from her right under Ext.B9 Residence Order. 9. Section 17(2) of the DV Act specifically provides that the aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law. It is true that the house in the plaint schedule property is the shared house of the 2 nd defendant. It is true that the 2 nd defendant has obtained Ext.B9 Residence Order from the Criminal Court under Section 19 of the DV Act. Admittedly, the 1 st defendant/husband of the 2 nd defendant does not have any right of interest in the plaint schedule property or the house therein. In such a case, the 2 nd defendant also cannot claim any legal right over the plaint schedule property. The question is whether a suit for mandatory injunction is a procedure for eviction established by law as provided under Section 17(2) of the DV Act. 10. The plaint schedule property belonged to the plaintiffs. The 2 nd defendant started residing in the house situated in the plaint schedule in her status as the wife of the 1 st defendant, who is the son of the plaintiffs. 10. The plaint schedule property belonged to the plaintiffs. The 2 nd defendant started residing in the house situated in the plaint schedule in her status as the wife of the 1 st defendant, who is the son of the plaintiffs. In such case, the occupation or residence of the 2 nd defendant could only be a permissive occupation which does not amount to legal possession. A suit for recovery of possession is required only if the defendant is in legal possession of the property. Here, the legal possession remained with the plaintiffs and the 2 nd defendant has only a right to reside. Even though the terminology used in Section 19 of the DV Act is ‘possession’ of the aggrieved person, the purpose behind the provision is to ensure the residence of the aggrieved person and not to confer legal possession of the residential building to the aggrieved person. In such case, on the strength of Ext.B9 Residence Order obtained by the 2 nd defendant she could not claim legal possession of the plaint schedule property. At best, her residence could only be treated as ‘occupation’ as differentiated from ‘possession’. Since the 2 nd defendant does not have legal possession of the plaint schedule property or the house therein, a suit for mandatory injunction is perfectly maintainable against her to compel her to vacate the premises. As rightly pointed out by the learned counsel for the contesting respondents, the issue is covered by the aforesaid decision of the Hon’ble Supreme Court Satish Chander Ahuja (supra) that suit for mandatory injunction is perfectly maintainable to evict the aggrieved person under the DV Act. Suit for mandatory injunction is a procedure established by law referred in Section 17(2) of the DV Act to evict or exclude the aggrieved person, even if she obtains a residence order under Section 19 of the DV Act. 11. It is true that the 1 st plaintiff, who is the father-in-law of the 2nd defendant, will come within the definition of respondent under Section 2 (q). Section 19(1)(f) order could be passed directing the respondent to secure the same level of alternate accommodation or to pay rent to the aggrieved person if the circumstances so require. It is an order that could be passed by the Magistrate as an alternative for protecting the existing residence. Section 19(1)(f) order could be passed directing the respondent to secure the same level of alternate accommodation or to pay rent to the aggrieved person if the circumstances so require. It is an order that could be passed by the Magistrate as an alternative for protecting the existing residence. Such provision could be exercised only by the Criminal Court under the DV Act and the Civil Court dealing with eviction of the aggrieved person has no duty to ensure alternate accommodation to the aggrieved person. The right of the aggrieved person under Section 19(1)(f) of the Act is still available to the 2 nd defendant to enforce the same through the provisions of the DV Act. But the facts and circumstances make it amply clear that the plaintiffs have no obligation to provide alternate accommodation. Such right could be enforced only against the 1 st defendant/husband of the 2 nd defendant. 12. The First Appellate Court has entered a finding that the right of the 2 nd defendant is that of a customary right and not that of a license. When the 2 nd defendant has been residing in the house in the plaint schedule property on the basis of her status as the daughter-in-law of the plaintiffs and on the basis of an order passed by the learned Magistrate under the provisions of the DV Act, it could not be said that it is a customary right. It is only a permissive occupation. Such an occupation is protected by Ext.B9 Residence Order. Hence, I am of the view that the finding of the First Appellate Court that the occupation of the 2 nd defendant arises from customary right, not from license, is incorrect. Even if such a finding is interfered with, it would not change the ultimate decision rendered by the First Appellate Court. The Trial Court, as well as the First Appellate Court, has correctly understood and appreciated the pleadings and evidence in the case and came to the right conclusion. No substantial question of law arises in the matter. The Regular Second Appeal is liable to be dismissed. 13. The learned counsel for the appellant pointed out that the 2 nd defendant and the children have no place to go if they are evicted immediately, and hence, a reasonable time of one year may be granted for shifting their residence to find a suitable alternate accommodation. The Regular Second Appeal is liable to be dismissed. 13. The learned counsel for the appellant pointed out that the 2 nd defendant and the children have no place to go if they are evicted immediately, and hence, a reasonable time of one year may be granted for shifting their residence to find a suitable alternate accommodation. The said prayer is strongly opposed by the learned counsel for the contesting respondents, citing that the 2 nd defendant has been causing all sorts of troubles and nuisance to the aged plaintiffs. 14. The suit is of the year 2021, and it is an admitted fact that the plaintiffs and, the 2 nd defendant and the children have been residing together during the pendency of the proceedings till today. Considering the facts and circumstances of the case, though I dismiss the Regular Second Appeal, I permit the 2 nd defendant to continue residence with her children in the house situated in the plaint schedule property for a period of six months from today subject to the condition that the 2 nd defendant shall file an Affidavit within two weeks from today before the Execution Court undertaking to vacate the premises within a period of six months from today.