Pushpadasan vs Sheela Jerald

P. Bhavadasan, J.—Two interlocutory applications, namely, I.A. Nos. 2491 of 2011 and 2658 of 2011 were disposed of by a common order. Both the applications stood allowed. Two Civil Miscellaneous Applications filed by the aggrieved parties against those orders were dismissed. These Original Petitions are directed against those two orders.

The facts absolutely necessary for the disposal of these Original Petitions are as follows:

The plaintiffs in the suit, namely the respondents herein, were residing in the house in question which was owned by the husband of the first plaintiff, who by virtue of Ext. A2 sale deed dated 10.11.2010 assigned the property in favour of the defendant. The case put forward by the plaintiffs was that the husband of the first plaintiff had deserted her and he had demanded her to vacate the house. With the intention of ousting her and her children from the house, a fraudulent document as Ext. A2 was created. She sought protection under the provisions of the Protection of Women from Domestic Violence Act (hereinafter referred to as DV Act) and obtained an order against her husband. She and her children continued their residence in the house. The defendant is none other than the brother-in-law of the husband. He caused to issue Ext. A10 notice calling upon the first plaintiff to vacate the premises. The first plaintiff received notice on 18.3.2011 and in the midnight of 19.3.2011 the defendants with the help of some hooligans trespassed into the house and attempted to evict her forcibly. She was able to resist the move. She apprehended further trouble from the defendant and O.S. 467 of 2011 was filed. Along with the suit she moved I.A. 2491 of 2011 and obtained an interim injunction against the defendant. I.A. 2658 of 2011 was filed by her pointing out that even after the communication of the interim order to the defendant, he forcibly entered into the house and occupied a good portion of the house confining the first defendant and her children to one room in the house. She therefore filed I.A. 2658 of 2011 for a mandatory injunction. Subsequently she also filed I.A. 4161 of 2011 to prosecute the respondent for the violation of he order of the court.

All the petitions were resisted by the respondent, who is the petitioner in these original petitions. He pointed out that there was no bona fides in any of the claims made by he plaintiffs in O.S. 467 of 2011 and it was a clandestine arrangement resorted to by the plaintiffs and the husband of the first plaintiff to deny the respondent his right to occupy the house which was sold to him as per Ext. A2. According to him, after Ext. A2 sale deed on request by the husband of the first plaintiff in O.S. 467 of 2011 the family was allowed to reside in the house for two months. When they did not vacate the premises after two months, notice was issued to both the vendor of Ext. A2 and also to the first plaintiff in the suit. Soon after getting the notice, the husband of the first plaintiff handed over possession of the property to the defendant/respondent who started his occupation of the house on 19.3.2011. However, by a high handed action resorted to by the first plaintiff with the aid of some antisocial elements she forced herself into the house and occupied a room and thereafter filed O.S. 467 of 2011. That necessitated the respondent to file O.S. 504 of 2011 seeking recovery of possession of the building.

The records indicate that in O.S. 504 of 2011 the respondent herein who was the plaintiff in the said suit was able to obtain an interim injunction against the first plaintiff in O.S. 467 of 2011 against commission of waste in the property.

It appears that all these petitions were heard together by the trial court. For the purpose of the I.As. Exts. A1 to A12 were marked from the side of the plaintiffs in O.S. 467 of 2011 and Exts. B1 to B7 were marked from the side of the respondents. On evaluation of the materials before it, both the courts below came to the conclusion that the story put forward by the respondent in O.S. 467 of 2011 is highly improbable and on preponderance of probabilities held in favour of the plaintiffs in O.S. 467 of 2011. Accordingly, mandatory injunction was issued against the respondent directing him to vacate the premises.

Shri. G.S. Reghunath, learned counsel appearing for the petitioner in these two petitions very vehemently contended that both the courts below have not understood the case in the proper perspective and have misconstrued the facts and not applied the law as it stands. After the execution of Ext. A2 document, the plaintiffs in O.S. 467 of 2011 had no right to occupy the premises and there is no case for the plaintiffs that the property which was assigned under Ext. A2 stood in the joint names of the husband of the first plaintiff and the first plaintiff. The property exclusively belonged to the husband of the first plaintiff and he was competent to assign the same. The occupation of the family after the execution of Ext. A2 was of permissive nature and that was terminated by the issuance of Ext. A10 notice. After handing over possession as per Ext. A2 sale deed and after the issuance of Ext. A10 notice terminating the permissive occupation, the plaintiffs have no manner of right to occupy any portion of the building or the property covered by Ext. A2.

Shri. G.S. Reghunath contended that even though it is alleged that the sale deed namely, Ext. A2 is a collusive affair between the husband of the first plaintiff and the defendant, it is significant to notice that the husband of the first plaintiff is not made a party to the suit. That speaks volumes about the bona fides of the suit. It is clear that the plaintiffs with the aid of the husband of the first plaintiff were trying to defeat the rights obtained by the defendant in the suit under Ext. A2 document by resorting to dubious methods. The order under the DV Act was obtained long after the execution of the sale deed namely Ext. A2 and therefore the said order cannot have any impact on the sale in favour of the defendant.

Learned counsel went on to point out that mandatory injunction was issued on the basis that there has been violation of the interim order of injunction issued by the court against the defendant/respondent. However, there is no finding that there was willful disobedience or violation of the interim order passed by the court against the respondent and in the absence of any such finding, the mandatory injunction could not have been granted.

Relying on the decisions reported in Premji Ratansey Shah and Others Vs. Union of India (UOI) and Others, and Tamil Nadu Housing Board Vs. A. Viswam (Dead) by Lrs., , learned counsel contended that no suit for injunction by a trespasser against the true owner will lie. It was further contended that the relief of interim mandatory injunction can be given only under exceptional circumstances and there is no such circumstance in the case on hand. In order to retain possession as claimed by the plaintiffs, there should be a semblance of right to possess the property and the trespasser who had no right whatsoever cannot claim right to remain in possession in derogation of the right of the true owner. These vital aspects have been omitted to be noticed by the court below and that has resulted in a wrong order being passed. Learned counsel went on to point out that the orders are clearly unsustainable in law.

Shri G.P. Shinod, learned counsel appearing for the respondents in these original petitions cautioned this Court that it is exercising a supervisory jurisdiction under Article 227 of the Constitution of India and unless it is shown that there is an error in the exercise of jurisdiction by the courts below, this Court may not be justified in interfering with the concurrent findings of facts by the courts below. It is not as if that the courts below have not appreciated the materials on record to arrive at the respective conclusions. The courts below found that the contention that subsequent to Ext. A2 sale deed, the vendor under Ext. A2 and the plaintiffs were in permissive occupation is belied by Ext. A10 notice. Both the courts below found that even if there was a sale deed as per Ext. A2, possession does not appear to have been passed on to the vendee. Learned counsel also pointed out that the first plaintiff had obtained an order under the DV Act against her husband from committing domestic violence and she was entitled to reside in the matrimonial house as a matter of right. The story put forward by the respondent/defendant in the suit that on 19.3.2011 the first plaintiff along with her henchmen trespassed into the house and forcibly occupied a portion of the house in the occupation of the respondents in the I.As. is belied by Ext. B1 FIR.

Even going by the case put forward by the defendant in the suit, as on the date of Ext. A2 sale deed, possession had not been actually given to the vendee. The limited prayer in the suit was only to the effect that the plaintiffs in O.S. 467 of 2011 may not be forcibly evicted. There is no impediment for the defendant to have the petitioners, that is the plaintiffs in O.S. 467 of 2011, evicted through due process of law. Both the courts below have found that the plaintiffs are in possession even after the sale deed and that is essentially a finding of fact. It is contended on behalf of the respondents in these Original Petitions that the petitioner has no case that the interim order passed by the court in O.S. 467 of 2011 was not communicated to him. The contention that unless it is found that there is a violation of the interim order of injunction passed by the court below, mandatory injunction could not have been granted is baseless. The interim mandatory injunction is given when it is shown that the state of affairs has been altered resulting in detriment to the other person concerned. Accordingly, it is contended that no grounds are made out to interfere with the order.

It must be said that there is much to be said on either side. Even though in paragraph 7 of the trial court order, it is mentioned that the I.A. filed by the plaintiffs in O.S. 504 of 2011 is being disposed of by the impugned order, no finding seems to have been arrived at in respect of that I.A. and no order seems to have been passed on that I.A.

The question is whether the plaintiffs in O.S. 467 of 2011 have been able to establish a prima facie case entitling them to continue in the building in the property. It is not in dispute that the property assigned to the defendant in the suit belonged to the husband of the first plaintiff. A look at Ext. A2 would clearly show that it is a pucca sale deed and it also shows that possession has been handed over to the vendee.

But it is admitted by the petitioner herein that even after the sale deed was executed in his favour, the family of the vendor continued to be in possession of the house. Though he would characterize it as a permissive occupation, the case of the petitioner is that subsequently, after issuing notice asking the first plaintiff in O.S. 467 of 2011 and her husband to vacate the premises, her husband approached the petitioner on 18.3.2011 and handed over the key to him and soon thereafter he began to occupy the premises. The further case of the petitioner is that by a high handed action, the first plaintiff in O.S. 467 of 2011 forcibly occupied a portion of the house and laid the suit.

Both the courts below have tested the veracity of the above statement and found it to be unbelievable in the light of the evidence in the case. The courts below were right in their conclusion that if as a matter of fact the occupation of the plaintiffs in O.S. 467 of 2011 in subsequent to the execution of Ext. A2 was permissive, that would have found a place in Ext. A10 document.

The first plaintiff in O.S. 467 of 2011 has a case that after the relationship between the first plaintiff and her husband became strained and bitter, her husband began to device methods to oust her from the house and in that process he had executed Ext. A2 sale deed. They would also bank upon what according to them is the inadequacy of consideration mentioned in Ext. A2 and would say that the property would have fetched much higher price than what is stated in Ext. A2.

The learned counsel for the respondents in these petitions drew the attention of this Court to Ext. A2 and pointed out that a reading of the same would show that in fact no consideration has passed between the parties.

The specific case of the petitioner is that after Ext. A2 sale deed, on request made by the husband of the first plaintiff in O.S. 467 of 2011 the family was temporarily allowed to reside in the premises for a period of two months. The further case is that after the expiry of two months when they did not vacate the premises, Ext. A10 notice was issued.

If as a matter of fact what is claimed by the plaintiffs is true, one would have expected the petitioner herein to make mention of the nature of transaction under which the plaintiffs were occupying the premises even after Ext. A2 in Ext. A10. A reading of Ext. A10 would show that the case of permissive occupation now put forward by the defendant is conspicuously absent in Ext. A10 and Ext. A10 proceeds on the basis that even after execution of the sale deed, namely, Ext. A2, possession had not been handed over. This crucial aspect weighed considerably with the courts below to doubt the version of permissive occupation.

Learned counsel for the petitioner pointed out that there is an averment in the petition filed by the plaintiffs in the suit to the effect that when on earlier occasion the defendant tried to interfere with the possession of the plaintiffs, they filed a petition before the police station concerned. Learned counsel went on to contend that no copy of the complaint is produced and it shows that it is only a bogus complaint. If as a matter of fact what the plaintiffs say are true, there would have been documents to indicate the same.

One fails to understand as to why the plaintiffs in O.S. 467 of 2011 did not make the husband of the first plaintiff a party to the suit. The definite allegation is that Ext. A2 sale deed was a collusive affair between the husband of the first plaintiff and his brother-in-law. Be that as it may, even though the conduct of the plaintiffs in O.S. 467 of 2011 is suspicious, in the light of the materials available, it cannot be said that the finding of the court below is perverse.

One significant aspect cannot be lost sight of. The definite stand taken by the defendant is that after surrendering possession on 18.3.2011, in the midnight of 19.3.2011 the first plaintiff along with her stooges trespassed into his property and occupied a portion of the house. If that be true, one would have expected that the petitioner who is the defendant in the suit would have immediately laid a complaint before the police. There is nothing to show that there was any such incident as alleged on 19.3.2011. However, it is interesting to note that subsequently a complaint was laid as Ext. B1 by the defendant who is the petitioner herein which resulted in registration of Crime No. 124 of 2011. There the version of occupation by the plaintiffs is entirely different. There is no whisper of any trespass on 19.3.2011 by the first plaintiff and her agents. But while giving first information statement which resulted in the registration of Crime No. 124 of 2011 against the plaintiffs and others, the stand taken by the petitioner is that he had returned to his native place on 20.4.2011 and thereafter had occupied the house, and the alleged trespass by the first plaintiff and others is said to be on 30.4.2011.

The courts below found that there was contradiction and grave inconsistencies regarding the occupation of the plaintiffs of the house and also regarding the alleged act of trespass said to have been committed by the plaintiffs and others in O.S. 467 of 2011.

It is no doubt true that in the decisions relied on by the learned counsel for the petitioners it is said that a trespasser cannot maintain a suit for injunction against the true owner. But in those cases there was no semblance of the right established by the trespasser against the true owner and in that context it was held that a suit will not lie.

The proposition relied on by the petitioner could have applied to the facts of this case if it could have been held that on the date of Ext. A2 itself possession was handed over. However, the facts show that the house was not vacated, but the plaintiffs continued their residence in the house. It has already been noticed that the permissive occupation pleaded by the plaintiffs is not established. So also the alleged trespass on 19.3.2011.

One contention raised by the petitioner needs to be noticed. The petitioner has a case that the statement recorded by the police in Crime No. 124 of 2011 based on which crime was registered is not a true version of what in fact the petitioner had told the police. In support of this contention, it is pointed out that he had immediately laid O.S. 504 of 2011 for recovery of possession.

The mere filing of a suit with different pleading cannot led to the inference that the statement recorded by the police is false. If the petitioner has a case that the true version of his statement had not been recorded, he could have complained to the superior officer or to the court where FIR was lodged. Instead he did nothing in that regard.

Section 26 of the DV Act mentions that any relief which could have been granted by the JFCM under the provisions of the Act could also be granted by civil court in a proceedings pending before it which relates with domestic violence. So it could not be said that the right of the plaintiffs to possess and reside in the property cannot be gone into in these proceedings. Whatever that be, both the courts below prima facie found that the plaintiffs have been in possession and the defendant in the suit who is the petitioner herein had violated the order of injunction and tried to forcibly occupy the house.

One contention raised by the learned counsel for the petitioner needs to be mentioned herein. Even though the order of the trial court mentions that I.A. filed by the plaintiffs in O.S. 504 of 2011 was also being considered and disposed of, no order seems to have been passed on that petition.

It is pointed out before this Court that an I.A. for mandatory injunction had been filed in O.S. 504 of 2011 and that has not received consideration at the hands of the trial court. That seems to have made to have the plaintiffs in O.S. 467 of 2011 evicted from the premises.

Probably in the light of the order in the I.As in O.S. 467 of 2011, the trial court felt that no order needs to be passed in the I.A. filed by the respondents. Having granted a mandatory injunction in favour of the plaintiffs in O.S. 467 of 2011 whereby the defendant in the suit who is the petitioner herein had been directed to vacate the house, if the trial court felt that the petition for mandatory injunction filed in O.S. 504 of 2011 need not be considered now, the court could not be found fault with.

The question as to what exactly is the right by which the plaintiffs continue to be in possession of the property even after Ext. A2 sale deed and such other matters are to be decided at the time of trial. It is too early to say either way. However, in the light of the provisions of the DV Act, it cannot readily be said that once the sale is effected of the house, the wife has no manner of right over the building. As to what are the rights that survive in favour of the wife is a different question.

For the above reasons, this Court finds no grounds to interfere with the finding of the court below. These Original Petitions are without merits and they are accordingly dismissed. However, there will be a direction to the trial court to take up the suits as soon as they are ripe for trial and dispose them of in accordance with law untrammelled by any of the observations made by the courts below while disposing of the I.As in O.S. 467 of 2011 or by this Court in this proceedings. There will be no order as to costs.