Muhammad Ismayil and Latheefa Beevi v. Saibinisha, Abdul Vahab and Abdul Kalam

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN THURSDAY, THE 3RD DAY OF AUGUST 2017/12TH SRAVANA, 1939 OP (FC).No. 637 of 2016 (R) ---------------------------- (AGAINST ORDER DATED 5/8/2016 IN IA NO.969/2016 IN OP NO.688/2016 OF FAMILY COURT, KOTTARAKKARA) PETITIONER(S): ------------- 1. MUHAMMAD ISMAYIL AGED 84 YEARS, S/O.ALIKUNJU, JALEELA MANZIL, KARUKONE PO, KANNAMKODU, ALAYAMON VILLAGE 2. LATHEEFA BEEVI AGED 77 YEARS, W/O.MUAHMMED ISMAYIL, JALEELA MANZIL, KARUKONE PO, KANNAMKODU, ALAYAMON VILLAGE BY ADVS.SRI.LIJU.V.STEPHEN SMT.INDU SUSAN JACOB RESPONDENT(S): -------------1. SAIBINISHA AGED 38 YEARS, NELPURAKUNNI VEEDU, KANNAMKODU, ALAYAMON VILLAGE, PUNALUR TALUK, FROM NELPURAKUNNIL VEEDU, KARYARA PO, VILAKKUDY VILLAGE, PATHANAPURAM TALUK 2. ABDUL VAHAB AGED 43 YEARS, S/O.MUHAMMAD ISMAYIL, NELPURAKUNNIL VEEDU, KANNAMKODU, ALAYAMON VILLAGE 3. ABDUL KALAM AGED 48 YEARS, K.S. HOUSE, KANNAMKODU, ALAYAMON VILLAGE R1 BY ADV. SRI.G.P.SHINOD R1 BY ADV. SRI.RAM MOHAN.G. R1 BY ADV. SRI.GOVIND PADMANAABHAN R1 BY ADV. SRI.K.SURESH BABU (PUNALUR) R1 BY ADV. SRI.AJIT G.ANJARLEKAR THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 1-082017, THE COURT ON 3/8/2017 DELIVERED THE FOLLOWING: OP (FC).No. 637 of 2016 (R) ---------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ----------------------EXHIBIT P1 A TRUE COPY OF THE ORDER DATED 05.08.2016 IN IA.NO. 969/2016 IN OP.NO. 688/2016 ON THE FILES OF FAMILY COURT, KOTTARAKKARA EXHIBIT P2 A TRUE COPY OF THE ORDER DATED 01.07.2016 IN CMP.NO. 5954/2016 IN MC.NO. 49/2016 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT I, PUNALLOOR RESPONDENT(S)' EXHIBITS NIL ----------------------- Rp //TRUE COPY// PS TO JUDGE ## **A.M. SHAFFIQUE & ANU SIVARAMAN, JJ.** =========================== OP(FC) No. 637 of 2016 ================== Dated this, the 3[rd] day of August, 2017 ## **J U D G M E N T** ## _**Shaffique, J.**_ This Original Petition is filed by respondents 3 and 4 in OP No. 688/2016 pending before the Family Court, Kottarakkara. The said OP was filed by the 1[st] respondent herein seeking for a declaration of title and possession in respect of plaint A and B schedule properties and for injunction to restrain petitioners and respondents 2 and 3 from evicting the 1[st] respondent and her child from plaint C schedule property. The 1[st] respondent also filed IA No.969/2016 for a temporary injunction to restrain the respondents from alienating or encumbering petition A and B schedule properties and from forcibly evicting her and her minor son from the petition C schedule house till the disposal of this OP. 2. The petitioners herein are the father and mother of 2[nd] respondent, who is the husband of the 1[st] respondent. OP(FC) No.637/16 ## -:2:- Respondents 1 and 2 got married on 23/9/2001. They have a child in the said wedlock. The marital relationship got strained and according to the petitioners, she had gone to her parental house with the child. She thereafter filed MC No.49/2016 before the Judicial Magistrate of First Class, Punalur under Section 23 of the Protection of Women from Domestic Violence Act, 2005. The learned Magistrate held that she does not have any right over the alleged shared household. However, the 2[nd] respondent/husband was directed to provide her `5,000/- per month for alternate accommodation. It is contended that in order to overcome the order passed by the learned Magistrate, the above OP was filed claiming right over the C Schedule property, being shared household. Ext.P1 is the impugned order in which the Family Court observed that in so far as the right in respect of the C schedule property is to be decided after considering the evidence, she and her son should not be evicted from the said building till disposal of the Original Petition. 3. Learned counsel for the petitioners submits that in so far as C schedule building is concerned, there is already a finding by the learned Magistrate in terms of Ext.P2 order that it is not a OP(FC) No.637/16 -:3:- shared household and therefore, she is not entitled for any order to permit her to reside in the said house. However, direction had been issued to the 2[nd] respondent herein to provide alternate accommodation to the first respondent and her minor child or else to pay `5,000/- per month. It is therefore contended that she has no right in respect of C schedule building. She of course has taken a contention that the building was constructed with the money provided by her and her brother for which there is no material. According to the petitioners, she has no right in respect of the said building other than contending that she is residing in the said building. It is argued that, when the 1[st] respondent has no semblance of right in respect of C schedule property, she cannot seek for any injunction as sought for. Her allegation that she is in possession of the property is also incorrect since she had trespassed into the said property. The learned counsel argued that she has no legal possession and her residence in the said house is only unlawful. He also placed reliance upon the judgment in _**Mammunhi Alias Mahammad Beery v. Kunhibi**_ (1960 KLT 1343). In the above case, the issue was whether claim for recovery of possession of a building could be granted on the OP(FC) No.637/16 -:4:- ground that the house in the property was constructed by the defendant with his own funds. The Trial Court held that defendant is entitled to compensation alone whereas the appellate court took the view that the defendant's right is only to dismantle the house and take away the materials. While considering the said appeal, the Division Bench observed that what is fixed to the soil belongs to the soil is not a maxim of general jurisprudence as per the judgment of the Privy Council reported in _**Vallabdaas Narinji v. Development Officer, Bandra**_ (AIR 1929 PC 163). The said maxim does not represent the law in India. It was held that the plaintiff will have to pay the value of the building to the defendant. 4. Yet another judgment relied upon is _**Premji Ratansey Shah and Others v. Union of India**_ [(1994) 5 SCC 547] wherein it is held that issuance of an order of injunction is absolutely a discretionary and equitable relief. Injunction can be given only to protect possession of the owner or person in lawful possession. Unless the plaintiff has a personal interest in the matter or a right to claim to be in possession, the same cannot be protected by injunction. Injunction would not be issued against the true owner. OP(FC) No.637/16 -:5:- Further, it was held that “ _Even assuming that they had any possession, their possession is wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser or a person who gained unlawful possession, as against the owner_ ”. It is therefore contended that when a competent court having jurisdiction has already decided that she has no right to claim C schedule building as a shared house, the Court below ought to have considered the said finding and rejected the application for injunction. It is contended that the property absolutely belongs to the petitioners herein. 5. On the other hand, learned counsel appearing for the 1[st] respondent supported the view taken by the Family Court. Learned counsel submits that since she is residing in the building, she shall not be evicted other than by due process of law. 6. Perusal of Ext.P2 order by the Judicial Magistrate of First Class would show that the 1[st] respondent contended that she along with minor child was ousted from the shared household on 8/4/2016. In the objection filed, the respondents therein averred that the property belongs to the petitioners herein and the 1[st] petitioner had constructed the house by using his own funds. He OP(FC) No.637/16 -:6:- had permitted the couple and the minor child to reside in the said house and thereafter on account of matrimonial issues, she has gone away from the said building. 7. There is no dispute about the fact that the property belongs to the petitioners. The contention urged by the 1[st] respondent before the learned Magistrate was that the property was orally gifted to the 2[nd] respondent by his father. This contention was found to be false by the learned Magistrate as there was no such case stated in the pleading. Therefore, it was found that it was not her shared house. Further, it was observed that “ _it is an undisputed fact that petitioner and minor child are not residing along with the first respondent (2[nd] respondent herein) and are residing at the parental house of the petitioner (1[st] respondent herein)_ .” Thereafter, having found that the husband is bound to give accommodation to wife and minor child, he was directed to pay `5,000/- as rent or to provide an alternate accommodation. 8. It is therefore rather clear that 1[st] respondent has no right in respect of C schedule property as a shared household. In the present lis, she claims that she has constructed the building OP(FC) No.637/16 -:7:- with her funds and that of her brother. No material is produced to prove the said fact, even for a _prima facie_ consideration, and no declaration in that regard has been sought for. The property admittedly belongs to the petitioners herein. Even if, she has a case that the building belongs to her, as held in _**Mammunhi**_ (supra), her right is only to claim the value of structures. 9. It is evident that at the time when Ext.P2 order was passed, she was not even residing in that property. Hence, she was not entitled to seek an injunction as sought for. 10. In order to grant an interim injunction in respect of a property, as held by the Apex Court, person seeking injunction should have some right or interest in the property. Here, her original claim was that it was her shared house along with her husband which is found against in a judicial proceeding. This fact had been completely ignored by the Family Court while granting interim injunction. Further, though she contends that the building is constructed with her funds, there is no _prima facie_ material, and, even otherwise, she is not seeking any right over the building. The learned Magistrate had already directed payment of `5,000/- per month or to provide alternate accommodation. Such OP(FC) No.637/16 -:8:- a direction had been issued against the 2[nd] respondent. Learned counsel for the petitioners herein submits that if she leaves the C schedule property, they are willing to provide `5,000/- to the 1[st] respondent. 11. Taking into consideration the over all facts and circumstances, we are of the view that the Family Court was not justified in issuing an order of injunction. OP(FC) is therefore allowed as under:- - (i) Ext.P1, the impugned order, is set aside. - (ii) IA No.969/2016 in OP No.688/2016 is dismissed. Sd/- ## **A.M. SHAFFIQUE, JUDGE** Sd/- **ANU SIVARAMAN, JUDGE** Rp //True Copy// P.S to Judge