[2025:RJ-JP:40760] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Second Appeal No. 437/2025 1. Dr. Vinita Choudhary W/o Satish Bijaraniya, Aged About 45 Years, R/o A-158, Garud Marg, Hanuman Nagar, Jaipur. 2. Aaditya Choudhary S/o Satish Bijaraniya, R/o A-158, Garud Marg, Hanuman Nagar, Jaipur. ----Appellants/Defendants No.01 and 02 Versus 1. Danmal Choudhary S/o Late Shri Ganesh Mal Alias Ganesh Ram, R/o A-158, Garud Marg, Hanuman Nagar, Jaipur. Presently Resident Of Rajeev Gandhi Colony, Near Railway Station, Sujangarh, District Churu. ----Respondent/Plaintiff 2. Satish Bijaraniya S/o Shri Danmal Choudhary, R/o A-158, Garud Marg, Hanuman Nagar, Jaipur And Plot Number 36, RICCO Residential Housing Colony, Arya College Ke Pass, Kukas, Delhi Road, Jaipur Rajasthan. ----Respondent/Defendant No.3 For Appellant(s) : Ms. Pulkit for Mr. Sohan Lal Sharma For Respondent(s) : Mr. N.K. Malook, Senior Advocate, assisted by Mr. Ajay Singh Rajawat HON'BLE MR. JUSTICE SUDESH BANSAL Judgment 07/10/2025 1. In a Civil Suit for mandatory and permanent injunction bearing No.1702/2018 titled as ‘Danmal Jaat Versus Dr. Vinita Choudhary’ filed by respondent No.1-plaintiff, following decree has been passed against daughter-in-law, grand-son and married son of respondent No.1 (defendant Nos.1, 2, 3 respectively in the suit), vide judgment dated 29.05.2024 by the Additional Civil [2025:RJ-JP:40760] (2 of 10) [CSA-437/2025] Judge & Metropolitan Magistrate (North), Jaipur Metro-II. The relevant portion of the said decree reads as under:- “ Okknh nkuey tkV dh vksj ls izfroknhx.k MkW0 fofurk pkS/kjh o vU; ds fo:) izLrqr fd;k x;k nkok ckcr vkKkRed ,oa LFkkbZ fu’ks/kkKk fuEukuqlkj Lohdkj fd;k tkdj bl izdkj ls fMØh fd;k tkrk gS fd& 1- okn i= dh en la[;k 1 esa of.kZr lEifRr ftls layXu uD”ks esa ihys jax ls n'kkZ;k x;k gS] dks oknh izfroknhx.k ls [kkyh djokdj dCtk izkIr djus dk vf/kdkjh gSA izfroknhx.k dks ;g vkns'k fn;k tkrk gS fd og fMØh dh fnukad ls nks ekg ds Hkhrj fooknxzLr ifjlj [kkyh dj dCtk oknh dks lqiqnZ djsA 2- izfroknhx.k dks bl vk'k; dh LFkkbZ fu"ks/kkKk ls ikcan fd;k tkrk gS fd izfroknhx.k okni= ds lkFk layXu uD'ks esa xqykch jax ls nf'kZr Hkwfe ij rksMQksM] fuekZ.k] vUrfjr rFkk ikuh&fctyh dk dusD'ku izkIr djus ls fu’ks) jgsA “ 2. Thereagainst defendant Nos.1 & 2 filed a First Appeal. The First Appeal was heard on merits and has been dismissed vide judgment dated 20.08.2025, passed by the Court of Additional District Judge No.7, Jaipur Metro-II, affirming the judgment and decree dated 29.05.2024. Hence, thereagainst, instant Civil Second Appeal under Section 100 of Code of Civil Procedure (hereinafter referred to as ‘the CPC’), has been filed by and on behalf of defendant Nos.1 & 2. 3. Admittedly, property in question i.e. Plot No.A-158, Garud Marg, Hanuman Nagar, Jaipur, is of absolute ownership of respondent No.1-plaintiff. The said plot was allotted to him by the Cooperative Society vide allotment letter dated 10.05.1987, thereafter, he got regularized the plot from Jaipur Development Authority (hereinafter referred to as ‘the JDA’) by depositing regularization charges on 15.03.1995 and patta in his favour came to be issued by the JDA on 11.07.2012. Thus, there is no dispute about the fact that the property has been in sole ownership and [2025:RJ-JP:40760] (3 of 10) [CSA-437/2025] possession of respondent No.1-plaintiff, wherein he was residing with his wife and son. 4. Admittedly, appellant No.1 got married with son of respondent No.1, namely, Satish Bijaraniya (respondent No.2 herein), on 05.12.2000 and started to live with her husband at first floor of the house of respondent No.1-plaintiff, obviously with the permission of respondent No.1-plaintiff. Later on, matrimonial discord accrued between appellant No.1 and her husband, to which her husband filed a Divorce Petition wherein an ex-parte divorce decree was passed on 13.04.2004, but later on, same came to be set aside and matrimonial dispute is pending between husband and wife. 5. It appears from the record that a Criminal Case on behest of the appellant for offences under Sections 498-A and 406 of IPC was lodged in the month of May, 2005, but later on, such Criminal Case was resolved by way of compromise arrived at between the parties. 6. In the year 2011, appellant No.1 made a complaint under the Protection of Women from Domestic Violence Act, 2005 and claimed her right of residence in the house of her father-in-law i.e. respondent No.1 and sought protection. In this complaint, vide order dated 05.07.2011, appellant’s right to continue living in the portion of house of respondent No.1 was protected and appeal thereagainst filed by respondent No.1 too was dismissed, but on filing S.B. Criminal Revision Petition No.483/2012 by respondent No.1, High Court did not acknowledge the right of appellant No.1, to live as a matter of right, in the house of respondent No.1 [2025:RJ-JP:40760] (4 of 10) [CSA-437/2025] against his permission and wish, since, the house in question was personally owned property of respondent No.1 and not property of HUF. Accordingly, vide order dated 07.09.2012, High Court set aside the order dated 05.07.2011 so also the Appellate Court order dated 16.09.2011, but granted liberty to appellant No.1 (plaintiff herein), to make a prayer before the learned Magistrate for providing her alternative accommodation or monthly rent from her husband. The order dated 07.09.2012 passed by the High Court attained finality. 7. It appears that thereafter, respondent No.1 moved an application before the learned Magistrate for issuing direction to vacate and handover the possession of his house by his son and daughter-in-law, but that application was dismissed whereagainst he preferred S.B. Criminal Revision Petition No.6/2016. In the Revision Petition, High Court granted liberty to respondent No.1 to avail civil and criminal remedies as available in the law. 8. Thereafter, respondent No.1-plaintiff served a legal notice dated 29.08.2018 demanding vacant possession of portion of his house and then filed the present Civil Suit for mandatory and permanent injunction. 9. The Civil Suit was opposed by defendant Nos.1 and 2 by filing their written statements, though no written statement was filed by defendant No.3. A plea was taken in written statement that being daughter-in-law of respondent No.1, she has a right to live in his house, even against wish of respondent No.1. 10. Learned Trial Court, after framing of issues and recording evidence of both the parties, has decreed the Civil Suit vide [2025:RJ-JP:40760] (5 of 10) [CSA-437/2025] judgment dated 29.05.2024 whereagainst First Appeal filed by the appellants has been dismissed on merits vide judgment dated 20.08.2025. 11. It is not in dispute that the house in question, wherein appellants are staying in a portion at first floor, is not a property of HUF or ancestral property, but it is property of absolute ownership of respondent No.1. The right to claim residence therein as a share-hold house qua respondent No.1 has already been rejected and decided against the appellants by the High Court in the order dated 07.09.2012 passed in S.B. Criminal Revision Petition No.483/2012 and that order has attained finality. 12. Appellants have not claimed any additional right in the present civil suit. Both the Courts below have concurrently held that appellants have no vested legal right to retain possession over the portion of house of respondent No.1, against his permission moreso when the permission has been cancelled/revoked by respondent No.1. 13. It is noteworthy that appellant was given liberty to make a prayer against her husband, to provide alternative accommodation or monthly rent, but it appears that appellant has not availed that remedy against her husband. As far as defending her possession qua respondent No.1-plaintiff in the civil proceedings is concerned, defendant could not establish her independent and legal right against respondent No.1-plaintiff. 14. In the celebrated judgment of Hon’ble Supreme Court delivered in case of Satish Chander Ahuja Versus Sneha Ahuja: (2021) 1 SCC 414, while dealing with right of a daughter-in-law [2025:RJ-JP:40760] (6 of 10) [CSA-437/2025] to live in the shared household, Hon’ble Supreme Court held and observed in Para 90 as under:- “90. Before we close our discussion on Section 2(s), we need to observe that the right to residence Under Section 19 is not an indefeasible right of residence in shared household especially when the daughter-in-law is pitted against aged father-in-law and mother-in-law. The senior citizens in the evening of their life are also entitled to live peacefully not haunted by marital discord between their son and daughter-in-law. While granting relief both in application Under Section 12 of Act, 2005 or in any civil proceedings, the Court has to balance the rights of both the parties. The directions issued by High court in paragraph 56 adequately balances the rights of both the parties.” 15. In addition, it is not in dispute that the right of appellant No.1, to claim her residence in the house of respondent No.1, has already been decided by the High Court vide order dated 07.09.2012 passed in S.B. Criminal Revision Petition No.483/2012 arising out of complaint filed by appellant under Section 12 of the Act of 2005. Section 17(2) of the Act of 2005 itself contemplates eviction or exclusion of aggrieved person from a shared household in accordance with the procedure established by the law. Thus, the two Courts below are justified in decreeing Regular Civil Suit, filed by respondent No.1, for obtaining possession from the appellants, which is not hit by the provisions of the Act of 2005 as well. 16. It would not be out of place to refer the judgment of Bombay High Court, delivered in case of Conrad Dias of Bombay Versus Joseph Dias of Bombay reported in AIR 1995 Bombay 210. In that case, father filed a suit for injunction against his estranged son to oust him from the possession of his own property and in respect of entertaining the suit for mandatory injunction, instead [2025:RJ-JP:40760] (7 of 10) [CSA-437/2025] of a suit for possession, the Bombay High Court held and observed in Para 19 as under:- “19. It was argued that the plaintiff should have filed a suit for possession and not for injunction. It is true that normally a person who is not in possession of the property should file a suit for possession. But in the present case the plaintiff nowhere says that he is not in possession of the suit premises. His case is that he and his son are in joint possession of the suit premises. I have already shown that even when he was a boy the appellant-son was residing with the father and continued to stay in the suit premises even after the plaintiff was transferred to Bangalore. It is also in evidence that plaintiff has been visiting Bombay and residing in the suit house every year. Since the relationship between the parties is one of father and son and they are residing together, it is a case of joint possession even though plaintiff has been subsequently transferred to Bangalore. The plaintiff has nowhere admitted that he has been dispossessed or that he has lost possession. Hence in the circumstances since the plaintiff is held to be in joint possession along with the defendant and he has never lost possession, he cannot file a suit for possession. Therefore, the present frame of suit asking for an injunction against the defendant cannot be said to be bad. Since defendant has no legal right to continue to stay in the premises, plaintiff has advisedly asked the relief of injunction which is perfectly and legally permissible. Hence, I find no merit in the contention that the suit is not maintainable.” The ratio decidendi expounded by the Bombay High Court squarely applies to the present suit, filed by respondent No.1 for mandatory and permanent injunction against his son, daughter-in- law and grand son, who are in possession of portion of his house with his permission only and after revocation of the permission, they have no right to retain/continue their possession over the portion of house in question, which indisputably belongs to exclusive ownership of respondent No.1-plaintiff. [2025:RJ-JP:40760] (8 of 10) [CSA-437/2025] 17. This Court further finds that substantial questions of law as suggested and framed by the appellants in the memo of the appeal in Para No.J, are mixed questions of facts and law, which warrant re-appreciation of entire evidence and prayer of appellants is to draw another conclusion than drawn by the two Courts below. Perusal of the impugned judgments, goes to show that the two Courts below have meticulously analyzed the pleadings and evidence of the parties and rightly reached to the conclusion to direct defendants to handover vacant possession of house of respondent No.1 to him. The impugned judgments do not suffer from any vice of perversity or jurisdictional error and do not give rise to any substantial question of law. 18. The scope of the High Court under Section 100 CPC is extremely limited. In this respect, it is suffice to refer a judgment of the Hon’ble Supreme Court in case of S. Subramanian Versus S. Ramasamy & Ors.: (2019) 6 SCC 46 wherein Hon’ble Supreme Court after sailing through catena of previous judgments and dictum of law held and observed as under:- “7.3 As per catena of decisions of this Court, while deciding the second appeal Under Section 100 of the Code of Civil Procedure, the High Court is not required to re-appreciate the entire evidence on record and to come to its own conclusion and the High Court cannot set aside the findings of facts recorded by both the Courts below when the findings recorded by both the Courts below were on appreciation of evidence. That is exactly what is done by the High Court in the present case while deciding the second appeals, which is not permissible under the law. 7.4 Even otherwise, it is required to be noted that as per catena of decisions of this Court and even as provided Under Section 100 of the Code of Civil Procedure, the Second Appeal would be maintainable only on substantial question of law. The Second Appeal does not lie on question [2025:RJ-JP:40760] (9 of 10) [CSA-437/2025] of facts or of law. The existence of 'a substantial question of law' is a sine qua non for the exercise of the jurisdiction Under Section 100 of the Code of Civil Procedure. As observed and held by this Court in the case of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar (1999) 3 SCC 722, in a second appeal Under Section 100 of the Code of Civil Procedure, the High Court cannot substitute its own opinion for that of the First Appellate Court, unless it finds that the conclusions drawn by the lower Court were erroneous being: (i) Contrary to the mandatory provisions of the applicable law; OR (ii) Contrary to the law as pronounced by the Apex Court; OR (iii) Based on in-admissible evidence or no evidence. It is further observed by this Court in the aforesaid decision that if the First Appellate Court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in Second Appeal. It is further observed that the Trial Court could have decided differently is not a question of law justifying interference in Second Appeal. 7.5 When a substantial question of law can be said to have arisen, has been dealt with and considered by this Court in the case of Ishwar Dass Jain v. Sohan Lal (2000) 1 SCC 434. In the aforesaid decision, this Court has specifically observed and held: Under Section 100 Code of Civil Procedure, after the 1976 amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate court without doing so. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate court by placing reliance on inadmissible [2025:RJ-JP:40760] (10 of 10) [CSA-437/2025] evidence which if it was omitted, an opposite conclusion was possible. In either of the above situations, a substantial question of law can arise.” 19. Net outcome of above discussion is that this Civil Second Appeal is devoid of any merit and is hereby dismissed. 20. Since appellant No.1 happens to be daughter-in-law and appellant No.2 is her son, who has been stated to attain age of majority, hence, considering their relationship with respondent No.1 and on equity basis, six months time is granted to the appellants to vacate and handover the vacant and peaceful possession of the portion of house in question to respondent No.1- plaintiff subject to furnishing a written undertaking before the Trial Court to this effect, within a period of one month from the date of issuance of certified copy of this order. 21. Stay application and other pending application(s), if any, stand disposed of. (SUDESH BANSAL),J SUNIL SOLANKI /88