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2025 DAILYLAW 828 (CHH)

Rajshree Naidu, D/o. Bramhraj Naidu v. Ajay Kumar Reddy, S/o. Parmanand Reddy

2025-11-27

Narendra Kumar Vyas

body2025
Judgment : Narendra Kumar Vyas, J. 1. This is defendants’ first appeal filed under Section 96 of the C.P.C. challenging the judgment and decree dated 15.02.2018 passed by the learned Additional District Judge Durg (C.G.) in Civil Suit No. 30-A/2014, by which learned trial Court has partly allowed the suit filed by the plaintiff directing the defendants to vacate possession of Quarter No. 1A, Road 36, Sector-8, Bhilai within two months from the date of judgment and also restrained the defendants from interfering with the possession of the plaintiff. 2. The parties are referred to as described in the civil suit before the learned trial Court. 3. Brief facts as mentioned in the plaint are that plaintiff has filed a civil suit before the learned trial Court mainly contending that; (a) Marriage of defendant No.1 was solemnized with the plaintiff as per Hindu rites and defendants No. 2 and 3 were born out of the said wedlock. The marriage between the plaintiff and the defendant No.1 was broken in pursuance of decree of divorce granted by the Family Court Durg on 15 th April 2010. It is also case of the plaintiff, that the plaintiff is employed at Bhilai Steel Plant and he was granted lease of the Quarter No. 1A, Road 36, Sector-8, Bhilai (herein after referred to as suit house), but the lease could not be registered on account of administrative reason, though the plaintiff has paid Rs. 3,58,398/- towards lease amount, as such no one has right to use the house except the plaintiff. (b) It is also contended that the defendant No.1 has deserted her matrimonial house and was living in her parents in their house when the plaintiff filed an application under Section 13(1) Hindu Marriage Act before Family Court Durg on 30.10.2006 on the ground of cruelty. During pendecy of the case before the Family Court, defendant No.1 broke the lock of the door on 14.11.2006 in absence of the plaintiff and took illegal possession of the suit house. Subsequently, the plaintiff filed a complaint against her in Police Station Kotwali, Sector -6, Bhilai Nagar, District Durg, on the basis of which Police registered FIR and found the offence being non-cognizable, which has compelled the plaintiff to lodge the complaint under Section 406 IPC is pending before the Court of Judicial Magistrate First Class Durg. Subsequently, the plaintiff filed a complaint against her in Police Station Kotwali, Sector -6, Bhilai Nagar, District Durg, on the basis of which Police registered FIR and found the offence being non-cognizable, which has compelled the plaintiff to lodge the complaint under Section 406 IPC is pending before the Court of Judicial Magistrate First Class Durg. Thereafter the defendant No.1 filed an application under Section 498-A IPC against the plaintiff wherein the trial Court acquitted the plaintiff from the offence under Section 498-A IPC. On 19.02.2009, the plaintiff filed an application to In-charge House and Lease Department (Town and Administration) Bhilai for taking action against the defendants, as they are using illegally water and electricity which was leased in name of the plaintiff but no action was taken by them. (d) It is further contended that the plaintiff regularly paid EMI of Rs. 3,500 per month to ICICI Bank upto 2022, as such the plaintiff is entitled to get Rs. 35,00/- per month from Defendant No. 1 from May 2014 until pendency of the suit. It is also contended that the plaintiff travelled about 45 kilometers daily from Devendra Nagar Raipur to Bhilai Steel Plant on his motorcycle, which incurs a daily petrol expense of Rs. 110 per day, therefore, the plaintiff should be reimbursed from defendant No.1 for petrol expenses of Rs. 13,824 for the last three years. On this factual matrix, the plaintiff has filed suit for declaration, permanent injunction, possession, damages and for recovery of rent along with payment of water and electricity charges. 4. The defendant No.1 has filed her written statement denying the allegation made in the plaint mainly contending that:- (a) The defendant No. 1 was married wife of plaintiff and subsequently decree of divorce was granted by the Family Court, Durg. It is stated that the plaintiff is an employee of Bhilai Steel Plant and he had purchased the suit house from on 21.02.2002 under lease wherein she was residing with their two children namely Ayush Reddy and Anushka Reddy. It is also stated that defendant No.1 is an Assistant Professor in a Private College and at the time of purchase of the suit house on lease, she paid some amount to the plaintiff, therefore, she is entitled to reside in the said suit house with their children. It is also stated that defendant No.1 is an Assistant Professor in a Private College and at the time of purchase of the suit house on lease, she paid some amount to the plaintiff, therefore, she is entitled to reside in the said suit house with their children. (b) It is denied that the defendant No.1 has deserted the matrimonial house, in fact the plaintiff himself has left the defendants in the suit house with their children and since then she is residing there. Thus, the allegation of breaking the lock and taking illegal possession in absence of the plaintiff is false and fabricated. It is also contended that the plaintiff had filed a complaint against defendants and his parents under Section 304 IPC wherein the defendants and her parents were acquitted by the trial Court. It is also contended that against the acquittal order, the plaintiff has filed an appeal before Sessions Judge Durg which is pending. On 25.10.2008 Family Court Durg has passed maintenance order of Rs. 2,500/- to the defendant No. 2 and 3. Against the maintenance order, the plaintiff has filed an application under Section 127 CrPC wherein he has stated that in the suit house wherein the defendants were residing, electricity and water bills were paid by the plaintiff. Based on this, the Family Court reduced the maintenance amount from Rs. 2500 to Rs. 1700/- per month. The defendant No. 1 never illegally occupied the plaintiff's house. It is also contended that the plaintiff did not lease the suit house from his own earnings though at the time of purchase of the suit house, Defendant No. 1 has invested money in purchase of suit house and would pray for dismissal of the suit. 5. Defendant No. 2, Bhilai Steel Plant has filed a written statement, contending that the plaintiff leased the suit house on 21.02.2002 but has not submitted a map or description and no documentary evidence has been filed to demonstrate the fact of deposting of the lease amount and if the house is occupied by another person, the plaintiff/lessee is responsible for the same and Defendant No. 2 has no jurisdiction to take action in this regard. It is contended that the electricity and water charges of Rs. 550 per month are being deducted as per the rules, as water and electricity are being used by leased building. It is contended that the electricity and water charges of Rs. 550 per month are being deducted as per the rules, as water and electricity are being used by leased building. Therefore, the plaintiff is not entitled to receive the electricity and water bills from Defendant No. 2. It is also contended that since the plaintiff has been allotted a suit house on lease, therefore, it is the duty of the plaintiff to protect the building. Defendant No. 1 has occupied the plaintiff's building illegally and the plaintiff is free to initiate eviction proceedings against him. Defendant No. 2 has no right to demolish the illegal construction and would pray for dismissal of the suit against defendant No.2. 6. Defendant No. 4 has filed a written statement, denying the allegation made in the plaint mainly contending that the suit house has been given on lease to the plaintiff and defendant No.1 jointly by the Bhilai Steel Plant. It has also been contended that defendant No.3 and 4 are not residing illegally in the suit house and in fact they are living as they are legal heirs of the plaintiff. It has also been contended that the plaintiff is legally bound to pay the maintenance to the son and daughter. The plaintiff to avoid this legal obligation has left the house. It has also been contended that water and electricity are fall within the ambit of essential amenities therefore, the plaintiff is legally bound to provide such amenities. It has also been contended that the plaintiff after divorce with defendant No.1 is residing separately with other wife in his own house and would pray for dismissal of the suit. 7. On the pleading of the parties, learned trial Court has framed as many as eleven issues, issue No. 1, 3 and 8 are relevant therefore, they are extracted below:- 8. The plaintiff to substantiate his claim has examined himself as (PW-1), Amit Mishra (PW-2), Laxman Bavane (PW-3), Vinod Sharma (PW-4), Nutan Sahu (PW-5), Ganeshram Nirmalkar (PW-6), Rajendra Kumar (PW-7), Dr. Harendra Shah (PW-8) and exhibited documents from (Ex.P-1) to (Ex.P-71). 9. The defendant No.1 examined herself as DW-1, Ayush Reddy (DW-2) and exhibited from Ex.D-1 and Ex.D-2. 10. The plaintiff to substantiate his claim has examined himself as (PW-1), Amit Mishra (PW-2), Laxman Bavane (PW-3), Vinod Sharma (PW-4), Nutan Sahu (PW-5), Ganeshram Nirmalkar (PW-6), Rajendra Kumar (PW-7), Dr. Harendra Shah (PW-8) and exhibited documents from (Ex.P-1) to (Ex.P-71). 9. The defendant No.1 examined herself as DW-1, Ayush Reddy (DW-2) and exhibited from Ex.D-1 and Ex.D-2. 10. Learned trial Court after appreciating the oral and documentary evidence has partly allowed the suit and decreed the suit directing the defendants to vacat possession of the suit house Quarter No. 1A, Road 36, Sector-8, Bhilai within two months from the date of judgment and also restrained the defendants from interfering with the possession of the plaintiff. Being aggrieved by the judgment and decree passed by the trial court on 15.02.2018, the defendants have preferred First Appeal under Section 96 CPC before this Court. 11. Learned counsel for the appellant would submit that the finding recorded by trial Court is bad-in-law as the objection regarding maintainability of the suit was filed before the trial Court regarding valuation and limitation, as such it should be decided as preliminary issue only, thus the trial court has committed illegality in proceeding the suit on merit as the objection regarding court fee and limitation go to the root cause of the case and should be decided as preliminary issue only. He would further submit that the trial court has completely failed to consider that the case relating to claim of possession even after being divorce of appellant No.1, the application under Domestic Violence Act is maintainable meaning thereby the law permits the legal right of appellants to continue in possession. He would further submit that the trial court below has failed to consider that the appellants No. 2 & 3 are real son and daughter of the Respondent No. 1 and they are having rights to continue in the property of her father, none of the law provides such right to the living father to leave his wife and children on road without having any roof. 12. 12. Learned counsel for the appellants would submit that the trial court has completely failed to consider the right of the appellants over the property of the Respondent No. 1 specially of Appellant No. 2 & 3 who are real son and daughter and having complete legal rights to reside at the residential house of their father although the father is the title holder / lease holder or having any rights regarding the property by self earn or being ancestral. He would further submit that learned trial court completely failed to consider the relevant evidence produced by the appellants regarding the payment of requisite amounts against the residential house of which the lease has been given to Respondent No. 1. Thus, the learned trial Court has completely failed to consider the legal aspect of Specific Relief Performance Act and according to the appellants, the suit was filed by the respondent no. 1, because it is not a case that the appellants are strangers / third person who had occupied / residing in the residential house against which the lease has been given in name of the respondent no. 1 as such the trial court should have dimissed the suit filed by the plaintiff on this court alone. 13. On the other hand, learned counsel for plaintiff/respondent No.1 would submit that the marriage solemnized between the plaintiff and the defendant No.1 has been dissolved and there is no marital bond between them, as such when there is no such marital bond the appellant No.1 cannot retain the house belonging to the respondent No.1, on the count that exclusive right, title and interest has been conferred on plaintiff/ respondent No.1 only. He would further submit that the appellants wanted to earn a fortune for herself as will be clear from perusal of the conditions incorporated in para-8 of the application and if the total valuation of the amount demanded, it would come to around Rs. 60,00,000/-. However, on fair calculation of market value for leasehold purpose if made the amount will be much lesser than the amount demanded. To substantiate his submission, he would refer to the judgment of Madras High Court in the case of T.K. Balasubramanian vs. Rajeswari reported in 2022 Lawsuit (Mad)303 and the judgment of Hon’ble Supreme Court in case of Ranjit Kaur vs. Major Harmohinder Singh and Others reported 2011 (15) SCC 95. 14. To substantiate his submission, he would refer to the judgment of Madras High Court in the case of T.K. Balasubramanian vs. Rajeswari reported in 2022 Lawsuit (Mad)303 and the judgment of Hon’ble Supreme Court in case of Ranjit Kaur vs. Major Harmohinder Singh and Others reported 2011 (15) SCC 95. 14. I have heard learned counsel for the parties and perused record of the Courts below with utmost satisfaction. 15. From the above submissions made by the parties, the point emerged for determination by this Court is as under:- (I) Whether the finding recorded by the trial Court is legal, justified, and does not suffer from perversity or illegality which warrants interference by this Court or not. Discussion and finding. 16. To appreciate the point emerged for determination for this Court, this Court has briefly assessed the evidence brought on record by the plaintiff and defendants. The plaintiff in his examination in chief has reiterated the averments made in the plaint and exhibited Ex.P-1 to Ex.P-69. The witness was cross examined by defendant No.1 wherein he has admitted that the suit was given to him on lease and he was getting salary of Rs. 48,000 to 50,000/- and also admitted that the lease of right to enjoy the property has not been transferred by the Bhilai Steel Plant and also admitted that as per the Transfer of Proeprty Act, the transfer of lease is required registration. He has also admitted that the defendant No.3 and 4 are his son and daughter. He has admitted that in the original suit he has not claimed ejectment against the defendant No. 3 and 4 and same has been claimed by way of amendment on 24.06.2016. He has also stated that defendant No.3 resides at Delhi and defendant No. 4 resides at Vishakhapatnam and whenever, they came to Drug on holiday they reside in suit house. 17. A specific question was put to him in the cross, when the defendant No. 3 and 4 are not residing at the suit house then as to why the suit for ejectment has been filed against them. He has stated that in the garb of children, the defendant No. 1 may not take possession of the house. The witnesses has also admitted that he has four children their name are Ayush, Anuska, Adya and Ashutosh respectively. He has stated that in the garb of children, the defendant No. 1 may not take possession of the house. The witnesses has also admitted that he has four children their name are Ayush, Anuska, Adya and Ashutosh respectively. This witness in paragraph-121 of the cross submission has stated that defendants have no right over the suit property. 18. The defendant No.1 in his examination in chief by way of affidavit has reiterated the stand taken by her in the written statement. In the cross- examination, she has admitted that she cannot live with her husband but she is claiming to live with her children in the suit house. Defendant No.1 has further stated that the children are the legal heirs of plaintiff. 19. The defendant No. 4 Ayush Reddy has examined before the trial Court by way of affidavit wherein he has reiterated the same stand taken by him in the written statement and in the cross-examination he has denied that his mother has not given any money to his father for purchasing the suit house. He has also admitted that though he became major, still he has right over the suit property. 20. From the evidence brought on record, it is not in dispute that the divorce has been taken place between the plaintiff and defendant No.1 and it is also not in dispute that defendant No. 3 and 4 are legal heirs of the plaintiff who was born from the wedlock of the plaintiff and the defendant No.1. The plaintiff to substantiate his case that the divorce has taken place between the plaintiff and defendant No.1 has placed on record, copy of judgment and decree passed by the learned Second Additional Chief Family Court, Durg in Civil Suit No. 31-A/2008 wherein the learned Family Court has decreed the suit of divorce filed by husband Ajay Reddy under Section 13(1) of the Hindu Marriage Act, 1956. The plaintiff has also exhibited copy of judgement and decree of this Court in FA No. 55 of 2010 filed by the wife against the judgment and decree passed by Family Court, Durg. The Hon’ble Division Bench of this Court has dismissed the said appeal vide its judgment dated 26.08.2010. 21. The plaintiff has also exhibited copy of judgement and decree of this Court in FA No. 55 of 2010 filed by the wife against the judgment and decree passed by Family Court, Durg. The Hon’ble Division Bench of this Court has dismissed the said appeal vide its judgment dated 26.08.2010. 21. From perusal of the judgment and decree passed by Hon’ble Division Bench as well as the judgment and decree passed by the trial Court, it is quite vivid that no decree has been passed by the Courts in favour of defendant No.1 to reside in the suit property. The defendant No.1 has also not filed any judgment and decree of Court under Domestic Violence Act or any other law granting any protection to defendant No.1 to live in a suit property. In absence of any such judgment and decree passed by any competent court, the finding recorded by the learned trial Court since the divorce has already been taken place between the plaintiff and defendant No. 1, the defendant No.1/ wife has no right to live in the suit house, is legal, justified and in accordance with the judgment passed by the Hon’ble Supreme Court in the case of Ranjit Kaur (supra) wherein the Hon’ble Supreme Court has held in paragraph 9 and 10 which are as under:- 9. It is not in dispute that the decree of divorce passed by Additional District Judge, Ropar has become final. It is also not in dispute that the petition filed by the appellant under Section 125 of the Code of Criminal Procedure for grant of maintenance was dismissed by the concerned Court and in the decree of divorce, no provision was made for maintenance of the appellant including the right of residence in the suit property. Therefore, it is not possible to find any fault with the order passed by the lower appellate Court, whereby injunction granted by the trial Court against alienation of the suit property was vacated and there is no warrant for this Court's interference with the impugned order in so far as it confirms this part of the order passed by the lower appellate Court. 10. However, we find merit in the arguments of learned senior counsel for the appellant that the High Court was not justified in vacating the restraint order passed by the trial Court against the dispossession of his client. 10. However, we find merit in the arguments of learned senior counsel for the appellant that the High Court was not justified in vacating the restraint order passed by the trial Court against the dispossession of his client. Learned counsel is right in his submission that even though in the decree of divorce, the appellant has not been given a right of residence and her occupation of the suit property can be treated as unauthorized, respondent No. 1 cannot evict her except after following the procedure established by law. The material placed on record shows that the appellant had entered into the property as the wife of respondent No. 1. Therefore, even though, after passing of the decree of the divorce she may not have a legal right to continue to remain in possession of the suit property, respondent No. 1 cannot be given liberty to forcibly evict her. 22. Section 2(f) Protection of Women from Domestic Violence Act, 2005 defines domestic relationship as under:- Section 2(f) “domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family; 23. From perusal of Section 2(f) of the Act, it is quite vivid that “domestic relationship between two persons who live, or have at any point of time lived, together in a shared household when they are related by consanguinity, marriage, or a relationship in the nature of marriage. Once the marriage stands dissolved by a valid decree of divorce, the domestic relationship comes to an end. Consequently, the substratum upon which the right of residence is founded no longer survives, unless a contrary statutory right is shown to persist. In the present case, no such materil placed on record by the defendant No.1 to continue in the suit propety which has been leased out to the plaintiff by the defendant No.2. Thus, the finding recorded by the learned trial Court so far as defendant No.1 is concerned directing ejectment and handing over the possession to the plaintiff neither suffers from perversity or illegality warranting interference by this Court. Thus, the finding recorded by the learned trial Court so far as defendant No.1 is concerned directing ejectment and handing over the possession to the plaintiff neither suffers from perversity or illegality warranting interference by this Court. Accordingly, the point determined by this Court is partly answered in favour of the plaintiff and partly in favour of defendant No. 3 and 4. 24. So far as passing of ejectment decree against defendant No. 3 and 4 who are the son and daughter of the plaintiff which is not disputed by the plaintiff himself the decree suffers from perversity and illegality as they are the legal heirs of category class-1 as defined in Section 8 of the Hindu Succession Act and they are class-1 legal heirs of the plaintiff, as such they are entitled to get share in the suit house and the learned trial Court has not considered the evidence adduced by the plaintiff himself wherein he has stated that the defendant No.3 and 4 has no right over the suit house. Even the trial Court has not taken into consideration the evidence of defendant No.4 who in unqual terms as deposed that being legal heirs of plaintiff they are entitled to get share in the suit house. It is well settled legal position of law that children's rights in their father's property are not affected upon divorce unless contingencies contrary to the right is available on record which is not the situation in the present case. Thus, the finding recorded by the trial Court so far as ejectment of defendant No. 3 and 4 is concerned is perverse and contrary to the evidence on record. Accordingly, the First Appeal is partly allowed by affirming the judgment and decree of ejectment passed against defendant No. 1 and reversed against the defendant No.3 and 4 who are the son and daughter of the plaintiff. 25. Interim order passed on 04.07.2019 is vacated to the extent of defendant No.1 and made absolute so far as defendant No. 3 and 4 are concerned. 26. A decree be drawn up accordingly.