Bangalore District Court
Col. Kulbhushan Kumar (Retd) vs Mrs.Beena Bhardwaj W/O Anil on 30 November, 2016
1 O.S.No:3370/2012
IN THE COURT OF THE III ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (C.C.H.No.25).
Dated: This the 30th day of November 2016
Present: Sri.Ron Vasudev, B.Com. LL.B, (Spl),
III Addl.City Civil & Sessions Judge,
Bengaluru.
O.S.No:3370/2012
Plaintiffs 1. Col. Kulbhushan Kumar (Retd)
S/o Late. Surender Nath
Bhardwaj, Aged about 71 years,
2. Dr.(Mrs). Ranjini Kumar W/o
Col. Kulbhushan Kumar (Retd),
Aged about 73 years,
Both are residing at No.1, 4th A Cross,
Kalyananagar 2nd Block, HRBR Layout,
Bangalore-560 043.
(By Sri.AM, Advocate)
V/S
Defendants 1. Mrs.Beena Bhardwaj W/o Anil
Kumar Bhardwaj, Aged about 44
years, R/at No:1, 4th A Cross,
Kalyananagar 2nd Block, HRBR
Layout, Bangalore-560 043.
2. Anil Kumar Bhardwaj S/o
Col.Kulbhushan Kumar, Aged about
43 years, R/at C/o Motor Bay
Automotives, Horamavu Village,
Next to SBT Bank, Kalyananagar
Post, Bangalore-560 043.
(D1 by Sri.RB, Advocate)
2 O.S.No:3370/2012
(D2 by Sri.AKM, Advocate)
Date of Institution : 16.5.2012
Nature of Suit : For possession and permanent
injunction
Date of Commencement of : 6.6.2013
evidence
Date of pronouncement of : 30.11.2016
Judgment
Total Duration : Year/s Month/s Day/s
4 6 14
(Ron Vasudev),
III Addl.City Civil & Sessions Judge,
Bengaluru.
JUDGEMENT
This is a suit for possession and for permanent injunction.
2. The plaint schedule consists of a house property bearing site No.1/1, House List No:168/168/3 situating at Clelakere, K.R. Puram Hobli, Bangalore East Taluk now part of Bangalore Mahanagara Palike as No.1/1, 1st cross, Janhavi Layout (Chelakere Village), Ward No:89, Bangalore-560 043 measuring East - West 60 feet and North-South 45 feet and is bounded by;
East - Property belongs to I.A.Sherief West - Road 3 O.S.No:3370/2012 North - House No.32 belonging to George Mathew (formerly site no.1 formed in Sy.No.97/3 of Chelakere Village) South - Property belonging to Smt.Bhagyamma (formerly site no.97/3 of Chelkere Village).
Schedule 'A' property One bed room situating at North-eastern side of the above schedule property measuring 11.4' x 10.3' feet i.e. in all 118 Sq.Ft.
3. In nutshell the contents of the plaint averments are that, the plaintiffs are husband and wife, the defendants no.2 is their son and defendant no.1 is their daughter-in-law. That the plaintiff no.1 joined the Armed Forces in 1964 and due to his unblemished service he retired as Lieut. Col after putting in service of 34 years. He participated in 1965 and 1971 Indo-Pak Wars and he has the credit of capturing 92000 prisoners of war of Pakistan along with his colleagues. Apart from that the plaintiff no.1 has discharged his duties in High soaring deserts of Rajasthan with 51' celcious temperature and also at Himalayas Mountains where the temperature dips to minus 15' to 18' degree. He has also discharged his duty in Assam which is affected by naxalites belonging to ULFA. During his said service the plaintiff no.1 came in contract with the plaintiff nol.2, who had also joined the Indian Army to serve as a doctor and they married in 1968. Out of that wedlock the defendant no.2 is born to them. That out of their hard earned money and 4 O.S.No:3370/2012 in order to have a peaceful retirement life the plaintiffs jointly purchased the suit schedule property as such it is their exclusive property, wherein neither the defendant no.2 nor the defendant no.1 have any kind of right, title or interest in it. The plaintiffs are also having a daughter and she was earlier residing with the plaintiffs, but now she is living separately. After purchasing the schedule property by obtaining license from the competent authority the plaintiffs have built a residential cottage there and they are paying taxes to the corporation regularly. Before shifting to the suit schedule property the plaintiffs were residing at Lazar layout, Frazer Town, Bangalore along with the mother of the plaintiff no.1, who is aged 90 years. In that very street next to the door of the plaintiffs house the defendant no.1 and her family were residing and father of defendant no.1 was an advocate and her sister is also an advocate. Somehow the defendant no.1 fell in love with the defendant no.1, therefore their marriage was solemnized as per Hindu customs in the year 2000. However even after her marriage the defendant no.1 use to spend most of her time in her parents' house and once she use to return to the plaintiffs house she use to taunt the plaintiffs by using foul language and she never use to attend the household works, as a result the plaintiffs were forced to relocate themselves along with the mother of the plaintiff no.1 to the schedule property. In the schedule property the defendant no.1 gave birth to a female child named as "Mithila Kumari" and now that child is 6½ years age. The defendants 1 and 2 were staying in the 5 O.S.No:3370/2012 schedule 'A' property and commonly enjoying the rest of the building. Right from the date of her marriage because of her adamant, unduly dominant and aggressive attitude the defendant no.1 neglected the plaintiffs altogether and having no regard to their status in the society she was all the time non co-operative with them and with her husband (defendant no.2). Even for trivial reasons she use to pick up quarrel not only with the defendant no.2 even with plaintiffs as a result the guests and friends, who were coming to meet the plaintiffs stopped coming to their home. The sole intention of the defendant no.1 was to coerce the plaintiffs to register the schedule property in her name. But because of the fondness, love and affection of their granddaughter Mithila Kumari the plaintiffs tolerated all the ill-deeds of defendants and allowed them to stay in the schedule property though the defendant no.2 was not earning anything and was not contributing financially to the family. It is the plaintiffs who are looking after the expenses of defendant no.1 and also the school, uniform, bus pass and other expenses of their grand daughter. Inspite of these things taking undue advantage of the fact that her sister is an advocate, the defendant no.1 is forcing police officials to register false and frivolous case against these plaintiffs and thereby insulting and humiliating them with oblique motive to grab the entire schedule property. The defendants are bent upon to dispossess the plaintiffs forcibly from the schedule property. Wherefore the plaintiffs pray for judgment and decree to direct the defendants to quit and deliver the vacant possession of the 6 O.S.No:3370/2012 schedule 'A' property, which is an integral part of schedule property and for permanent injunction to restrain the defendants, their relatives, agents, servants or anybody claiming under them from interfering in their peaceful possession and enjoyment of the schedule property excluding their grand daughter Mithila Kumari.
4. The defendant no.1 appeared and filed her written statement as well as counter claim. The summary of the said pleading is as under;
that this defendant is not aware about the services of the plaintiffs and so-called achievements made by them in the Indian Army. With regard to their contention that the suit schedule property is their self-acquired property and it is purchased out of their self-earnings this defendant submits that conveniently the plaintiffs have not disclosed extending of financial help by her father to the extent of Rs.6 lakhs when the said property was purchased. She has stoutly denied that even after the marriage she used to spend most of her time in her parental home and by using foul language use to insult the plaintiffs and was not attending the household works. She has also denied that she ever misbehaved with the plaintiffs or any elders in the family. She submits that the real reason behind shifting from the old residence at Lazar Layout, Farzer town, Bangalore was that the suit property is closely located to Sena Vihar, Vayu Vihar and Jal Vayu Vihar, the three layouts, which came up in that area and where the batchmates and friends of the plaintiff no.1 have settled down. In order to have closer 7 O.S.No:3370/2012 contacts with them plaintiffs shifted from the old residence and not with an intention to avoid contacts with her parents family. She further averred that infact the mother of the plaintiff no.1, who was aged 90 years, was totally reluctant to leave the old house as she was residing there from considerable time along with her husband and she also lost her husband in that old house and was having lot of attachments with the said property. May be for the reason that she was shifted from the old residence against her wish, after occupying the schedule property in that very depression she died. This defendant was taking care of the said grand old lady till her last breath, including the needs of plaintiffs and defendant no.2. It is unfortunate that before delivering Mithila Kumari the defendant no.1 also gave birth to a still born male child and plaintiff no.2 being doctor she did not take care of this defendant during her pregnancy period. The plaintiffs were expecting all menial services from this defendant and they use to expect that she could clean the dog shit and clean the dogs and provide foods to them. Because of the continuous harassment and ill- treatment meted out to her by the plaintiffs, the defendant nao.2 and the daughter of plaintiffs she was forced to file complaint U/Sec.498A, 420 and 294 of IPC in Banasawadi Police Station and in that case after investigation charge sheet was filed against them at C.C.No:50662/2013. Apart from that since the plaintiff no.1 and defendant no.2 tried to drive out this defendant along with her child she also filed a criminal miscellaneous petition at Crl.Mis.No:81/2012 on the file of 8 O.S.No:3370/2012 MMTC-I, Bangalore and it is pending. That in the guise of proceeding against the defendant no.2 the plaintiffs are trying to evict this defendant from the schedule property without due process of law. That all the while she was discharging her duties as dutiful daughter-in-law and wife, but having no concern about her and by making false allegations that she is misusing the influence of her sister, who is an advocate, the plaintiffs have come up with false case. There is no cause of action for the suit and alleged one is false and invented. The reliefs sought by the plaintiffs are not only peculiar in nature even they are not entertainable.
5. In addition to the above contentions and denying rest of the plaint averments as vexatious, the defendant has filed counter claim by contending that as she is residing in the schedule property along with her child from the day they have shifted to that residence and for all practical purposes it is her matrimonial home and she has every right to stay there legally, she further submitted that plaintiff no.1 is owning a form house at Talawadi, Chamarajanagar District and a Tea Estate at Guduloor, Tamil Nadu and most of the time he resides there with plaintiff no.2, she denies that suit property is exclusively enjoyed by the plaintiffs and it belongs to them alone. That the defendant no.2 has developed an illicit relationship with one Pankaja and he took that lady to Talawadi Farm House and stayed with her there and on coming to know the same the plaintiff no.1 ran to that farm house, burnt down all the beddings and items that were used by defendant no.2 and said 9 O.S.No:3370/2012 Pankaja and prohibited them from entering the said farm house thereafter. That the defendant no.2 has totally neglected her as well as her daughter and he is not taking care of them. The plaintiff used to abuse her in front of the guests and insult her. Infact this suit is a collusive suit by the plaintiffs and defendant no.2 in order to isolate her. It is denied that she is using the schedule 'A' property and residing there only. The true fact is that she is moving in the entire house along with her daughter Mithila Kumari with due respect. That she has lost her father in the year 2007 and her brother in 2012, so she has no residence to reside. Wherefore she prays for the relief of permanent injunction to restrain the plaintiffs as well as the defendant no.2 from dispossessing her from the counter claim schedule property without due process of law and for such other reliefs.
6. In the counter claim schedule she has described the very suit schedule property and seeks relief as mentioned above.
7. The plaintiffs have filed the re-joinder to her written statement and they have also filed their written statement to the counter claim filed by her. Since in the said re-joinder and written statement more or less the very same facts, which have been narrated in the plaint are averred, leaving aside them I refer to the additional pleading made therein. It is settled position of law that there can be no injunction against the true owner and when it is shown that these plaintiffs are the absolute owners of the suit schedule property, it is too much 10 O.S.No:3370/2012 for the defendant no.1 to seek injunction against them in the guise of seeking relief against her husband (Defendant no.2). It is emphatically denied that while purchasing the suit schedule property her father financially assisted them by paying Rs.6 lakhs. The true fact are that the defendant no.2 is their only son and when he threatened to kill himself having fell in love with the defendant no.1, they were forced to agree for their marriage and it was celebrated as per the Hindu rituals. It is again reiterated that because of the atrocities of their neighbour, which is none other than the parental house of defendant no.1, these plaintiffs shifted from Frazer Town to suit property. Before her marriage the defendant no.1 was working in a private company and because of her prejudicial acts against the company and for instigating the co-employees the said company removed her from service. Almost every night the defendants 1 and 2 use to quarrel with each other and they have spoiled the family atmosphere. Because of their loud shouting in their bedroom lives of the others have become hell on the earth. On account of their said strained marital life the plaintiffs' daughter decided to avoid marriage and she is not married till this day. The plaintiffs have suffered untold misery at their old age because of the misbehavior, inhuman and disgraceful attitude of the defendant no.1, who was all the while interested to get register the suit property in her name. That because of his differences with defendant no.1, the defendant no.2 is residing separately from 2011 and these plaintiffs are not getting any kind of moral or financial help 11 O.S.No:3370/2012 from him. Infact these plaintiffs themselves are paying the school expenses and other expenses of their grand daughter. These plaintiffs are presently living in the schedule property under constant fear because of the ill-behaviour of the defendant no.1. They are no-longer interested to tolerate them in the evening of their age. It is denied that though the plaintiff no.2 was a doctor, she did not take care of defendant no.1 when she was carrying the first child. The real fact is that the defendant no.1 herself got aborted the child and more so the plaintiff no.2 has stopped practicing medicine or consultation after her retirement. These plaintiffs intend to live peacefully in their self-acquired property, wherefore they seek to dismiss the counter claim with costs.
8. The defendant no.2 nevertheless appeared through his advocate, he has not taken interest to contest.
9. Based on the said pleadings my predecessor in office has framed the following issues and I have framed an additional issue as under;
ISSUES
1. Whether the plaintiffs prove that the defendant no.1 has lost her right to continue her stay in 'A' schedule portion of plaint schedule house?
12 O.S.No:3370/20122. Whether the act of the defendants amounts to illegal interference into the suit property?
3. Whether the plaintiffs are entitled to get the 'A' schedule portion from the defendants?
4. Whether the plaintiffs are entitled to get the relief of permanent injunction?
5. To what order or relief the plaintiffs are entitled to?
Additional issue:
Whether defendant no.1 proves that she is entitled for the relief of permanent injunction as prayed against the plaintiffs as well as defendant no.2?
10. In support of their case plaintiff no.1 examined himself as PW1 and got marked three documents. On the other hand the defendant no.1 examined herself as DW1 and she got marked five documents. Heard the arguments of Sri.CDJ, Advocate for the plaintiffs and Sri.HKS, Advocate for defendant no.1. There was no representation for the defendant no.2.
Perused the written arguments filed by the plaintiffs and decisions relied by the parties.
11. My findings on the above issues and additional issue are as under:
13 O.S.No:3370/2012Issue No:1 - In the affirmative Issue No:2 - In the affirmative Issue No:3 - In the affirmative Issue No:4 - In the affirmative Issue No:5 - As per final order, for the following:
Additional issue : In the negative REASONS Issue No.1 to 4 and additional issue:
12. Since these issues are intricately interwoven I have taken them for simultaneous discussion.
13. The undisputed facts in this case are that, the plaintiffs are in-laws of defendant no.1 and the defendant no.2 is their son and before they shifted to the suit property the plaintiffs as well as the defendants were residing at Lazar Layout, Frazer town, Bangalore. According to me the reason for shifting from Frazer Town to schedule property is not so material to decide the case in hand. What I am expected to examine is whether in the given facts of the case the defendant no.1 can seek the relief as prayed her or in the alternative whether plaintiffs can seek the relief of eviction against the defendants?
14. Regarding the prayer made in para-13(i) of the plaint and referring to the schedule 'A' property, which is only a bed room situating in the North-East portion of the suit property, Sri.HKS, Advocate contended that even assuming for a moment 14 O.S.No:3370/2012 that court were to decree the suit, at the most the defendant no1. can be asked to eject from the said bedroom and she can very well relocate herself in rest of the residential building. It was his contention that the schedule property being shared house of defendant no.1 as she is residing with plaintiffs right from the day of her marriage and she gave birth to her daughter in that property, she cannot be evicted from the suit property as it is her matrimonial home. He also referred to the plaint allegations that as admitted in the plaint itself the defendant no.1 is using the common facilities like kitchen, dinning and open hall of the schedule property along with plaintiffs, the relief of eviction restricting it to 'A' schedule property will not help the plaintiffs in any manner. It was his submission that even if a Hindu wife is divorced by her husband, she will continue to remain as wife still she re- marries, so notwithstanding the fact that a divorce petition is filed by defendant no.2 against the defendant no.1, she cannot be asked to vacate the schedule property. In support of his said arguments he referred to the decisions reported at MANU/DE/0167/2014 (Smt.Preeti Satija Vs Smt.Raj Kumari and Anr.), MANU/DE/2132/2014 (Navneet Arora Vs Surender Kaur) and judgement of Hon'ble High Court of Kerala, Ernakulam Bench in Crl.MC.No:845/2008 (S.Prabhakaran S/o Late Kannan Vs Shiny Prabha D/o Vasudevan). Thus he prayed to dismiss the suit and decree the counter claim. On the other hand Sri.CDJ, Advocate referring to the decision of Delhi High Court in RFA No:183/2006 and CM No.4575/2006 (Sadar Malkiat 15 O.S.No:3370/2012 Singh Vs Kanwaljit Kaur and others) submitted that since the suit property is the exclusive property of plaintiffs, the defendant no.1 has no semblance of right to continue in possession of the property and there cannot be no injunction against the true owner. In view of these rival submissions I have carefully gone through the oral and documentary evidence made available by them.
15. At the beginning itself I would like to clarify that every case which comes up before a court or tribunal poses a distinguishable feature of it's own, so before importing a ratio laid down in some other case in the facts and circumstances of that case, it has to examined whether similar such facts exist or not ie, one cannot blindly borrow the ratio without looking into the facts of such case. With this prelude I proceed further.
16. No-doubt in her written statement cum counter claim the defendant no.1 has made a passing observation that her father financially helped by paying Rs.6 lakhs to the plaintiffs to purchase the suit property and she denied that it is their exclusive property, in order to substantiate her said allegation, she has not produced any iota of evidence. On the other hand the oral evidence of PW1 that suit property is their self- acquired property is fully corroborated and vindicated by the certified copy of the sale deed dt.21.3.2003, which is marked as Ex.P1. The contents of the said sale deed, admittedly purchased after marriage of defendant no.1 and 2, show that it is the plaintiffs who purchased that property out of their self 16 O.S.No:3370/2012 earnings. It is not in dispute that these plaintiffs were working in the Indian Army and they received the retirement benefits. As pleaded by defendant no.1 herself in addition to the suit property the plaintiff no.1 also owns a Farm House at Talawadi, Chamarajnagar District and Tea Estate at Guduloor, Tamil Nadu. It is not her case that her husband i.e. defendant no.2 contributed anything to purchase the suit property. So one cannot doubt the financial ability or capacity of the plaintiffs to purchase the suit property from their own sources. This fact has been admitted by DW1/Defendant no.1 on page no.7 of her cross-exam. There she conceded that suit property is the self-acquired property of the plaintiffs. When a direct question was put to her whether herself or her husband (defendant no.2) are having any right or interest in it, she expressed her ignorance. I think it seals the dispute if any on the title of the said property. Hence without any hesitation I can conclude that suit property is the exclusive property of plaintiffs and they are the absolute owners of it. I think this finding goes long way in deciding rest of the controversy.
17. Once it is held that the suit property is the absolute property of the plaintiffs and they are the exclusive owners of it, now what remains is, whether the defendant no.1 can seek shelter in the said home under any of the provision of law. In her written statement cum counter claim on page no.14 at para-23 even after alleging that she cannot be dispossessed from the 'A' schedule property contrary to law relating to maintenance under the Hindu Law, Cr.P.C. and the Domestic 17 O.S.No:3370/2012 Violence Act, none of the provision of the said Act was brought to my notice during the arguments to show that under the relevant provision she can seek the relief as prayed by her by rejecting the prayer of plaintiffs.
18. First of all I doubt the granting of relief as sought in counter claim. It is relevant to note that in para-29(a) of her written statement cum counter claim the defendant no.1 seeks an injunction to restrain the plaintiffs and defendant no.2 or anybody claiming under them from dispossessing her from the counter claim schedule property without due process of law. So what can be made out is that the defendant no.1 is herself aware that as the plaintiffs are the absolute owners of the suit property or counter claim property she cannot seek an injunction against them and she only seeks to protect her possession till she is dispossessed in a manner known to law. The fact that plaintiffs have sought for the relief of possession based on their title and they are also seeking injunction against her as well as the defendant no.2 not to interfere in possession of their plaint schedule property itself vouches that they are not interested to take law in their own hands.
19. I think the pleadings of defendant no.1 i.e. her written statement and counter claim exfacia show that she has not come to the court with clean hands and she is not sure how she has to present her defence. Her duel mentality can be gathered from the said pleadings. Having alleged in throughout her written statement that the plaintiffs were harassing her;
18 O.S.No:3370/2012that they were insulting her before the guests and friends and they were indirectly or directly abetting the defendant no.2 in torturing her etc., etc., and she being a brave lady she resisted their ill-deeds by filing complaint against them U/Sec.498A, 420, 294 of IPC and she has also filed criminal miscellaneous petition to vindicate her residential right in the suit property she has produced good number of documents. It means the said allegations are not bald allegations rather they are supported by documents like the certified copy of the order passed by MMTC-I court in Crl.Misc.81/2012 produced at Ex.P3 and certified copy of the FIR in Banasawadi Police Station Cr.No:196/2012 at Ex.D1, copy of the complaint at Ex.D2 and one more complaint filed in Banasawadi Police Station at Ex.D3. As admitted by her in the cross-exam criminal case filed by her against the plaintiff, the defendant no.2, daughter of plaintiffs and their family friend came to be withdrawn by her. Ex.D1 shows that in addition to alleging cruel treatment against the defendant no.2 this defendant no.1 roped-in the plaintiffs, their daughter and their family friend and they are accused no.2 to 5in that case. If really she was aggrieved in their hands she ought not to have withdrawn that complaint. The Ex.P3 shows that seeking the reliefs U/Sec.18 to 20 and 22 of D.V. Act she filed that case not only against defendant no.2 even against plaintiff no.1 and after trial the MMTC-I court partly allowed that petition and restrained the defendant no.2 from committing any act of domestic violence; directed him to pay Rs.3,000/- p.m. towards rent from the date of that order; to 19 O.S.No:3370/2012 pay monthly maintenance of Rs.6,000/- from the date of filing of the petition; to pay Rs.10,000/- towards educational expenses of Mithila Kumari from the date of order and to pay Rs.6,000/- as compensation. Whereas in respect of plaintiff no.1 all her prayers were came to be rejected. There is no material on record to show that the defendant no.1 questioned the said order and it was modified or reversed in the appellate court.
20. The purpose of referring to Ex.P3 and Ex.D3 is that because of the strained relationship between the defendants 1 and 2 these plaintiffs have suffered. I would substantiate this with the very own pleading of the defendant no.1. As pleaded in para-20 of her counter claim cum written statement (on page no.12 and 13) even now she is cooking and is freely moving and playing with her child Kumari Mithila in the house, lawn and moving around with due respect in the entire house ...... I think her said pleading is more than enough to show that there was no harm to her reputation nor she was subjected to any kind of harassment by the plaintiffs at any point of time. This is further corroborated in para-11 of her said written statement. There lamenting on the plaintiff no.1 who came to know regarding temporary stay of Pankaja in his farm house at Talawadi, this defendant has herself pleaded that on coming to know the same the plaintiff no.1 got infuriated that his personal bedroom was used by the defendant no.2 and the said Pankaja as such he straightaway left to Talawadi Farm House and he burnt down the beddings, chappals etc., used by 20 O.S.No:3370/2012 that lady and prohibited Pankaja as well as defendant no.2 from entering and using the farm house hence-forth. This incident narrated by the defendant no.1 shows how the plaintiffs were unhappy about the alleged deeds of defendant no.2. It is further reflected in the cross-examination of PW1. On Page no.13 of his cross exam PW1 replied that every day night there use to be fight between the defendants so to avoid any kind of bloodshed, he driven out defendant no.2. Then explaining the reason why he driven out their son only, he stated that because the defendant no.1 is a woman and she is having a female child he drove out his son. Then on page no.10 in the middle paragraph when he was questioned regarding the first child of defendant no.1 he tried to avoid to answer it by stating that he do not want to recall the said incident at this advanced age and it being a painful event he is not interested to remember it. The further reply of the PW1 on page nao.13 in the posteior paragraph that he is angry with the defendant no.2 so he has not made any efforts to know his whereabouts and residence and his admission that his said son/defendant no.2 is in touch with his wife (plaintiff no.2), because she is his mother would reflect on the fair admission truth and culture of the plaintiffs.
21. The another crucial point is that the plaintiffs being well educated consciously seek to restrict their prayer of recovery of possession and injunction against the defendants only and they do not want to see that it should affect their 21 O.S.No:3370/2012 grand daughter Mithila Kumari. I think these are the factors which guide this court in deciding this matter.
22. As held in Taruna Bhatra Vs S.R.Bhatra and others at ILR (2005) 1 Delhi 66 and 2006(4) Crimes 433 a wife can claim right to residence U/Sec.17(1) of the D.V. Act in shared house provided if it is a joint family property or the property in which her husband is having share or where her husband takes a property on rental basis. In the case in hand as discussed above the suit property is exclusive property of plaintiffs and the defendant no.2 has no semblance of right in it. Therefore the defendant no.1 cannot assert her right of residence in the schedule property. It is the legal and moral obligation of defendant no.2 to provide residence to his wife and as he failed to discharge his obligations, order at Ex.P3 was came to be passed against him by competent court. There is no legal or moral obligation on the in-laws of defendant no.1 to look after or provide shelter to her and especially as can be seen from the order at Ex.P3 when this defendant no.1 possess her own house at Thanisandra, Bangalore.
23. Coming to the decisions relied by the defendant no.1, as can be seen from the facts of Smt.Preeti Satija's case mother-in-law wanted to evict her daughter-in-law on the strength of will executed by her husband bequeathing the disputed property to her. In that case execution of will itself was in dispute and it was not probated. So in that circumstances holding that if will is not proved son also gets 22 O.S.No:3370/2012 share in the property U/Sec.8 of The Hindu Succession Act and through him the daughter-in-law can assert her right Hon'ble Court declined to grant relief to the mother-in-law. In the Shiny Prabha's case there also the Hon'ble High Court of Kerala came to the conclusion that husband of the petitioner was having share in the property wherefore it rejected the prayer of father- in-law to grant the relief of ejectment. In the Navneet Arora's case after coming to the conclusion that the property in dispute was acquired out of the joint family business, Hon'ble Court held that the daughter-in-law is entitled for right to reside in such property. Thus the facts and circumstances involved in those cases being distinguishable, the ratio laid down in those decisions cannot be borrowed and applied to the case in hand.
24. Last but not the least mere seeking of eviction from the schedule 'A' property does not mean that the defendants or more precisely defendant no.1 can continue in possession of rest of the property. It is trait of civil law that when pleadings are to be read they have to be read as whole and not by reading one or two selected sentences in isolation. One cannot forget that plaintiffs are also seeking injunction against both defendants from interfering in their lawful possession and enjoyment of the entire plaint schedule property wherein schedule 'A' property is integral part. Therefore I find no ambiguity in their prayer.
25. For the aforementioned reasons I conclude that the defendant no.1 has lost her right to continue her stay in 'A' 23 O.S.No:3370/2012 schedule property and the acts of defendant no.1 in filing criminal case and roping-in the plaintiff no.1 in Crl. Misc. Petition No:81/2012 would show that she interfered in their peaceful living in the suit property. Here I may straight away refer to her cross-examination recorded on page no.9. There she admitted the truth by stating that since defendant no.2 filed divorce case against her, she filed criminal case against him and since the plaintiffs filed this suit she included the plaintiff no.1 in that case. It shows that in order to retaliate for the alleged wrongs committed by defendant no.2, this defendant no.1 is making the plaintiffs life miserable that too by residing in their own house. Both plaintiffs being senior citizens at the evenings of their life, for the so-called sin committed by their son (defendant no.2), cannot be penalized. Hence I hold that the plaintiffs are very much entitled for the reliefs as prayed for and conversely I reject the prayer of defendant no.1 for grant of injunction, accordingly I answer issue no.1 to 4 in the affirmative and additional issue in the negative.
Issue No.5:
26. In the light of the above findings I once again reaffirm that plaintiffs are entitled for an order of eviction and further relief of permanent injunction to restrain both the defendants from interfering in their peaceful possession and enjoyment of the schedule property. Hence, I proceed to make the following:
24 O.S.No:3370/2012ORDER Suit is decreed.
The defendants are directed to quit, vacate and hand over the vacant possession of the schedule 'A' property within three months from the date of this order.
The defendants are further permanently restrained from interfering in the plaintiffs' lawful possession and enjoyment of the suit schedule property.
In view of the peculiar circumstances of the case, parties shall bear their own costs.
Draw decree accordingly.
(Dictated to the Judgement Writer, transcription computerized, then corrected and pronounced by me in open court this the 30th day of November 2016) (Ron Vasudev), III Addl. City Civil & Sessions Judge, Bengaluru.
List of witnesses examined for the plaintiffs side:
PW1 Col.Kulbhushan Kumar (Retd) List of documents exhibited for the plaintiffs side:
Ex.P1 Certified copy of the sale deed dt.21.3.03 25 O.S.No:3370/2012 Ex.P2 Tax paid receipt Ex.P3 Certified copy of the order copy in Crl.Mis.81/12 List of witness examined for the defendants side:
DW1 Beena Kumar Bhardwaj List of documents exhibited for the defendants side:
Ex.D1 Certified copy of the FIR
Ex.D2 Complaint
Ex.D3 Complaint
Ex.D4 Photo
Ex.D5 Photo
(Ron Vasudev),
III Addl. City Civil & Sessions Judge,
Bengaluru.