Does a son-in-law have any legal right in his
father-in-law's property and building? Admittedly, the plaint
schedule property was gifted in favour of the plaintiff by the
church authorities by virtue of Ext.A1 Gift Deed. The plaintiff
is paying tax to the property by virtue of Ext.A2. He is also
paying tax to the building. Exts.A3 to A9 would show that he
has been residing in the plaint schedule building. It is difficult
to hold that the defendant is a member of the family. The
family of the plaintiff consists of his wife and daughter. The
plaintiff has not filed any suit against his own daughter.
However, he does not want the defendant to stay along with
him. The plaintiff 's wife filed M.C.No.14/2012 against the
defendant for a protection order and at the instigation of the
defendant, the daughter of the plaintiff filed another
M.C.No.19/2012 against the plaintiff. Later, by Exts.B2 and
B4 awards, the cases were settled by way of compromise in
order to maintain harmony among the members of the family.
The settlement in the said cases would not enure any benefit to
the defendant. {Para 14}
15. Since the behaviour of the defendant became
intolerable, the plaintiff filed a suit seeking a permanent
prohibitory injunction restraining the defendant from entering into
the plaint schedule property and building. This was resisted by
the defendant pointing out the fact that he had constructed the
building after availing a loan. He had also produced certain
receipts allegedly issued in his favour by Taliparamba Service
Co-operative Bank to show that housing loan was cleared by
him. Exts.B5(a) to B5(h) receipts would show that the
Thaliparamba Service Co-operative Bank issued receipts in the
name of the plaintiff. Merely because the defendant remitted
the amount, he could not claim any independent right over the
building to the detriment of the true owner.
16. In the present case, the possession of the
plaintiff was upheld by the two courts below concurrently.
The defendant cannot even make a plea to be in possession of
the suit property, as of right. It is a settled principle of law
that even a trespasser, who is in established possession of the
property, could obtain an injunction. However, the matter
would be different if the plaintiff himself is the true owner of
the property. The defendant is the son-in-law of the plaintiff.
It is rather shameful for him to plead that he had been
adopted as a member of the family, subsequent to the
marriage with the plaintiff's daughter.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
MR.JUSTICE N.ANIL KUMAR
6TH DAY OF SEPTEMBER, 2021
RSA NO. 418 OF 2019
DAVIS RAPHEL Vs HENDRY THOMAS,
Coram: N.ANIL KUMAR
This Regular Second Appeal has been filed by the
defendant in the civil suit challenging the judgment and
decree dated 22.2.2019 in A.S.No.58/2016 of the Sub Court,
Payyannur (hereinafter referred to as 'the first appellate
court') by which judgment, the first appeal of the defendant
was dismissed by the first appellate court confirming the
judgment and decree dated 30.09.2016 in O.S.No.33/2012 of
the Munsiff's Court, Taliparamba (hereinafter referred to as
'the trial court').
2. For brevity, the parties shall be referred to as
referred in the original suit. Brief facts of the case giving rise to
this appeal are as follows:-
The plaintiff Sri.Hendry Thomas, aged 69 years,
who is the respondent in this appeal, filed the original suit
before the trial court claiming for permanent injunction
interdicting the defendant from trespassing into the plaint
schedule property or interfering with the plaintiff's peaceful
possession and enjoyment of the plaint schedule property and
the house therein or committing any waste therein. The suit
property measuring an area of 5 cents of land comprised in
Re-Sy.No.21/5 of Taliparamba amsom, Thrichambaram
desom, belongs to the plaintiff by virtue of a gift deed
No.4034/1981 by Rev.Fr.James Nasrath for and on behalf of
St.Paul's Church, Thrichambaram.
3. The plaintiff claimed to have obtained the
property by virtue of the gift deed stated above. According to
him, he has constructed a concrete house spending his own
funds and he is residing therein with his family.
4. The defendant is none other than the son-in-law
of the plaintiff and he has no manner of right over the
property. The main complaint of the plaintiff is that the
defendant is disturbing the plaintiff's peaceful possession and
enjoyment over the suit property. Hence the suit was filed.
5. The defendant filed a written statement refuting
the claim of the plaintiff. The defendant admitted that the
plaintiff obtained the property by virtue of the gift deed cited
supra. According to him, the title of the suit property itself is
questionable as the alleged gift deed was executed by the
church authorities for the family. He would contend that he
has married the only daughter of the plaintiff and has been
practically adopted as a member of the family subsequent to
the marriage. Hence, he maintained that he has a right to
reside in the house, as of right. He further contended that he
has constructed a building in the property expending his own
money and he has no other place of abode. He further
contended that the plaintiff's wife Molly filed M.C.No.14/2012
against the defendant for a protection order, which was settled
between the parties, agreeing to reside together in the plaint
schedule building.
6. The plaintiff's wife had been examined as PW1.
The defendant and two witnesses were examined as DWs.1 to
3. The plaintiff marked Exts.A1 to A9 series and the defendant
marked Exts.B1 to B8 series.
7. The trial court held that the plaintiff is the owner
in possession of the plaint schedule property and the
defendant, who is the son-in-law of the plaintiff, has no
manner of right in interfering with the possession of the plaint
schedule building. The trial court further held that the awards
passed in M.C.Nos.14/2012 and 19/2012 do not create any
interest in the property or the house therein, which absolutely
belong to the plaintiff. Accordingly, the suit was decreed.
8. The defendant filed an appeal before the first
appellate court. The first appellate court also came to the
conclusion that the defendant has no manner of right to disturb the
peaceful possession of the plaintiff over the plaint schedule
building. The appeal was dismissed, accordingly.
9. Heard Sri.Blaze.K.Jose, the learned counsel
for the appellant and Sri.V.T.Madhavan Unni, the learned
counsel for the respondent.
10. Learned counsel for the appellant submits that
both the courts below erred in decreeing the suit for
prohibitory injunction from trespassing into the plaint
schedule property in which the defendant also resides. The
learned counsel further submits that the suit for injunction
simpliciter is not maintainable as the defendant has been
residing in the suit property on the date of suit. It is further
contended that the defendant has a right to reside in the
building as a member of the family and the plaintiff has no
manner of right to obstruct the same.
11. Sri.V.T.Madhavan Unni, the learned counsel
appearing for the respondent refuting the submission of the
learned counsel for the appellant contends that the plaintiff
has successfully proved his possession over the building,
which is also practically admitted by the defendant in his
written statement. It is further contended that the defendant
is not a co-owner of the property and as such, he has no right
to continue his residence in the plaint schedule property to the
detriment of the true owner. Thus, it is submitted that the suit
was decreed rightly by the two courts below.
12. This court has considered the rival submissions
of the learned counsel for the appellant and the respondent.
13. This second appeal was instituted on 9.4.2019.
When the case came up for admission on 10.4.2019, this Court
issued notice on admission to the respondent by speed post.
An interim stay was also granted for two months. Thereafter,
the stay was not extended. The sole respondent entered
appearance. On 6.8.2019, this Court passed an order referring
the parties to mediation to be conducted by the Mediation
Centre attached to this Court, having taken into consideration
the fact that the parties are close relatives. The parties
appeared before the Mediator. The case was mediated on
22.8.2019, 3.10.2019, 10.10.2019,17.10.2019,30.1.2020 and
13.2.2020. However, the matter was not settled. The report of
the Mediator in the matter along with the enclosures were
furnished before this Court.
14. Does a son-in-law have any legal right in his
father-in-law's property and building? Admittedly, the plaint
schedule property was gifted in favour of the plaintiff by the
church authorities by virtue of Ext.A1 Gift Deed. The plaintiff
is paying tax to the property by virtue of Ext.A2. He is also
paying tax to the building. Exts.A3 to A9 would show that he
has been residing in the plaint schedule building. It is difficult
to hold that the defendant is a member of the family. The
family of the plaintiff consists of his wife and daughter. The
plaintiff has not filed any suit against his own daughter.
However, he does not want the defendant to stay along with
him. The plaintiff 's wife filed M.C.No.14/2012 against the
defendant for a protection order and at the instigation of the
defendant, the daughter of the plaintiff filed another
M.C.No.19/2012 against the plaintiff. Later, by Exts.B2 and
B4 awards, the cases were settled by way of compromise in
order to maintain harmony among the members of the family.
The settlement in the said cases would not enure any benefit to
the defendant.
15. Since the behaviour of the defendant became
intolerable, the plaintiff filed a suit seeking a permanent
prohibitory injunction restraining the defendant from entering into
the plaint schedule property and building. This was resisted by
the defendant pointing out the fact that he had constructed the
building after availing a loan. He had also produced certain
receipts allegedly issued in his favour by Taliparamba Service
Co-operative Bank to show that housing loan was cleared by
him. Exts.B5(a) to B5(h) receipts would show that the
Thaliparamba Service Co-operative Bank issued receipts in the
name of the plaintiff. Merely because the defendant remitted
the amount, he could not claim any independent right over the
building to the detriment of the true owner.
16. In the present case, the possession of the
plaintiff was upheld by the two courts below concurrently.
The defendant cannot even make a plea to be in possession of
the suit property, as of right. It is a settled principle of law
that even a trespasser, who is in established possession of the
property, could obtain an injunction. However, the matter
would be different if the plaintiff himself is the true owner of
the property. The defendant is the son-in-law of the plaintiff.
It is rather shameful for him to plead that he had been
adopted as a member of the family, subsequent to the
marriage with the plaintiff's daughter.
17. In Nair Service Society Ltd. v.
K.C.Alexander and others [AIR 1968 SC 1165], where a
Three Judge Bench of the Supreme Court has reiterated the
principle that possession is good against all but the true
owner. In view of the dictum laid down in the aforesaid
decision, a person in possession of the land in the assumed
character of owner and exercising peaceably the ordinary
rights of ownership has a perfectly good title against all the
world but the rightful owner. The rightful owner filed a suit
for injunction restraining him from entering into the property.
The residence of the defendant, if any, in the plaint schedule
building is only permissive in nature. The defendant cannot
contend that he is in legal possession of the suit property or
the building. As noted above, both the courts below have
given cogent reasons for holding that the suit filed by the
plaintiff for injunction was maintainable without seeking
further relief.
18. The submission of the learned counsel for the
appellant that the evidence adduced by the defendant had not
been looked into is not factually correct. The trial court as well
as the first appellate court have analysed not only the oral
evidence but the exhibits, which had been filed on behalf of the
defendant, which are clearly evident from paragraphs 16 and
22 to 24 of the first appellate court judgment. This Court is of
the view that it is not necessary to decide the validity of Ext.A1
Gift Deed executed by the church in favour of the plaintiff.
The suit for injunction filed by the plaintiff deserves to be
considered on the strength of established possession of the
plaintiff over the suit property and the building therein.
19. Learned counsel for the appellant contends that
the plaintiff is a man of bad character and he is not on good
terms with the members of his family. Section 52 of the
Indian Evidence Act provides that in civil cases, a fact
pertaining to the character of an individual is not relevant. It
lays down the principle that the character of a party as a piece
of evidence cannot be used to manifest that conduct attributed
to him is not probable or improbable. The reasons behind the
irrelevance are that a civil case has to be decided based on the
matter in issue between the parties and not based on the
present or past character of the parties.
20. On behalf of the respondent, it has strenuously
been contended with considerable force that there was no
question of law involved in this appeal much less any
substantial question of law to warrant interference in second
appeal. Concurrent findings are sought to be set aside in
second appeal. To be a question of law involved in the case,
there must be first, a foundation for it laid in the pleadings,
and the question should emerge from the sustainable findings
of fact, arrived at by Courts of facts, and it must be necessary
to decide that question of law for a just and proper decision of
the case. A concurrent finding of fact that the plaintiff has
been in possession of the suit property on the date of suit is
not open to challenge in the second appeal even if appreciation
of evidence is wrong and the finding of fact is incorrect.
Hence, this Second Appeal is liable to be dismissed.
For the above said reasons, this Court does not
find any error in the judgment of the first appellate court
confirming the judgment and decree of the trial court by
decreeing the suit for injunction simpliciter. Thus, this RSA is
dismissed with costs. Pending applications, if any, stand
closed.
Sd/-
(N.ANIL KUMAR)
JUDGE
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