Friday, 17 April 2020

Whether in suit U/S 6 of Specific relief Act wife can claim right to residence in shared household as per DV Act?

Plaintiff was examined as PW1. He deposed in tune with the plaint averments and stated that he purchased the vacant site under Ex. A1 in the name of his son. Since he was retired and it was difficult to get loan in his name, hence, the loan was obtained in his name and in the name of his son. Plaintiffs claim is that he paid the loan instalments out of his own money. His case is that inasmuch as the suit property belongs to him, his son executed two gift deeds under Exs. A2 and A3 in his favour and thereby, the plaintiff became the absolute owner of the suit property. This is the evidence of plaintiff with regard to the origin of the suit property. It must be noted that plaintiffs son Maddimsetti Vasudeva Nrusimha Satyanarayana is not a party to the suit but his wife i.e., D1 is the party. Be that it may, D1 also did not dispute about the factum of execution of the gift deeds. Her case is that the suit property belongs to her husband and in view of the matrimonial disputes between herself and her husband, he colluded with his parents and executed sham and nominal gift deeds in favour of plaintiff obviously to smother her right of residence in the suit property. So from the pleadings and evidence, it is clear that plaintiffs son executed two gift deeds in favour of plaintiff in respect of the suit property and though D1 claims the same as sham transaction, she has not so far filed any independent suit questioning the validity of the gift deeds. It is already discussed supra that in a suit of this nature filed under Section 6 of Specific Relief Act, title of the parties is rot germane for consideration except possession. In that view, for the sake of this suit, the contentions of defendant with regard to the validity of the gift deeds cannot be taken into consideration. On the other hand, having regard to the fact that Exs. A2 and A3 are registered gift deeds, the title of the plaintiff for the sake of this suit can be accepted though the same is the subject-matter in a comprehensive suit based on title.

15. The next crucial aspect for consideration is whether the plaintiff was in possession of the suit property and he was dispossessed by D1 to D3 on the evening of 10.5.2015.

15A. A perusal of Exs. A4, A6 to A15 and A20 to A22 would show that plaintiff has been paying the house tax, electricity bills and water tax to the authorities in respect of the suit property which implies that he has been in occupation of the suit property. Apart from the documentary evidence, the oral, evidence of PWs. 1 and 3 would also confirm the same. Though D1 contended that the plaintiff was never in possession but she has been in possession of the suit property, the same is not borne out by any record except her parole evidence. 

The plaintiff and his wife are aged persons and the record shows that they have been in possession of the suit house and therefore, it is highly unbelievable that seeing the defendants, they would leave the house. So the evidence on record clearly establishes the fact that the defendants have highhandedly dispossessed plaintiff and his wife. The suit was filed on 2.11.2015 seeking recovery of possession and it is clear that the suit was filed within six months from the date of dispossession and the ingredients of Section 6 are complied with.

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

CRP No. 619 of 2019

Decided On: 12.06.2019

 Maddimsetty Ramana Kumari Vs.  Maddimsetty Narasimha Rao and Ors.

Hon'ble Judges/Coram:
U. Durga Prasad Rao, J.
Citation: AIR 2020 AP 2


1. Challenge in this CRP at the instance of defendant No. 1 is to the judgment dated 30.1.2019 in OS No. 208 of 2015 passed by learned V Additional District Judge, Rajamahendravaram, whereby plaintiffs suit was decreed and defendants 1 to 3 were directed to vacate the plaint schedule property within one month from the date of judgment and deliver vacant possession of the suit property to the plaintiff.

2. For the sake of convenience, the parties hereinafter will be referred to as they were arrayed before the lower Court.

3. The factual matrix of the case is thus:

3A. The plaintiff is the father-in-law of D1. D2 is the elder brother and D3 is the junior paternal uncle of D1. Plaintiffs case is that he is the absolute owner of the plaint schedule property as he got the said property from his son Maddimsetti Vasudeva Nrusimha Satyanarayana, under registered gift deeds dated 19.10.2010 and 12.4.2012. Ever since, the plaintiff and his wife have been residing in a portion of the plaint schedule property by letting out half of the first floor portion of the building. It is the case of the plaintiff that after the marriage between D1 and second son of plaintiff, they lived at various places like Bangalore, Gujarat, New Delhi, Qatar and Abu Dhabi. Subsequently, D1 alongwith her two children lived with the plaintiff for about two years and thereafter, went away to her parents house in the month of June, 2012 and due to family disputes, she filed CC No. 453 of 2012 on the file of II Additional Judicial First Class Magistrate, Bhimavaram, under Section 498-A IPC against plaintiff, his wife and three sons. The Trial Court convicted them and on appeal, the III Additional District and Sessions Judge, Bhimavaram, acquitted them in Criminal Appeal No. 220 of 2014. The husband of D1 filed a Guardian O.P. on the file of Principal District Court, Eluru, for custody of the children, which was allowed. He also filed a Divorce OP No. 139 of 2015 on the file of family Court, Rajahmundry, seeking divorce against D1. The plaintiff and his wife are not concerned with the matrimonial disputes between D1 and her husband. The husband of D1 is working at Abu Dhabi and D1 has been residing in her parental house at Akiveedu.

3B. Further case of plaintiff is that, due to ill-advise of D2 and D3, taking advantage of the old age and sickness of plaintiff and his wife, all the defendants highhandedly trespassed into the suit property on 10.5.2015 between 06.30 and 07.00 p.m. and dispossessed the plaintiff and his wife and when questioned, they threatened to kill them. The neighbours including Rayudu Pullayya and Katni Suryavathi tried to intervene, but the defendants did not heed them. The plaintiff gave a complaint to C.I. of Police, III Town Police Station, Rajahmundry. A case in Crime No. 196 of 2015 was registered for the offences under Sections 448 and 506 IPC against the defendants. Hence, the plaintiff filed the suit under Section 6 of Specific Relief Act for recovery of possession.

3C. D1 filed written statement denying the plaint averments. She admitted the relationship between the parties. She denied the plaint averments that the defendants trespassed into the suit property and dispossessed the plaintiff on 10.5.2015. Her case is that, she has been residing in the suit property as a shared household of her husband. D1 and her husband used to reside in the plaint schedule property. Later, her husband and in-laws harassed D1 for additional dowry, as a result, she lodged a police report and they registered a case against her husband and in-laws under Section 498-A IPC. The Trial Court convicted the accused whereas the lower appellate Court acquitted them, against which, an appeal is pending before the High Court. The husband of D1 also filed a Guardian O.P. and Divorce O.P. against D1 and the same are pending. Her further case is that pending trial of criminal case, the husband of defendant and his parents colluded together and in order to defeat her right in the shared household, they have created the gift deeds. In fact there was no acceptance of the gift deeds and possession was never handed over to the plaintiff as per the alleged gift deeds. D1 contended that the plaintiff was never in possession of the plaint schedule property. The gift transactions are sham and collusive. D1, thus, claimed right of possession and occupation in the plaint schedule property as her matrimonial home. She, thus, prayed to dismiss the suit.

4. During trial, following issues were framed:

(i) Whether the plaintiff is entitled for the relief of vacant possession of the plaint schedule property after evicting the defendants there from?

(ii) To what relief?

5. During trial, PWs. 1 and 3 were examined and Exs. A1 to A23 were marked on behalf of plaintiff. On behalf of defendants, DWs. 1 and 2 were examined but no documents were marked. The Trial Court having regard to the evidence on record i.e., Exs. A2, A3, A4, A6 to A15 held that the plaintiff could establish his title to the suit property and the defence set up by the defendants is untenable. Then, the Trial Court having regard to the oral evidence of PWs. 1 and 3 held that plaintiff and his wife were in possession of the suit property till 10.5.2015, on which date the defendants disposed them. The Trial Court then considered the contention of D1 that she is in possession of the property by means of shared house hold and held that when suit property is the exclusive property of plaintiff, she cannot claim possession as a shared house hold by placing reliance on the judgment of Hon'ble Apex Court in S.R. Batra and others v. Taruna Batra, MANU/SC/0007/2007 : 2007 (2) ALD 66 (SC). The Trial Court ultimately decreed the suit and directed the defendants to evict the suit property within one month from the date of judgment.

Hence, the CRP.

6. Heard learned Counsel for petitioner, Sri K.V.S.S. Prabhakar Rao and Sri K. Chidambaram, learned Counsel for respondent.

7A. Learned Counsel for petitioner carped the judgment of the Trial Court on two main grounds. Firstly, he would argue, the Trial Court failed to appreciate the contention of the petitioner/D1 in right perspective. The contention of D1 is that the land covered by the suit property was in fact purchased by the husband of D1 and he constructed house thereon with his own funds and therefore, the property belongs to him. However, due to the pendency of matrimonial disputes between D1 and her husband, latter in collusion with is parents executed two nominal and sham gift deeds in favour of plaintiff obviously to extirpate the right of D1 and her children to reside in the suit property as a shared household. Therefore, the Trial Court ought not to have given credence to Exs. A2 and A3 gift deeds to hold that the plaintiff is the owner of the suit property and ought to have dismissed the suit in limini.

7B. Secondly, learned Counsel argued in vehemence that even if the suit property stands in the name of plaintiff by virtue of gift deeds, however, he cannot treat the same as his exclusive property because he obtained the same through gift deeds from his son i.e., husband of D1. Therefore, the property should be treated as a joint family property of plaintiff and his sons. In that view, D1 and her children will have right of residence as a shared household in the said property and they cannot be termed as trespassers under law. He further argued that as a matter of fact plaintiff and his wife never resided in the suit property and on the other hand, D1, her children and other defendants have been residing therein. Therefore, the question of D1 dispossessing the plaintiff and his wife from the suit property does not arise.

7C. Thirdly, he would argue, even assuming that the plaintiff was dispossessed from the suit property, he has to file a regular suit for declaration of his right, eviction of defendants and recovery of possession, but, he cannot file a summary suit under Section 6 of Specific Relief Act. To buttress his arguments, he placed reliance on Mohd. Ibrahim and others v. Smt. Munni @ Zainab Bee, MANU/AP/1040/2006 : 2007 (2) ALD 393 : 2007 (1) ALT 511. He, thus, prayed to allow the CRP and set aside the judgment.

8A. In oppugnation, learned Counsel for respondent Sri K. Chidambaram would argue that the suit property is the absolute property of the plaintiff inasmuch as he purchased the vacant site covered by Ex. A1 in the name of his son and thereafter, obtained loan from the bank and constructed the house. Since the property belongs to him, his son executed two gift deeds in favour of plaintiff. As such, the plaintiff is the full-fledged owner of the suit property. The plaintiff and his wife have been continuously residing in the plaint schedule property by paying municipal tax, electricity bills and water tax covered by Exs. A6 to A15 and A20 to A22. Therefore, he would argue, it is preposterous to contend that D1's husband is still the owner but not the plaintiff. He conversely argued that even assuming that D1's husband was the owner, by virtue of execution of gift deeds, the plaintiff became owner of suit property. If it is the case of defendants that the gift deeds are sham and nominal documents, it is for them to file an independent suit to establish the said fact.

8B. Nextly, regarding the possession of the plaintiff, learned Counsel argued that apart from the house tax receipts, electricity bills and water tax receipts, the oral evidence of PWs. 1 and 3 would demonstratively show the khas possession of plaintiff in respect of suit property. Except intermittent stay, D1 and her children never permanently resided in the suit house. On the other hand, when the relationship between D1 and her husband was cordial, she use to reside with him in different places like Bangalore, Gujarat, New Delhi, Qatar and Abu Dhabi. Therefore, the question of D1 residing in the suit property does not arise. Referring the cross-examination of DW1, learned Counsel would argue that in her cross-examination she clearly admitted that she came to the suit property on 10.5.2015 and after she entered the house, plaintiff and his wife left the house. He would, thus, emphasize that even according to her own admission, she entered the suit house only on 10.5.2015. He argued, her further version that on seeing her entering the house the plaintiff and his wife went away from the house is a concoction. Plaintiff and her husband were old and sickly people and except the suit house, there was no aboard for them to take shelter and in such circumstances, it would be highly improbable to believe that on her entering the house, they left the same. He argued that the obvious conclusion that can be drawn is that D1 entered the house alongwith other defendants on 10.5.2015 and high handedly necked out the hapless plaintiff and his wife from the suit property. Hence, plaintiff is entitled to recover possession by filing summary suit under Section 6 of Specific Relief Act. As he filed the suit within six months after his dispossession, the suit was legally sustainable.

8C. Castigating the contention of D1 of having right of residence in the suit property as a shared household, learned Counsel argued that under law, D1 can exercise such right to stay if the said house property belongs to her husband or if her husband obtained the house on lease and paying rents or that the house property is a joint family property wherein her husband is having a share. In such an instance, D1 being the wife of one of the members of the joint family can claim the right of residence. However, he would argue, in the instant case, the house property is the exclusive property of the plaintiff and hence, D1's husband cannot claim any right therein subsequent to the execution of gift deeds. As such, D1 also cannot claim the right of residence in the said property. This aspect was amply discussed and the contention of D1 was negatived by the Trial Court basing on the decision of Apex Court in S.R. Batra and others case (supra). He, thus, prayed to dismiss the CRP.

9. The point for consideration is whether the judgment of Trial Court is factually and legally sustainable?

Point:

10. The plaintiff filed the summary suit under Section 6 of Specific Relief Act. It is profitable to extract said section, which is thus:

"Section 6. Suit by person dispossessed of immovable property.'--(1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person [through whom he has been in possession or any person] claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.

(2) No suit under this section shall be brought--

(a) after the expiry of six months from the date of dispossession; or

(b) against the Government.

(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, not shall any review of any such order or decree be allowed.

(4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof."

11. A study of Section 6 gives us an understanding that the relief of recovery of possession to the plaintiff will be mainly based on the facts that (1) he was in possession of an immovable property from which he was dispossessed by some other; (2) the plaintiff filed the suit under Section 6 within six months from the date of his dispossession; (3) in a suit of this nature, plaintiffs possession rather than his title is a paramount consideration; (4) the defendant, who claims title has to establish the same in an independent action and seek for recovery of possession.

12. Thus, the object of Section 6 manifestly is to protect the possession of a person in respect of an immovable property and if the other person claims title in the said property, such disputed right shall be decided by due process of law and not otherwise and particularly, the person claiming the title shall not take law into his hands. This section is obviously based on public policy. The characteristic features of Section 6 were delineated in a slew of decisions.

(i) In Sanjay Kumar Pandey and others v. Gulbahar Sheikh and others, 2004 (3) ALD 38 (SC) , the Hon'ble Apex Court observed thus:

"A suit under Section 6 of the Act is often called a summary suit inasmuch as the enquiry in the suit under Section 6 is confined to finding out the possession and dispossession within a period of six months from the date of the institution of the suit ignoring the question of title. Sub-section (3) of Section 6 provides that no appeal shall lie from any order or decree passed in any suit instituted under this section. No review of any such order or decree is permitted. The remedy of a person unsuccessful in a suit under Section 6 of the Act is to file a regular suit establishing his title to the suit property and in the event of his succeeding he will be entitled to recover possession of the property notwithstanding the adverse decision under Section 6 of the Act. Thus, as against a decision under Section 6 of the Act, the revision is available but that is only by way of an exception; for the High Court would not interfere with a decree or order under Section 6 of the Act except on a case for interference being made out within the well settled parameters of the exercise of revisional jurisdiction under Section 115 of the Code."

(ii) In Kanakadhara Constructions v. K. Jhansi Lakshmi Bai and others, MANU/AP/0710/2005 : 2005 (6) ALD 805, this Court observed thus:

"In the suit of this nature, the question of title is not germane. Section 6 of the Act envisages a suit for possession on the premise of dispossession of the plaintiff without his consent of immovable property otherwise than in due course of law. When the suit is filed under Section 6 of the Act for possession, the sole consideration for the Court is possession. The scope of enquiry is thus limited to possession within six months immediately preceding the date of filing of the suit. In such a suit, the defendant cannot set up a defence of title in himself. The only defence that can legitimately be set-up is antecedent possession. It is obvious from sub-section (1) of Section 6 of the Act itself, which says that the person dispossessed can recover possession notwithstanding any other title that may be set-up in such suit. Thus, the scope of enquiry is limited to the question of possession."

(iii) In Mohd. Ibrahim and others v. Munni (supra), this Court observed thus:

"As rightly contended by the learned Counsel for the revision petitioners the only point for consideration in this revision would be whether the respondent was in possession of the property and if she was forcibly dispossessed from the property within six months prior to the date of filing of the suit."

(iv) In Katta Penchalaswamy and others v. Mopuru Veera Raghava Reddy, MANU/AP/0144/2014 : 2014 (5) ALD 393, similar view was expressed by this Court.

13. In the light of above jurimetrics, it has to be seen whether plaintiff in the instant case was in possession of the suit property and he was dispossessed from the same on 10.5.2015 and whether he filed the suit within six months thereafter. It is needless to emphasize that the title of either parties is only academic in the instant suit though may be prominent in a suit based on title filed by either party.

14. Plaintiff was examined as PW1. He deposed in tune with the plaint averments and stated that he purchased the vacant site under Ex. A1 in the name of his son. Since he was retired and it was difficult to get loan in his name, hence, the loan was obtained in his name and in the name of his son. Plaintiffs claim is that he paid the loan instalments out of his own money. His case is that inasmuch as the suit property belongs to him, his son executed two gift deeds under Exs. A2 and A3 in his favour and thereby, the plaintiff became the absolute owner of the suit property. This is the evidence of plaintiff with regard to the origin of the suit property. It must be noted that plaintiffs son Maddimsetti Vasudeva Nrusimha Satyanarayana is not a party to the suit but his wife i.e., D1 is the party. Be that it may, D1 also did not dispute about the factum of execution of the gift deeds. Her case is that the suit property belongs to her husband and in view of the matrimonial disputes between herself and her husband, he colluded with his parents and executed sham and nominal gift deeds in favour of plaintiff obviously to smother her right of residence in the suit property. So from the pleadings and evidence, it is clear that plaintiffs son executed two gift deeds in favour of plaintiff in respect of the suit property and though D1 claims the same as sham transaction, she has not so far filed any independent suit questioning the validity of the gift deeds. It is already discussed supra that in a suit of this nature filed under Section 6 of Specific Relief Act, title of the parties is rot germane for consideration except possession. In that view, for the sake of this suit, the contentions of defendant with regard to the validity of the gift deeds cannot be taken into consideration. On the other hand, having regard to the fact that Exs. A2 and A3 are registered gift deeds, the title of the plaintiff for the sake of this suit can be accepted though the same is the subject-matter in a comprehensive suit based on title.

15. The next crucial aspect for consideration is whether the plaintiff was in possession of the suit property and he was dispossessed by D1 to D3 on the evening of 10.5.2015.

15A. A perusal of Exs. A4, A6 to A15 and A20 to A22 would show that plaintiff has been paying the house tax, electricity bills and water tax to the authorities in respect of the suit property which implies that he has been in occupation of the suit property. Apart from the documentary evidence, the oral, evidence of PWs. 1 and 3 would also confirm the same. Though D1 contended that the plaintiff was never in possession but she has been in possession of the suit property, the same is not borne out by any record except her parole evidence. So far as dispossession is concerned, the evidence of PWs. 1 and 3 is pertinent in that regard. PW1 stated that due to the matrimonial disputes, D1 has been residing in her parent's house at Akiveedu, whereas his son is working at Abu Dhabi. The plaintiff and his wife who are sickly persons have been residing in the suit house. He further stated that while so, D1 on the ill-advise of D2 and D3, taking advantage of plaintiff's old age and sickness highhandedly trespassed into the plaint schedule property and dispossessed him and his wife on 10.5.2015 between 6.30 p.m. and 07.00 p.m. and when questioned, they threatened to kill him and his wife. He further stated that PW3 and Katni Suryavathi, who are neighbours tried to intervene and admonished the defendants but the defendants did not heed. He stated that he gave report to C.I. of Police, HI Town Police Station, Rajahmundry, under Ex. A5.

15B. PW3, who is the distant relation of plaintiff, supported the version of plaintiff arid stated that on 10.5.2015, he visited the plaintiff at about 07.00 p.m., the defendants came there and threatened the plaintiff and his wife and dispossessed them from suit property. He stated that though himself and Katni Suryavathi tried to interfere and admonish them, they did not listen to them. This is the evidence relating to the act of dispossession. Though these witnesses were cross-examined at length, but nothing specific could be extracted to impeach their credibility. PW3 denied the suggestion that plaintiff, his son and this witness colluded together and filed the present suit to vacate the first defendant from the suit property. Thus, the evidence of PW1 gets strength from the deposition of an independent witness with regard to dispossession. Apart from it, in Ex. A1-FTR No. 196 of 2015, plaintiff clearly stated that on 10.5.2015, all the three defendants came to their house in the night at about 06.30 or 07.00 p.m. and trespassed into their house and necked out him and his wife. So the factum of dispossession of the plaintiff at the instance of the defendants can be believed. As rightly submitted by the learned Counsel for respondent, DW1 in her cross-examination stated that she came to the suit property on 10.5.2015 and on seeing her, the plaintiff and his wife left the house. This statement would show that she was not residing in the house previously and she came to the suit house on 10.5.2015. Her claim that on seeing her, the plaintiff and his wife left the house cannot be believed in view of other circumstances. The plaintiff and his wife are aged persons and the record shows that they have been in possession of the suit house and therefore, it is highly unbelievable that seeing the defendants, they would leave the house. So the evidence on record clearly establishes the fact that the defendants have highhandedly dispossessed plaintiff and his wife. The suit was filed on 2.11.2015 seeking recovery of possession and it is clear that the suit was filed within six months from the date of dispossession and the ingredients of Section 6 are complied with.

15C. The contention of D1 that she has a right of residence in the suit property is untenable in view of the judgment of Hon'ble Apex Court in S.R. Batra and others v. Taruna Batra (supra). In the above decision, in the context of the claim of a wife for the shared house hold, the Apex Court, in the light of provisions under Protection of Women from Domestic Violence Act, 2005, has observed thus:

"As regards Section 17(1) of the Act, in our opinion the wife is only entitled to claim a right to residence in a shared household, and a 'shared household' would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. The property in question in the present case neither belongs to Amit Batra nor was it taken on rent by him nor is it a joint family property of which the husband Amit Batra is a member, it is the exclusive property of appellant No. 2, mother of Amit Batra. Hence it cannot be called a 'shared household'."
15D. In the instant case also, by virtue of the two gift deeds, the suit property cannot be treated as the property of the husband of D1 to claim right of residence. Of course, this Court is no oblivious of the contention of D1 that the two gift deeds are sham and nominal ones. However, such a contention is not available to her in the present suit and in order to establish the said fact, she can file an independent suit. So at the outset, on the conspectus of the facts and evidence on record, I do not find any illegality or irregularity in the judgment of the Trial Court. This CRP is devoid of any merits. Accordingly, this CRP is dismissed by confirming the judgment of the Trial Court in OS No. 208 of 2015 passed by learned V Additional District Judge, Rajamahendravaram. No order as to costs.

16. Miscellaneous petitions, if any pending, shall stand closed in consequence. No order as to costs.


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