Sanjay vs Varghese Kuruvilla @ Sunny ...
2021 Latest Caselaw 17119 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
               THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
FRIDAY, THE 13TH DAY OF AUGUST 2021 / 22ND SRAVANA, 1943
                          RSA NO.344 OF 2021

Against the judgment and decree dated 17.12.2020 in A.S.No.114/2019 of
the seventh Additional District Court, Ernakulam arising from the judgment
  and decree dated 31.10.2018 in O.S.No.677/2017 of Principal Munsiff's
                              Court, Ernakulam
APPELLANTS/APPELLANTS/DEFENDANTS:

    1          SANJAY,
               AGED 31 YEARS,
               S/O.VARGHESE KURUVILLA,
               2B, ROYAL CORONET, KARACKAMURI CROSS ROAD,
               ERNAKULAM SOUTH, KOCHI-682 018.
    2          KARISHMA KHURANA,
               AGED 31 YEARS,
               W/O.SANJAY VARGHESE,
               2B, ROYAL CORONET, KARACKAMURI CROSS ROAD,
               ERNAKULAM SOUTH, KOCHI-682 018.

                      BY ADVS.
                           SRI.S.SREEKUMAR (SR.)
                           SRI.BASIL MATHEW

RESPONDENT/RESPONDENT/PLAINTIFF:

               VARGHESE KURUVILLA @ SUNNY KURUVILLA,
               AGED 63 YEARS, S/O.KURUVILLA,
               2B, ROYAL CORONET, KARACKAMURI CROSS ROAD,
               ERNAKULAM SOUTH, KOCHI-682 018.
                   BY ADVS.
                       SRI.K.M.MADHU
                       SMT.VISHNUJA AJAYAN
        THIS    REGULAR   SECOND    APPEAL     HAVING    COME    UP    FOR
ADMISSION        ON   10.08.2021,     THE    COURT      ON   13.08.2021
DELIVERED THE FOLLOWING:
 R.S.A.No.344 of 2021


                                    ..2..




                             JUDGMENT

This Regular Second Appeal is directed against the

judgment and decree dated 17.12.2020 in

A.S.No.114/2019 of the seventh Additional District Court,

Ernakulam confirming the judgment and decree dated

31.10.2018 in O.S.No.677/2017 of the Principal Munsiff's

Court, Ernakulam. The appellants are the defendants and

respondent is the plaintiff before the trial court. For the

sake of convenience and clarity, the parties are hereinafter

referred to as 'the plaintiff' and 'the defendant' unless

otherwise stated.

2. The suit was filed for mandatory injunction

directing the defendants to vacate the residential

apartment situated in the plaint schedule property and for

payment of rent and damages. The 1st defendant is the

son of the plaintiff and the 2 nd defendant is the wife of the

1st defendant.

R.S.A.No.344 of 2021

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3. The plaintiff is the owner of the plaint schedule

property which is an apartment. It is alleged that on

18.4.2017 the defendants came to the plaint schedule

property, forcefully entered into and are staying therein

without the consent of the plaintiff. The plaintiff demanded

them to vacate the building but they have not done so far.

The defendants have no legal right to continue in the

residence in the plaint schedule property and they are

bound to vacate the same.

4. The 1st and 2nd defendants filed joint written

statement contending that they got married on 17.1.2017

and their marriage was registered on 11.5.2017 under the

provisions of the Special Marriage Act. The plaintiff

married the mother of the 1st defendant in the year 1988

and at the time of marriage 100 sovereigns of gold

ornaments and a sum of Rupees one lakh was entrusted

with the plaintiff. The 1st defendant and his sister were R.S.A.No.344 of 2021

..4..

born in the wedlock. In the year 2007, the plaintiff

informed his intention to purchase two apartments and he

made the mother of the 1st defendant to believe that one

of the apartments would be registered in her name.

Therefore, she consented to pledge her gold ornaments

for raising funds. However, the plaintiff disposed of the

gold ornaments and purchased both the apartments in his

name. Thereafter, the entire family consisting of the

plaintiff, his wife, their children, 1st defendant and his

sister are residing in the plaint schedule property. The

plaintiff has illicit relationship with his staff members.

When it was questioned, he manhandled all the family

members and shifted his residence to Apartment No.2A

which is situated on the opposite to the plaint schedule

property.

5. During the trial of the case, PW1 was examined

and marked Exts.A1 to A8 on the plaintiff's side. The 1 st R.S.A.No.344 of 2021

..5..

defendant was examined as DW1 and marked Exts.B1 to

B6. The trial court decreed the suit in part directing the

defendants 1 and 2 to vacate the plaint schedule

apartment within one month from 31.10.2018. The

defendants preferred an appeal. The appeal was dismissed

confirming the judgment of the trial court. Hence the

regular second appeal.

6. Heard Sri.S.Sreekumar, the learned Senior

Counsel for the appellants and Sri.K.M.Madhu, the learned

counsel for the respondent.

7. When the case came up for admission, after

having heard at length, this Court directed the parties to

settle the dispute by mediation. However, the matter was

not settled.

8. The primary contention of the learned Senior

Counsel for the appellants is that the suit property does

not belong exclusively to the plaintiff. According to him, R.S.A.No.344 of 2021

..6..

the property was purchased utilizing the funds of the

plaintiff's wife who is none other than the mother of the

1st defendant. It is an admitted fact that the plaintiff is the

owner of the disputed apartment. He is residing therein at

present. Both the trial court and the first appellate court

concurrently held that the plaintiff is the owner of the

plaint schedule apartment. The defendants have no right

to interfere with the right of the plaintiff over the plaint

schedule property. They have no right to contend that the

plaintiff is obliged to live along with them in the plaint

schedule apartment. The plaintiff is a senior citizen. The

Maintenance and Welfare of Parents and Senior Citizens

Act, 2007 provides for more effective provision for the

maintenance and welfare of parents and senior citizens

guaranteed and recognized under the Constitution. The

Act clearly reveals that aging has become a major social

challenge and there is need to give more attention to the R.S.A.No.344 of 2021

..7..

care and protection for the older persons. The 1 st

defendant is an expert in computer programs. He married

the 2nd defendant hailing from Punjab. He has been

conducting tourist taxi business in Mumbai. Merely

because the plaintiff has not been on good terms with his

wife for the reasons better known to them and that

marital disputes are pending between the parties, the

same will not give any right to the defendants to trespass

into the property purely owned by the plaintiff and reside

therein forcefully.

9. The learned Senior Counsel further submitted

that the plaintiff ill-treated the defendants and his wife.

There is no proof of any ill-treatment of the defendants by

the plaintiff. They have taken out various proceedings

including filing of criminal cases against the plaintiff.

However, the same remained unsubstantiated. R.S.A.No.344 of 2021

..8..

10. After all, father is a father. The 1st defendant is

the son of the plaintiff. No father is expected to initiate

civil suit against his own children out of vengeance or for

any malafide intention. The Maintenance and Welfare of

Parents and Senior Citizens Act, 2007 and the Rules

framed thereunder grant protection to the parents

including with respect to their property. The scope of this

Act is not to punish the children and therefore, once it is

established that the children have no right over the

property of the parents, the fact that the parents do not

wish to have their children staying with them is enough

for invoking the Act and the Rules. Instead of resorting

the provisions under the Act, the plaintiff filed a suit for

mandatory injunction directing the defendants to vacate

the premises, which was granted by the trial court. An

appeal was taken challenging the finding of the trial court.

The defendants were aware of the nature of the relief R.S.A.No.344 of 2021

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granted against them. Hence, there is no point in

contending that an issue regarding mandatory injunction

was omitted to be framed by the trial court.

Concurrent findings of facts rendered by the two

courts below would clearly show that the plaintiff being

the owner in possession of the plaint schedule property is

entitled to get mandatory injunction directing the

defendants to vacate the premises. In any case, nature of

possession of the defendants being that of a licensee and

there admittedly being a series of litigation between them,

the decree of mandatory injunction cannot be faulted. No

questions of law involved in this case much less

substantial questions of law. This Court, therefore, finds

no merit in this R.S.A. and the same is dismissed in

limine. There shall be no order as to costs.

Sd/-

N.ANIL KUMAR, JUDGE skj