Smt. Krishna Bhdadoria vs Smt. Geeta Bhadouria
2022 Latest Caselaw 135 MP

                                    1
         THE HIGH COURT OF MADHYA PRADESH
                       F.A.No.239/2014
  (Smt. Krishna Bhadoria Vs. Smt. Geeta Bhadoria and another )

Gwalior, Dated:-4.1.2022
      Shri Ankur Mody, learned counsel for the appellant.

      Shri Prakash Chandra Chandil, learned counsel for the

respondents no.1 and 2.

(1) This appeal under section 96 of the CPC has been filed by

the appellant (defendant no.2) being aggrieved of the judgment and

decree dated 30.10.2013 passed by the Court of II Additional

District Judge, District Morena in Civil Suit No.17A/2008 titled as

Smt. Geeta Bhadoria Vs. Jitendra Singh Sikarwar and Smt. Usha

Bhadoria whereby, the suit has been decreed for possession against

the appellant (defendant no.2).

(2) On perusal of the pleadings, relevant factual matrix of the

case is that the respondent/plaintiff herein purchased the suit

property vide registered sale deed dated 27.2.2008 from its owner

namely Sujan Singh, Shailendra Singh and Surendra Singh sons of

Tej Singh. Shailendra Singh is the husband of the present appellant

(defendant no.2). After purchase of the property the present

respondent no.1/plaintiff initially filed a civil suit against the present

appellant and proforma respondent no.2 for eviction under the M.P.

Accommodation Control Act, 1961 on the basis of the default and

sub-letting. The appellant in her written statement denied the

landlord tenant relationship whereupon the plaintiff amended the

THE HIGH COURT OF MADHYA PRADESH F.A.No.239/2014 (Smt. Krishna Bhadoria Vs. Smt. Geeta Bhadoria and another )

plaint to the effect that she is entitled for possession on the basis of

title and ownership also. The present appellant/defendant no.2

came out with the assertion that on the basis of the partition deed,

executed on 16.7.2003, between the family members of the

appellant she has become the owner of the property and thus her

husband and other family members have no right to alienate the suit

property to the plaintiff. The partition has been admitted by the

husband in an affidavit filed by him in a civil suit under section 9

of the Hindu Marriage Act presented by the appellant. Thus, the sale

deed executed in favour of the plaintiff is null and void. It was

further contended by the appellant that after filing of the written

statement the amendment application of the plaintiff was allowed,

changing the nature of the suit, which was not permissible under

law.

(3) During trial compromise has been arrived at between the

plaintiff and the defendant no.1.

(4) As many as 13 issues were framed by the Trial Court and after

recording of the evidence of both the sides the Trial Court vide

judgment and decree dated 30.10.2013 came to the conclusion that

the ground of eviction under the M.P. Accommodation Control Act,

1961 have not been proved, however, the suit was decreed for

possession on the basis of title and ownership of the plaintiff.

THE HIGH COURT OF MADHYA PRADESH F.A.No.239/2014 (Smt. Krishna Bhadoria Vs. Smt. Geeta Bhadoria and another )

(5) Being aggrieved of the judgment and decree of the Trial

Court, this appeal has been filed by the defendant no.2.

(6) Heard learned counsel appearing for both the sides and

perused the material made available on record.

(7) Shri Ankur Mody, learned counsel for the appellant has

submitted that appellant, being the legally wedded wife of one of

the owners of the suit property, is residing in the same. Consequent

upon the matrimonial dispute, only with an object to deprive the

appellant from her legitimate rights to reside in the shared

household property the sale deed in question has been executed in

collusion with the plaintiff purchaser of the property. The plaintiff

is entitled to reside in the shared household property of the husband

and the family members as a matter of right and she cannot be

evicted as per provisions of section 17 of the Domestic Violence

Act, 2005. The husband of the plaintiff and other family members

were not entitled to alienate the shared household property without

making suitable arrangement for residence to the plaintiff. In the

wake of matrimonial dispute various litigation were/are pending

before the execution of the sale deed in question, which clearly

indicate that the sale deed in question has been ostensibly executed

only to frustrate the rights of the appellant. The Trial Court was

obliged to lift the veil to find out the genuineness of the sale deed

THE HIGH COURT OF MADHYA PRADESH F.A.No.239/2014 (Smt. Krishna Bhadoria Vs. Smt. Geeta Bhadoria and another )

in question, but it has failed to appreciate the matter in accordance

with the fact situation and law. The suit has been wrongly decreed,

hence, the impugned judgment/decree deserves to be quashed and

set aside.

(8) Learned counsel for the appellant, in the alternative, has

further submitted that the appellant has already filed appropriate

application before the competent court under the Domestic Violence

Act, 2005 against her husband for providing her suitable residential

accommodation, but till date she has not succeeded in procuring

the same. Therefore, in case, the appeal is dismissed, the appellant

should be allowed to reside in the suit property till she gets

alternative accommodation under the Domestic Violence Act in the

proceedings pending under the Domestic Violence Act.

(9) Learned counsel for the appellant has placed reliance on the

following judgments:

(1) Radha Vs. Deputy Tahsildar (RR) Mukundapuram and others in WP (C) No.26559 of 2008 (J) vide judgment dated 5.1.2015;

(2) Eveneet Singh Vs. Prashant Chaudhri and others, 177 (2011) DLT 124;

(3) S. Vanitha Vs. The Deputy Commissioner, Bengaluru Urban District and others, AIR 2021 SC 177.

(10) Learned counsel for the respondent/plaintiff has submitted

THE HIGH COURT OF MADHYA PRADESH F.A.No.239/2014 (Smt. Krishna Bhadoria Vs. Smt. Geeta Bhadoria and another )

that the plaintiff has purchased the suit property through registered

sale deed. Initially he filed a civil suit for eviction as per fact

situation of the possession of the original tenant and the appellant.

When the appellant denied the landlord tenant relationship, the

plaintiff had to amend the plaint seeking possession on the ground

of title and ownership. He has paid a court fees to the tune of

around Rs.1,00,000/-. The plaintiff is bonafide purchaser of the

property. She is not related to the family members of the appellant

in any manner. No ground or basis exists on record which can

suggest that the sale deed in question has been executed in a

collusive manner. Being rightful owner of the property the plaintiff

has got every right to take possession of the property from the

appellant as she has got no legal right to remain in possession of the

suit property. The contention of the appellant based on the

provisions of the Domestic Violence Act, 2005 is not tenable at all

because the protection under section 17 of the Domestic Violence

Act, 2005 is available against the family members of the victim

woman of domestic violence and indisputably the plaintiff is not

the family member or relative of the appellant. Further as per

section 17 (2) of the Domestic Violence Act, 2005 a victim woman

of domestic violence can be evicted by adopting procedure

established procedure of law. Here also the plaintiff purchaser has

THE HIGH COURT OF MADHYA PRADESH F.A.No.239/2014 (Smt. Krishna Bhadoria Vs. Smt. Geeta Bhadoria and another )

adopted the due procedure established by law by filing the present

suit. The appeal deserves to be dismissed.

(11) In response to the alternative prayer of the learned counsel of

the appellant, it has been submitted by the learned counsel of the

respondent that the respondent/plaintiff purchased the suit property

way back in the year 2008 by paying a huge amount to the owners

of the property still he is deprived of the same and the appellant is

enjoying the property without any legal right. Initially the proposal

was made to give some time to vacate the property, but subsequently

she resiled. The appellant can claim any right whatsoever from her

husband, but the plaintiff who is bonafide purchaser cannot be made

suffer on account of proceedings stated to have lodged by the

appellant under the Domestic Violence Act. He has placed reliance

on the judgment passed in the case of Satish Chander Ahuja Vs.

Sneha Ahuja, AIR 2020 SC 5397.

(12) Heard. Considered.

(13) As mentioned above, learned counsel for the appellant has

assailed the impugned judgment and decree on the basis of rights

available to the appellant under the Domestic Violence Act, 2005,

but no such ground has been taken either in the written statement

filed by the appellant or even in the memo of appeal. In such a

situation, the ground first time raised at the time of appeal is not

THE HIGH COURT OF MADHYA PRADESH F.A.No.239/2014 (Smt. Krishna Bhadoria Vs. Smt. Geeta Bhadoria and another )

considerable. However, since learned counsel for both the sides

have addressed the court on this issue the same is being dealt with

hereinunder.

(14) The similar issue was considered by the Hon'ble Supreme

Court in the case of Satish Chander Ahuja (supra) and it was

held as under:

"116. Drawing the analogy from the above case, we are of the opinion that the expression "save in accordance with the procedure established by law", in Section 17 (2) of the Act, 2005 contemplates the proceedings in court of competent jurisdiction. Thus, suit for mandatory and permanent injunction/eviction or possession by the owner of the property is maintainable before a Competent Court. We may further notice that in Sub-section (2) the injunction is "shall not be evicted or excluded from the shared household save in accordance with procedure established by law". Thus, the provision itself contemplates adopting of any procedure established by law by the Respondent for eviction or exclusion of the aggrieved person from the shared household. Thus, in appropriate case, the competent court can decide the claim in a properly instituted suit by the owner as to whether the women need to be excluded or evicted from the shared household.

One most common example for eviction and exclusion may be when the aggrieved person is provided same level of alternate accommodation or payment of rent as contemplated by Section 19 Sub-section (f) itself. There may be cases where Plaintiff can successfully prove before the Competent Court that the claim of plaintiff for eviction of respondent is accepted. We need not ponder for cases and circumstances where eviction or exclusion can be allowed or refused. It depends on facts of each case for which no further

THE HIGH COURT OF MADHYA PRADESH F.A.No.239/2014 (Smt. Krishna Bhadoria Vs. Smt. Geeta Bhadoria and another )

discussion is necessary in the facts of the present case. The High Court in the impugned judgment has also expressed opinion that suit filed by the plaintiff cannot be held to be non-maintainable with which conclusion we are in agreement.

117. In case, the shared household of a woman is a tenanted/allotted/licensed accommodation where tenancy/ allotment/license is in the name of husband, father-in- law or any other relative, the Act, 2005 does not operate against the landlord/lessor/licensor in initiating an appropriate proceedings for eviction of the tenant/allottee/licensee qua the shared household. However, in case the proceedings are due to any collusion between the two, the woman, who is living in the shared household has right to resist the proceedings on all grounds which the tenant/lessee/licensee could have taken in the proceedings. The embargo under Section 17 (2) of Act, 2005 of not to be evicted or excluded save in accordance with the procedure established by law operates only against the "Respondent", i.e., one who is Respondent within the meaning of Section 2(q) of Act, 2005."

(15) Thus, as per above mentioned legal position the protection

against eviction or dispossession to a woman under section 17 of the

Domestic Violence, 2005 Act is not absolute or unqualified. A

woman can be evicted from the shared household in accordance

with the procedure established by law. Further the embargo

contained in section 17 (2) of the Act of 2005 operates only

against the person who is respondent within the meaning of section

2 (q) of the Act of 2005.

(16) In this case, the plaintiff has purchased the suit property by

THE HIGH COURT OF MADHYA PRADESH F.A.No.239/2014 (Smt. Krishna Bhadoria Vs. Smt. Geeta Bhadoria and another )

way of registered sale deed. Thus, she has become the owner of the

property. She has purchased whole building from all the owners

including the husband of the present appellant. It is not so that the

plaintiff has purchased the specific portion of the building from the

husband of the appellant, wherein she is residing, therefore, it

cannot be said that the plaintiff has purchased the property only to

frustrate the rights of the appellant. After purchase of the property,

the plaintiff had filed a civil suit for eviction/possession by adopting

the procedure established by law as envisaged in section 17 of the

Act of 2005.

(17) The plaintiff is not a family member of the appellant.

Nothing has been placed on record which may indicate that the

plaintiff is somehow related with the husband of the appellant,

therefore, she cannot be said to be the respondent under section 2(q)

of the Domestic Violence Act, 2005.

(18) In view of above, the ground taken by the appellant at

appellate stage on the basis of rights available to her under section

17 of the Domestic Violence Act, 2005 is not tenable at all.

(19) In the judgments cited on behalf of the appellant, the victim of

woman of domestic violence was given relief against eviction in the

peculiar circumstances of given case where the eviction of the

woman victim of domestic violence was sought in the summary

THE HIGH COURT OF MADHYA PRADESH F.A.No.239/2014 (Smt. Krishna Bhadoria Vs. Smt. Geeta Bhadoria and another )

proceedings like realization of taxes or under the Senior Citizen Act

or between the family members of the victim woman, but in this

case, as discussed above, the eviction of the appellant woman herein

has not been sought in any summary proceedings. The plaintiff after

purchase of the suit property has filed a civil suit for eviction and

after adopting due procedure established by law has obtained the

decree of possession against the appellant. Further, the plaintiff is

not related in any manner to the appellant or her family members

and does not come in the purview of the respondent under the Act

of 2005. Being quite distinguishable to this case, the above cited

judgments do not help the plaintiff particularly, in view of legal

position as expounded by Hon'ble Supreme Court in the case of

Satish Chandra Ahuja (supra).

(20) The appellant in her memo of appeal has assailed the

impugned order on the ground that she has become the owner of the

suit property on the basis of the partition deed executed between the

family members. Accordingly, the sale deed in question has been

executed without any right or title, and therefore, the same is null

and void.

(21) Learned Trial Court has critically analyzed the above

contention of the appellant in detail and has rightly concluded that

neither the alleged partition deed was produced nor the fact of

THE HIGH COURT OF MADHYA PRADESH F.A.No.239/2014 (Smt. Krishna Bhadoria Vs. Smt. Geeta Bhadoria and another )

partition was proved by the plaintiff. Further since the suit property

belongs to the husband of appellant and his brothers and mother-in-

law, who have jointly sold the property to the plaintiff. Only

because the appellant is the wife of one of the owners, she has not

become the co-sharer of the property in the life time of her

husband. In such a situation, for the sake of arguments, even if the

execution of so called partition is accepted, the appellant cannot

claim the ownership or rights over the joint property on the basis of

alleged partition.

(22) Learned counsel for the appellant has also contended that

after filing the suit for eviction, amendment in the plaint for taking

possession on the basis of title, should not have been allowed, but

admittedly the appellant has not challenged the order of amendment

before the competent court of law. Further, when the appellant

denied the relationship of landlord and tenant, the plaintiff without

any loss of time, sought amendment in the plaint seeking alternative

prayer for possession on the basis of title. He paid the court fees to

the tune of around Rs.1,00,000/-. Proper opportunity of hearing has

been afforded to the appellant. No prejudice has been caused to

either party by this amendment. Therefore, at this belated stage,

such technical objection cannot be entertained to frustrate the cause

of justice.

THE HIGH COURT OF MADHYA PRADESH F.A.No.239/2014 (Smt. Krishna Bhadoria Vs. Smt. Geeta Bhadoria and another )

(23) In view of the above, this Court does not find any illegality or

perversity in the impugned judgment, wherein on the basis of oral

and documentary evidence the plaintiff has been held entitled for

possession of the suit property on the basis of her title and

ownership and the appellant has got no right whatsoever to remain

in possession of the same. Therefore, the appeal sans merit and

deserves to be dismissed.

(24) With regard to the alternative prayer made on behalf of the

appellant for giving her some time to handover the possession of

the property, suffice it to say that it is open for her to pursue the

proceedings under the Domestic Violence Act, 2005 against her

husband, but not at the costs of plaintiff, who has purchased the

property way back in the year 2008 and still she is out of possession

and the appellant is enjoying the property without any legal right

whichsoever. Thus, the alternative prayer is not acceptable and is

accordingly declined.

(25) In view of the above discussion and the reasons stated, the

present appeal sans merits and is therefore dismissed. The

impugned judgment/decree is affirmed. No order as to costs.

(Satish Kumar Sharma) Judge Pawar/-

ASHISH PAWAR 2022.01.10 14:32:07 +05'30'