MUHAMMAD ISMAYIL Vs. SAIBINISHA NELPURAKUNNI VEEDU

JUDGEMENT

(1.) This Original Petition is filed by respondents 3 and 4 in OP No. 688/2016 pending before the Family Court, Kottarakkara. The said OP was filed by the 1 st respondent herein seeking for a declaration of title and possession in respect of plaint A and B schedule properties and for injunction to restrain petitioners and respondents 2 and 3 from evicting the 1st respondent and her child from plaint C schedule property. The 1 st respondent also filed IA No.969/2016 for a temporary injunction to restrain the respondents from alienating or encumbering petition A and B schedule properties and from forcibly evicting her and her minor son from the petition C schedule house till the disposal of this OP.

(2.) The petitioners herein are the father and mother of 2 nd respondent, who is the husband of the 1 st respondent. Respondents 1 and 2 got married on 23/9/2001. They have a child in the said wedlock. The marital relationship got strained and according to the petitioners, she had gone to her parental house with the child. She thereafter filed MC No.49/2016 before the Judicial Magistrate of First Class, Punalur under Section 23 of the Protection of Women from Domestic Violence Act, 2005. The learned Magistrate held that she does not have any right over the alleged shared household. However, the 2 nd respondent/husband was directed to provide her Rs.5,000/- per month for alternate accommodation. It is contended that in order to overcome the order passed by the learned Magistrate, the above OP was filed claiming right over the C Schedule property, being shared household. Ext.P1 is the impugned order in which the Family Court observed that in so far as the right in respect of the C schedule property is to be decided after considering the evidence, she and her son should not be evicted from the said building till disposal of the Original Petition.

(3.) Learned counsel for the petitioners submits that in so far as C schedule building is concerned, there is already a finding by the learned Magistrate in terms of Ext.P2 order that it is not a shared household and therefore, she is not entitled for any order to permit her to reside in the said house. However, direction had been issued to the 2 nd respondent herein to provide alternate accommodation to the first respondent and her minor child or else to pay Rs.5,000/- per month. It is therefore contended that she has no right in respect of C schedule building. She of course has taken a contention that the building was constructed with the money provided by her and her brother for which there is no material. According to the petitioners, she has no right in respect of the said building other than contending that she is residing in the said building. It is argued that, when the 1 st respondent has no semblance of right in respect of C schedule property, she cannot seek for any injunction as sought for. Her allegation that she is in possession of the property is also incorrect since she had trespassed into the said property. The learned counsel argued that she has no legal possession and her residence in the said house is only unlawful. He also placed reliance upon the judgment in Mammunhi Alias Mahammad Beery v. Kunhibi, 1960 KerLT 1343. In the above case, the issue was whether claim for recovery of possession of a building could be granted on the ground that the house in the property was constructed by the defendant with his own funds. The Trial Court held that defendant is entitled to compensation alone whereas the appellate court took the view that the defendant's right is only to dismantle the house and take away the materials. While considering the said appeal, the Division Bench observed that what is fixed to the soil belongs to the soil is not a maxim of general jurisprudence as per the judgment of the Privy Council reported in Vallabdaas Narinji v. Development Officer, Bandra, 1929 AIR(PC) 163. The said maxim does not represent the law in India. It was held that the plaintiff will have to pay the value of the building to the defendant.