# Smt. Richa Gaur /Defendant v. Kamal Kishore Gaur Plaintiff/

- **Citation:** (2019) 4 ILRA 15
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-24
- **Case number:** First Appeal No. 704 of 2019
- **Bench:** Vivek Kumar Birla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-richa-gaur-defendant-v-kamal-kishore-gaur-plaintiff-44925
- **Pages:** 6

## Headnote

16 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Kapil Tyagi, Sri Samarth Sinha, Sri
Vijay Sinha

A. Property Law - Mandatory Injunction -
Matrimonial Home - Right of daughterin-law to reside in the house of her
father-in-law - Status of the daughterin-law was a mere licensee and had no
right to reside in the house in question
after cancellation of the licence by the
original owner i.e. her father -in-law

Suit
for
mandatory
injunction
filed
by
plaintiff/respondent against appellant who is
daughter-in-law of
the
plaintiff
- After
marriage appellant started living with her
husband,
son
of
the
plaintiff,
but
subsequently, matrimonial disputes arose -
Plaintiff divested his son and daughter-inlaw
from his property - husband of the appellant
left the house and started living elsewhere -
Held - Status of daughter-in-law merely of a
licensee, whose license stood terminated by
the original owner i.e. the plaintiff - As such
daughter-in-law has no right to reside in the
house in question after cancellation of the
license by the original owner i.e. the plaintiff
herein. (Para 15)

First Appeal dismissed. (E-5)

List of cases cited: -

## Text

4 All. Smt. Richa Gaur Vs. Kamal Kishore Gaur
15
 interest whatsoever for himself in such
property irrespective of his long stay or
possession."

21. The law has thus been settled,
that the lawful process of eviction of an
unauthorized occupant by a true owner,
essentially means grant of an opportunity
to the parties to tender their defence, and
its adjudication by a court of law. Once,
the courts of law have found that the
occupant is a trespasser, or a person in
unauthorized occupation, against the
claim
of
the
lawful
owner;
such
unauthorized occupant does not have any
further right to possession over disputed
premises. The said unauthorized occupant
has to vacate the premises voluntarily,
after the adjudication is entered by the
courts. Upon failure to do so, the said
person is liable to be evicted by execution
of the judgement and decree, holding the
former
to
be
an
unauthorized
occupant/trespasser.

22. In such cases, the findings of
illegal occupation by an unauthorized
occupant, against the claim of a true
owner, rendered by the court, operate as
the lawful basis for eviction of such
illegal
occupant
through
execution
proceedings. No fresh suit for any further
adjudication is necessary.

23. This Court in a Second Appeal
No. 621 of 2016, Ashfaq Ali Vs. Smt.
Tahira and 2 Others, held thus:

"53. A judgment by a court,
holding a person to be an unauthorized
occupant against the claim of a true
owner fully constitutes the lawful basis of
eviction of the unauthorized occupant.
This determination is conclusive for
securing the eviction of an unauthorized
occupant.
In
the face
of the
said
adjudication, it does not matter who brought
the suit. No further judicial enquiry or
adjudication by the courts is required for
eviction of the unauthorized occupant."

24. The instant appeal is squarely
covered with the law settled in the
authorities referenced in the preceding
paragraphs. No substantial questions of
law as such arise in the instant second
appeal.

25. Further, learned counsel for the
appellant could not point out any
substantial question of law which arises in
this appeal. The questions of law stated in
the memo of appeal are all issues of fact,
and do not pose any substantial question
of law for determination.

26. In light of the preceding
narrative, the Second Appeal is liable to
be dismissed and stands, accordingly,
dismissed.
----------

(2019)12 ILR A15

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.10.2019

BEFORE
THE HON'BLE VIVEK KUMAR BIRLA, J.

First Appeal No. 704 of 2019

Smt. Richa Gaur ...Appellant/Defendant
Versus
Kamal Kishore Gaur
 ...Plaintiff/Respondent

Counsel for the Appellant:
Sri Shyam Shanker Pandey

Counsel for the Respondent:
16 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Kapil Tyagi, Sri Samarth Sinha, Sri
Vijay Sinha

A. Property Law - Mandatory Injunction -
Matrimonial Home - Right of daughterin-law to reside in the house of her
father-in-law - Status of the daughterin-law was a mere licensee and had no
right to reside in the house in question
after cancellation of the licence by the
original owner i.e. her father -in-law

Suit
for
mandatory
injunction
filed
by
plaintiff/respondent against appellant who is
daughter-in-law of
the
plaintiff
- After
marriage appellant started living with her
husband,
son
of
the
plaintiff,
but
subsequently, matrimonial disputes arose -
Plaintiff divested his son and daughter-inlaw
from his property - husband of the appellant
left the house and started living elsewhere -
Held - Status of daughter-in-law merely of a
licensee, whose license stood terminated by
the original owner i.e. the plaintiff - As such
daughter-in-law has no right to reside in the
house in question after cancellation of the
license by the original owner i.e. the plaintiff
herein. (Para 15)

First Appeal dismissed. (E-5)

List of cases cited: -

1. Smt. Sunita Vs Smt. Brahmwati And
Another First Appeal No. 76 of 2014

2. S.R. Batra and another Vs Taruna Batra
(Smt) 2007 (3) SCC 169

3. Vimlaben Ajitbhai Patel Vs Vatslaben
Ashokbhai Patel & Others (2008) 4 SCC 649

(Delivered by Hon'ble Vivek Kumar
Birla, J.)

1. Heard learned counsel for the
appellant and Sri Vijay Sinha alongwith
Sri Samarth Sinha, learned counsel
appearing for the respondent.

2. Present appeal has been filed
against the judgment and order dated
17.8.2019 passed by the Civil Judge
(Senior Division), Ghaziabad in Civil Suit
No. 839 of 2017, Kamal Kishore Gaur Vs.
Smt. Richa Gaur.

3. A suit for mandatory injunction
was filed by the plaintiff-respondent
against the defendant-appellant herein,
who is daughter-in-law of the plaintiff.
Relevant facts are that after marriage the
defendant started living with her husband,
son of the plaintiff, but subsequently,
matrimonial disputes arose between them
and the plaintiff divested his son and
daughter-in-law on 25.7.2017 from his
property and asked them to leave the
house, which belongs to the plaintiff.
Thereafter, son of the plaintiff, namely,
Vikas Gaur, husband of the defendantappellant herein, left the house and started
living elsewhere. The suit for mandatory
injunction was filed on the ground that the
defendant is a licensee and has no right to
reside in the house in question after
cancellation of license by the plaintiff. It
is not in dispute that several matrimonial
disputes including criminal cases are
pending between the husband and wife,
wherein
plaintiff
and
other
family
members were also implicated.

4. The Trial Court framed six issues.
For the purpose of considering the appeal
at the admission stage three issues are
relevant,
namely,
(1)
whether
the
defendant is licensee in the house in
question; (2) whether the defendant is
entitled to live in the house in question;
and (3) to what relief the plaintiff is
entitled for. On issue Nos. 1 and 2 it was
found by the Trial Court that the
defendant was a mere licensee and has no
right to reside in the house in question
after cancellation of the licence by the
original owner i.e. the plaintiff. The suit
4 All. Smt. Richa Gaur Vs. Kamal Kishore Gaur
17
was decreed and the defendant was
directed to handover the possession of the
property in question to the plaintiff
otherwise the plaintiff shall be entitled to
recover the possession of the suit property
through Court.

5.

Challenging
the
aforesaid
judgment, submission of the learned
counsel for the defendant-appellant is that
the trial court has not considered the right
of the daughter-in-law, who is residing in
the house in dispute since 2012 and that
admittedly, her husband is residing in
another house and is not maintaining her,
therefore, she is entitled to reside in the
house in question as daughter-in-law as
soon after marriage she had started living
in this house and has a right to reside
therein.

6. Per contra, learned counsel for the
respondent has disputed the same and
submits that the law is settled that the
plaintiff is exclusive owner of the house
and admittedly, husband of the defendant
is living separately and license of the
defendant, who is living in the house, was
legally
terminated
by
the
plaintiff,
therefore, she has no right to reside in the
house in question. In support of his
arguments,
learned
counsel
for
the
respondent has placed reliance on a
judgment of this Court dated 29.9.2015
passed by Hon'ble Single Judge in First
Appeal No. 76 of 2014 (Smt. Sunita vs
Smt. Brahmwati And Another) whereby
the appeal was dismissed at the admission
stage itself.

7. I have considered the rival
submissions and perused the record.

8. On perusal of record I find that
admitted fact is that plaintiff is the owner
of the house in question; son of the
plaintiff i.e. husband of the defendant-
Vikas Gaur, who is living separately, has
been divested from the property and was
asked to leave the house by his father, the
plaintiff.

9. Under such circumstances, she
has no right to reside in the house in
question after cancellation of license by
the original owner i.e. the plaintiff herein.
A reference may be made in this regard,
to a judgment of the Hon'ble Apex Court
in the case of S.R. Batra and another vs.
Taruna Batra (Smt) 2007 (3) SCC 169.
Paragraphs 24, 25, 26, 29 and 30 of the
aforesaid judgment are quoted as under:-

"24. Learned counsel for the
respondent Smt. Taruna Batgra stated that
the
definition
of
shared
household
includes a household where the person
aggrieved lives or at any stage had lived
in a domestic relationship. He contended
that since admittedly the respondent had
lived in the property in question in the
past, hence the said property is her shared
household.

25. We cannot agree with this
submission.

26. If the aforesaid submission
is accepted, then it will mean that
wherever the husband and wife lived
together in the past that property becomes
a shared household. It is quite possible
that the husband and wife may have lived
together in dozens of places e.g. with the
husband's father, husband's paternal grand
parents, his maternal parents, uncles,
aunts, brothers, sisters, nephews, nieces
etc. If the interpretation canvassed by the
learned counsel for the respondent is
accepted, all these houses of the husband's
relatives will be shared households and
the wife can well insist in living in the all
these houses of her husband's relatives
18 INDIAN LAW REPORTS ALLAHABAD SERIES
merely because she had stayed with her
husband for some time in those houses in
the past. Such a view would lead to chaos
and would be absurd.

29. 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.

30. No doubt, the definition of
'shared household' in Section 2(s) of the
Act is not very happily worded, and
appears to be the result of clumsy
drafting, but we have to give it an
interpretation which is sensible and which
does not lead to chaos in society."

10. In the aforesaid case, the Hon'ble
Apex Court has interpreted the provisions
of Section 2(s) and Section 17 of the
Protection of Women From Domestic
Violence Act, 2005 and has observed as
noted above and refused to grant relief to
the wife.

11. S.R. Batra (supra) was relied
on in Vimlaben Ajitbhai Patel vs.
Vatslaben Ashokbhai Patel & Others
(2008) 4 SCC 649, paragraphs of 28, 47
and 48 whereof are quoted as under:-

"28. Interpreting the provisions
of the Domestic Violence Act this Court
in S.R. Batra vs. Taruna Batra (2007) 3
SCC 169 held that even a wife could not
claim a right of residence in the property
belonging to her mother-in-law, stating :

"17. There is no such law in India
like the British Matrimonial Homes Act,
1967, and in any case, the rights which may
be available under any law can only be as
against the husband and not against the
father-in- law or mother-in-law.

18. Here, the house in question
belongs to the mother- in-law of Smt
Taruna Batra and it does not belong to her
husband Amit Batra. Hence, Smt Taruna
Batra cannot claim any right to live in the
said house.

19. Appellant 2, the mother-inlaw of Smt Taruna Batra has stated that
she had taken a loan for acquiring the
house and it is not a joint family property.
We see no reason to disbelieve this
statement."

47. Reliance has also been
placed on I.J. Divakar and others vs.
Govt. of Andhra Pradesh and another :
(1982) 3 SCC 341. The said decision was
rendered
under
the
Industrial
Law.
Regularization
was
directed
to
be
provided to the workmen. A Constitution
Bench of this Court in Secretary State of
Karnataka and others vs. Umadevi and
others : (2006) 4 SCC 1 opined that all
such decisions shall stand overruled.

48. Sympathy or sentiment, as is
well known, should not allow the Court to
have any effect in its decision making
process. Sympathy or sentiment can be
invoked only in favour a person who is
entitled thereto. It should never be taken into
consideration as a result whereof the other
side would suffer civil or evil consequences."

12. It would also be relevant to
extract the relevant paragraphs of Smt.
4 All. Smt. Richa Gaur Vs. Kamal Kishore Gaur
19
Sunita (supra) which are quoted as
under:-

"The appellant is daughter-inlaw of the plaintiff who has filed a suit for
mandatory injunction against her son and
daughter-in-law. The defendant no. 1, son
of the plaintiff did not appear in the suit
and hence the suit had proceeded ex-parte
against defendant no. 2. The claim made
by defendant no. 2 was that soon after
marriage, she came to this house and as
such she has a right to reside therein. The
plaintiff cannot evict her from her marital
home.

...............

More so, in view of the findings
recorded by the court that the defendant
no. 2 was a mere licencee and has no right
to reside in the house in question after
cancellation of licence by the original
owner i.e. plaintiff.

The challenge to this finding on issue
no. 1 cannot be accepted for the reason
that a woman has a right to reside in the
house of her husband after marriage. She
has no claim on the house of her father-inlaw or mother-in-law. The property in
dispute was self acquired property of her
father-in-law
and
the
plaintiff
had
inherited the said house after death of her
husband. On account of mis-deeds of
defendant no. 2, the relations between
mother-in-law and daughter-in-law have
strained and therefore, the plaintiff has
asked the defendants to leave her house.
The plaintiff is a 70 years old lady and she
cannot be subjected any more physical or
mental harassment at the hands of the
defendant, her son and daughter-in-law."

13. Thus, not only what has been
held in S.R Batra (supra) as held by
Constitutional Bench in Uma Devi
(supra) referred to in Vimlaben Ajitbhai
Patel (supra), if any relief is granted to
the defendant-appellant it would be a case
of misplaced sympathy in favour of the
defendant, who had already filed several
cases including criminal case against the
old age plaintiff and other family
members.

14. In the present case, undisputedly,
the house in question belongs to the
father, the plaintiff and he had divested
his son from his property and admittedly,
the son (husband of the defendant) is not
living in the house.

15. In view of the discussion as
made hereinabove, it is clear that the
house, which admittedly belongs to the
plaintiff, cannot be treated as a shared
house in the facts and circumstances of
the case and as such the status of
defendant, as rightly held by the trial
court, would be merely of a licensee,
whose license stood terminated by the
original owner i.e. the plaintiff herein. As
such she has no right to reside in the
house in question after cancellation of the
license by the original owner i.e. the
plaintiff herein.

16. In case of Smt. Sunita (supra)
the plaintiff was about 70 years old lady
and in the present case also the plaintiff
was aged about 68 years in the year 2017
when the suit was filed and as such the
ratio of the said judgment applies with
full force.

17. Accordingly, I find that there is
no legal infirmity in the findings recorded
by the trial court. No other ground has
been pressed.
20 INDIAN LAW REPORTS ALLAHABAD SERIES

18. The appeal stands dismissed at
the admission stage itself.
----------

(2019)12 ILR A20

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.10.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJEEV MISRA, J.

First Appeal No. 737 of 2017
connected with
First Appeal No. 672 of 2018

Smt. Saroj Singh Chauhan ...Appellant
Versus
Arvind Kumar Chauhan ...Respondent

Counsel for the Appellant:
Sri Arvind Kumar Chauhan

Counsel for the Respondent:
Sri Triloki Nath, Sri T.N. Tiwari.

Civil Law - Family Court Act (66 of 1984)
Section 19 - Civil Procedure Code (5 of
1908) Order 5, Rule 20 - Order 9, Rule 13 -
Appeal
against
ex
parte
decree
-
Substituted service of summons - Suit for
divorce filed by husband - No summons
served upon wife prior to passing ex-parte
judgment & decree - Court below did not
record its satisfaction that publication had
been made in daily newspaper, which has
wide circulation in locality in which wife
resides - Ex-parte decree & order rejecting
recall application liable to be set aside

First Appeal allowed. (E-5)

List of cases cited: -

1. Ramji Dass and Others Vs Mohan Singh,
1978 ARC 496 (SC)

(Delivered by Hon'ble Hon'ble Rajeev
Misra, J.)
1. These are two Defendants' First
Appeals filed under Section 19 of Family
Courts Act 1984 (hereinafter referred to
as Act, 1984).

2. First Appeal No. 737 of 2017(
Smt. Saroj Singh Chauhan Vs. Arvind
Kumar
Chauhan)
has
been
filed
challenging judgement dated 25.07.2017
and decree dated 23.08.2017 passed by
Principal Judge, Family Court, Varanasi
in Misc. Case No. 77 of 2008 (Saroj Vs.
Arvind) in Marriage Petition No.565 of
2007 (Arvind Kumar Chauhan Vs. Saroj
Singh Chauhan) whereby and whereunder application dated 03.10.2008 (Paper
No. 4Ga) filed by Defendant-Appellant
(hereinafter referred to as 'Appellant')
under Order IX Rule13 C.P.C. for recall
of exparte judgement dated 08.05.2008
and decree dated 04.08.2008, respectively
has been rejected.

3. First Appeal No. 672 of 2018
(Smt. Saroj Singh Chauhan Vs. Arvind
Kumar
Chauhan)
has
been
filed
challenging exparte judgement dated
08.05.2008 as well as decree dated
04.09.2008 passed by Principal Judge,
Family Court, Varanasi in Marriage
Petition No.565 of 2007 (Arvind Kumar
Chauhan Vs. Saroj Singh Chauhan)
whereby
Court
below
has
allowed
Marriage Petition filed by plaintiffrespondent
(hereinafter
referred
to
as'Plaintiff') and consequently, annulled
marriage of parties.

4. We have heard Mr. T. N. Tiwari,
Advocate, learned counsel for Appellant.
No one has appeared on behalf of
respondent.

5. According to plaint allegations
marriage of Appellant was solemnized