IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 14TH DECEMBER 2011 / 23RD AGRAHAYANA 1933 CRP.No. 502 of 2011() ------------------- OS.413/2011 of II ADDITIONAL SUB COURT, ERNAKULAM ............... REVISION PETITIONERS / DEFENDANT NO.2 AND 3 : --------------------------------------------------------------------------- 1. JOSHY, S/O.T.S.JACOB, AGED 39 YEARS, THOZHUPPADAN HOUSE, KANDANADU DESOM, MANAKUNNAM VILLAGE, ERNAKULAM DISTRICT. 2. MARRY, W/O T.S.JACOB, AGED 59 YEARS, THOZHUPPADAN HOUSE, KANDANADU DESOM, MANAKUNNAM VILLAGE, ERNAKULAM DISTRICT. BY ADV. SRI.P.M.SAJI RESPONDENTS / PLAINTIFF AND DEFENDANT NO.1 : ---------------------------------------------------------------------------- 1. T.S.JACOB, AGED 67 YEARS, S/O SEEMAN, THOZHUPPADAN HOUSE, KANDANADU DESOM, MANAKUNNAM VILLAGE, ERNAKULAM DISTRICT, PIN 682 305. 2. T.S.YOHANNAN, AGED 58 YEARS, S/O SEEMAN, THOZHUPPADAN HOUSE, KANDANADU DESOM, MANAKUNNAM VILLAGE, ERNAKULAM DISTRICT, PIN 682 305. R1 BY ADV. SRI.PAUL K.VARGHESE R2 BY ADV. SRI.SUNNY P MARKOSE THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn THOMAS P. JOSEPH, J. -------------------------------------- C.R.P.No.502 of 2011 -------------------------------------- Dated this the 14th day of December, 2011. ORDER Defendants 2 and 3 in O.S.No.413 of 2011 of the court of learned Additional Sub Judge-II, Ernakulam challenge order dated 10.10.2011 holding that the Sub Court has jurisdiction to entertain the suit. 2. 1st respondent is the father of 1st petitioner and husband of 2nd petitioner. 2nd respondent is the brother of 1st respondent. 2nd respondent executed assignment deed No.1277 of 2009 in favour of petitioners regarding plaint B schedule which is 18.903 cents and forming part of the total extent of 33 cents described in the plaint. 2nd respondent claimed title and possession of plaint B schedule while executing assignment deed No.1277 of 2009. 1st respondent, brother of 2nd respondent filed O.S.No.413 of 2011 for a declaration that the said assignment deed is null and void due to fraud, misrepresentation and collusion between petitioners and 2nd respondent and also for a decree for prohibitory injunction to restrain petitioners and others from trespassing into plaint A schedule (which takes in plaint B schedule as well). 1st respondent claimed that he has got absolute title and possession of plaint A schedule (including plaint B schedule) as per the exparte decree in O.S.No.517 of 2007 obtained by him against the 2nd respondent. Petitioners filed written statement contending that the suit is not maintainable before the civil court in view of CRP No.502/2011 2 Explanations (c) and (d) of Section 7(1) of the Family Courts Act (for short, “the Act”) and also raised a counter claim that the judgment and decree in O.S.No.517 of 2007 obtained by the 1st respondent against 2nd respondent are fraudulent and collusive. Learned Sub Judge raised the question of maintainability of suit as issue No.1 and decided the issue against petitioner holding that civil court has jurisdiction to entertain the suit. That order is under challenge. 3. Learned counsel for petitioners contend that the suit would come within the mischief of Explanation (c) or (d) of Sec.7(1) of the Act. According to the learned counsel, the real dispute in this case is between petitioners and the 1st respondent and at any rate, the suit being for declaration and injunction in the circumstances arising out of the marital relationship would come under Explanation (d) of Sec.7(1) of the Act. It is contended that a suit of this nature will also come within the purview of Explanation (d) of Sec.7(1) of the Act. Reliance is placed on Vasumathi v. Valsan (2011 (3) KLT 638). 4. In response learned counsel for 1st respondent has contended that the real dispute is whether 2nd respondent had title over the property to be conveyed to the petitioners which has nothing with the marital relationship between 2nd petitioner and the 1st respondent. That being so, learned Sub Judge was correct in holding that civil court has jurisdiction to entertain the suit. 5. Explanation (c) of Sec.7(1) of the Act deals with a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them. Explanation (d) of the said Section deals with a suit CRP No.502/2011 3 or proceeding for an order or injunction in circumstances arising out of a marital relationship. The Division Bench in the decision referred supra referring to Explanation (c) of Sec.7(1) of the Act stated that a suit or proceeding cannot lose its essential character as one between parties merely because that proceeding is initiated by a name lender to one of the parties who on his own showing has no dispute with one of the spouses. The amplitude of Explanation (d) of Sec.7(1) of the Act was also explained in the said decision that the expression ‘a suit or proceeding for an order or injunction' would take in any suit for injunction or for other relief as well. 6. Now the question is whether Explanation (c) and/or (d) of Sec.7(1) of the Act would apply to the factual situation emerging in the case on hand. Even in the decision referred supra it is held that the real dispute between the parties is to be ascertained to determine whether civil court has jurisdiction to entertain the suit or the Family Court has jurisdiction to entertain the matter. In the present case, the claim of 1st respondent is that he had absolute title and possession over plaint A schedule which takes in plaint B schedule also by virtue of the decree in O.S.No.517 of 2007 he obtained against 2nd respondent. It is his further contention that therefore, 2nd respondent had no right, title or interest over the property to be conveyed to the petitioners by assignment deed No.1277 of 2009. 1st respondent attacked that assignment deed on the ground that it is null and void due to fraud, misrepresentation and collusion between petitioners and 2nd respondent and claimed for a decree for prohibitory injunction as if he continues to be in possession of plaint A schedule (33 cents) notwithstanding CRP No.502/2011 4 assignment deed No.1277 of 2009. 7. I do not forget that petitioners have raised a counter claim challenging the decree in O.S.No.517 of 2007 obtained by 1st respondent against 2nd respondent as collusive and fraudulent. The real dispute involved in the suit as I could gather from the averments in the plaint as also from the submissions made by both sides is whether the 2nd respondent continued to have any right, title or possession of plaint B schedule (which forms part of plaint A schedule) in view of the judgment and decree in O.S.No.517 of 2007. That is the real dispute involved and if the answer to that issue is that the 2nd respondent had title and possession of the property, necessarily the assignment deed executed by him in favour of petitioners notwithstanding the question whether petitioners are son and wife of 1st respondent has to stand. It is a different matter that petitioners have challenged the judgment and decree in O.S.No.517 of 2007 obtained by the 1st respondent but, I must bear in mind that it is not on account of any marital relationship or any dispute arising out of marital relationship that petitioners have challenged judgment and decree in O.S.No.517 of 2007 obtained by the 1st respondent. On the other hand it is on the ground that the decree is obtained by 1st respondent by fraud and collision with 2nd respondent, his brother. It is also relevant to note that in O.S.No.517 of 2007 the decree was obtained by 1st respondent on the strength of adverse possession and the Law of Limitation. Viewed in that line I am inclined to accept the contention that the real dispute is not between 1st respondent and petitioners, nor arising between 2nd respondent and 1st petitioner but, it is between respondents 1 and 2. Even if the counter CRP No.502/2011 5 claim raised by petitioners is taken into account, there also the question is whether decree obtained by the 1st respondent against the 2nd respondent in O.S.No.517 of 2007 is valid and enforceable. Viewed in that line I am inclined to uphold the finding of learned Additional Sub Judge that the civil court has jurisdiction to entertain the suit and counter claim. Resultantly, civil revision fails. It is dismissed. I make it clear that I have not expressed any opinion on the acceptability or otherwise of the contentions which parties have raised in the suit and counter claim. That is a matter which learned Sub Judge has to decide after a full fledged trial. Learned Additional Sub Judge shall expedite the trial and disposal of the suit and counter claim. I.A.No.2624 of 2011 will stand dismissed. THOMAS P.JOSEPH, Judge. cks