IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 12TH OCTOBER 2010 / 20TH ASWINA 1932 Mat.Appeal.No. 175 of 2009() ---------------------------- OP.661/2006 of FAMILY COURT, KOTTARAKKARA .................... PETITIONER(S): PETITIONER: -------------------------- USHA, PLAVILA KIZHAKKETHIL, PERUNTHEYIL, PIRAVANTHOOR, PATHANAPURAM. BY ADV. SRI.SIBY MATHEW SRI.PHILIP J.VETTICKATTU SRI.B.PREMNATH (E) RESPONDENT(S): RESPONDENTS; --------------------------- 1. K.S.MONI, PERUNTHEYIL, PLAVILA KIZHAKKETHIL, PIRAVANTHOOR, PATHANAPURAM. 2. PADMAVATHY, SANTHOSHNILAYAM, KARAVOOR, PATHANAPURAM. ADV. SRI.PRAVEEN K. JOY FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 12/10/2010 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mat.Appeal.No. 175 of 2009: Ext.P5: True copy of the order dated 29/9/2007 passed by the Family Court, Kottarakkara, in O.P.No.660/06. Sd/- R. Basant, Judge. Sd/- M.L. Joseph Francis, Judge. //true copy// P.S. to Judge R. BASANT & M.L. JOSEPH FRANCIS, JJ. ------------------------------------------------- Mat. Appeal No. 175 of 2009-D ------------------------------------------------- Dated this the 12th day of October, 2010 JUDGMENT Basant,J. Aggrieved by the rejection of her claim for recovery of possession/ejection in a suit for declaration of title and ejection filed by her, the appellant/ petitioner/wife has come to this Court with this appeal. The 1st respondent in the appeal is the husband of the appellant. The 2nd respondent allegedly is a woman with whom the 1st respondent was allegedly having illicit relationship. 2. The appellant/wife in the petition filed by her asserted that the marriage between her and the 1st respondent was solemnized on 5/5/82. Two children - both boys, were born in the wed-lock. Even prior to the marriage which took place on 5/5/82, by Ext.A1 dated 19/4/82, the mother of the appellant had executed a gift deed in favour of the appellant assigning rights Mat. Appeal No. 175 of 2009 -: 2 :- over one acre of land. In view of the impending marriage between the appellant and the 1st respondent and as insisted by the 1st respondent, the gift deed was executed in the joint names of the appellant and the 1st respondent. According to the appellant, the 1st respondent's name was included as a donee in the document only a name lender and as the husband of the appellant and he had not, in fact, acquired any independent rights over the property conveyed by Ext.A1. 3. After the marriage, by Ext.A2 document, the property conveyed by Ext.A1 document and another extent of property belonging to the mother of the appellant, were sold by the appellant, 1st respondent and the mother of the appellant jointly by Ext.A2 document dated 27/2/84. Even though the 1st respondent had no right really in the properties gifted under Ext.A1, as his name was included in Ext.A1 gift deed, he figured as an executant in Ext.A2 assignment deed also. Making use of the money obtained by sale under Ext.A2 deed, the appellant purchased the petition schedule property under Ext.A3 document of sale dated 8/3/84. That purchase was also made in the joint names of the appellant and the 1st respondent - spouses. 4. Relationship between the appellant and the 1st respondent got strained after two children were born in the wed- Mat. Appeal No. 175 of 2009 -: 3 :- lock. According to the appellant, in the house in Ext.A3 property i.e., the petition schedule property, the 1st respondent was now in occupation along with the 2nd respondent, allegedly a woman with whom the 1st respondent was having illicit relationship. 5. In these circumstances, the appellant had come to Court claiming a decree for declaration of her absolute rights over the petition schedule property purchased under Ext.A3 and for an order of eviction/recovery of possession from the 1st respondent who was in occupation of the building in the petition schedule property. Ext.A4 is the receipt issued by the local police to acknowledge the receipt of a complaint from the appellant about the misdeeds of her husband - the 1st respondent, in respect of the property and the building in question. 6. The respondents were served. They appeared for counselling. No productive results emanated from the counselling. Thereafter, the matter was posted for written statement of the parties. The 2nd respondent filed a written statement. She claimed no rights over the petition schedule property purchased under Ext.A3. The 1st respondent did not file a written statement and did not take part in the proceedings Mat. Appeal No. 175 of 2009 -: 4 :- thereafter. In these circumstances, the court below proceeded to consider the claim of the appellant. Proof affidavit was filed by the appellant. Exts.A1 to A4 were marked. There was no cross-examination of the appellant. 7. In the total absence of any challenge against the evidence of the appellant as P.W.1 and in the light of the absence of contest on the part of the 1st respondent, the court below taking note of the realities of the situation reflected in Exts.A1 to A3 documents, proceeded to allow the petition in part. The absolute right of the appellant over the petition schedule property was declared. The 1st respondent and his men were permanently restrained from committing any act of waste in the petition schedule property. But the claim of the appellant for an order of eviction/recovery of possession was turned down. That relief was turned down obviously on the short ground that the 1st respondent being the husband of the appellant herein and the marriage having not been dissolved, he is entitled to reside in the building in the petition schedule property. Accordingly, that prayer made by the appellant - for a decree for recovery of possession/ejection was turned down. 8. The learned counsel for the appellant assails the impugned order on a very short ground. The counsel contends Mat. Appeal No. 175 of 2009 -: 5 :- that the Family Court was absolutely unjustified in assuming in the absence of any better evidence that the marital tie between the appellant and the respondent subsisted on the date of the impugned order. The impugned order was passed on 4/6/08. The marital tie had been dissolved by order dated 29/9/07 in O.P.No.660/06. In these circumstances, the very plank on which decree for possession/eviction was turned down by the court below is unjustified and non-existent, contends the learned counsel for the appellant. 9. The said order has subsequently been produced. We marked the same as Ext.A5 invoking our powers under Order 41 Rule 27 CPC. There is no dispute about the existence of Ext.A5 and the fact that the marital tie has been dissolved. The respondents have entered appearance before this Court through a counsel. The learned counsel, when the matter was taken up for arguments long back, made a representation that the appellant wants to challenge Ext.A5 order granting divorce which also was an ex parte order. Time was indulgently granted. An application to set aside the ex parte order in O.P.No.660/06 was filed. It is now admitted at all hands that the said application to set aside the ex parte order, after condoning the delay, has already been dismissed. The order of divorce has Mat. Appeal No. 175 of 2009 -: 6 :- become final. There is no surviving challenge against Ext.A5 order of divorce. 10. It is of crucial relevance to note that the husband has not so far chosen to challenge the impugned decree in so far as it is against him. We have to assume that he has no grievance against the declaration of title of the appellant in respect of the petition schedule property. The impugned order in so far as it rejects the claim for recovery of possession/ejection is found to be unsustainable in law in the light of Ext.A5 which has now become final. We are, in these circumstances, satisfied that the court below was absolutely unjustified in turning down the claim for recovery of possession/ejection of the respondents from the petition schedule property. The challenge in the appeal must, in these circumstances, succeed. 11. In the result: (a) This appeal is allowed. (b) The impugned order is upheld in all other respects. (c) But the rejection of the claim for recovery of possession/ejection of the respondents from the petition schedule property is set aside and the appellant is granted decree to recover possession of the petition schedule property from the respondents. Respondents 1 and 2 shall be liable to be Mat. Appeal No. 175 of 2009 -: 7 :- evicted from the petition schedule property and the building therein in execution of the decree. (d) We direct the respondents to suffer the costs of the appellant in this appeal. Sd/- R. BASANT (Judge) Sd/- M.L. JOSEPH FRANCIS (Judge) Nan/ //true copy// P.S. to Judge Mat. Appeal No. 175 of 2009 -: 8 :-