IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA No. 398 of 1993()
1. SELIN
... Petitioner
Vs
1. LAWRENCE PERCIRA
... Respondent
For Petitioner :SRI.B.KRISHNAMANI, V.PREMCHAND
For Respondent :SRI.R.S.KALKURA, G.S.REGHUNATH
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :19/03/2007
O R D E R
M.SASIDHARAN NAMBIAR,J.
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S.A. NO.398 OF 1993
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Dated this the 19th day of March, 2007
JUDGMENT
Plaintiff in O.S.88/1988 on the file of Munsiff
Court, Thiruvananthapuram is the appellant.
Respondent is the defendant. Plaintiff and
respondent are husband and wife. The suit is filed
seeking a decree for permanent prohibitory
injunction restraining respondent from trespassing
into the plaint schedule property. Admittedly the
relationship between the parties are strained.
Petition was filed by appellant before Family Court
for judicial separation. Under Exts.A1 and A2, the
title of the plaint schedule property vests with
the appellant. According to appellant, respondent
left the house and is living away from the
appellant since May,1987. The case of the
appellant was that respondent is not entitled to
reside in her house and therefore he is to be
restrained by a permanent prohibitory injunction.
S.A.No.398/93 2
Respondent in the written statement contended that
the property was purchased with his funds and he is
residing in that house till appellant left the
house on 17.11.87. It was contended that
respondent is entitled to reside in the house and
appellant is not entitled to the decree sought for.
Learned Munsiff framed the necessary issues. On
the evidence of plaintiff as PW1 and defendant as
DW1, Exts.A1 to A4 and B1 to B6 learned Munsiff
held that Exts.A1 and A2 establish title of the
appellant and case of respondent that the amount
for purchase of the plaint schedule property was
advanced by him was not proved. Learned Munsiff
also found that appellant is in exclusive
possession of the building and against her wishes
respondent is not entitled to reside therein and
therefore granted a decree restraining respondent
from trespassing into the plaint schedule property.
Respondent challenged the decree and judgment
before the District Court, Thiruvananthapuram in
A.S.435/1991. Learned District Judge on
S.A.No.398/93 3
reappreciation of evidence confirmed the findings
of the learned Munsiff that the title of the plaint
schedule property vests with the appellant.
Learned District Judge on the evidence found that
respondent being her husband is also residing in
that building and in a suit for injunction
question of possession on the date of the suit is
to be considered. Analysing the evidence learned
District Judge found that the husband is also
residing in that house. Holding that so long as
the marital relationship subsists the husband is
entitled to reside therein, learned District Judge
held that the decree for injunction is only a
discretionary relief and the appellant is not
entitled to the decree for injunction granted by
the learned Munsiff. The decree granted was set
aside and the suit was dismissed. It is challenged
in the second appeal.
2. The Second Appeal was admitted after
formulating the following substantial questions of
law.
S.A.No.398/93 4
1) Whether the first Appellate Court was
correct in interfering with the decree granted by
the trial court after upholding the finding on the
question of title.
2) Whether the finding of the first Appellate
Court that respondent is entitled to reside in the
plaint schedule building is sustainable?
3. Learned counsel appearing for appellant and
respondent were heard.
4. The argument of learned counsel appearing
for appellant was that though respondent disputed
the title the trial court and the first Appellate
Court on evidence held that appellant has title to
the property under Exts.A1 and A2. It was also
argued that courts below also found that
appellant has established her possession of the
property. It is therefore argued that in such
circumstance, first Appellate Court should not have
interfered with the decree granted by the trial
court. The argument of learned counsel appearing
for appellant was that trial court analysed each
S.A.No.398/93 5
item of evidence in the proper perspective and
found that the documents relied on by the
respondent were subsequent to the institution of
the suit and therefore first Appellate Court should
not have interfered with the decree.
5. On hearing learned counsel for the
appellant and respondent, it is clear that the
marital relationship between the husband and wife
still subsists. Though a petition for judicial
separation was filed before the Family Court by the
wife, it was not successful. So long as the
marital relationship subsists, the wife is not
entitled to contend that husband is not entitled to
come and reside with her. On the evidence learned
District Judge found that respondent husband is
also residing in the plaint schedule building on
the date of the filing of the suit. Learned
District Judge also found that being a
discretionary relief appellant is not entitled to
get decree for injunction. On the facts and
circumstances of the case, I do not find any
S.A.No.398/93 6
substantial question of law involved in the appeal.
So long as the marital relationship subsists, the
wife is not entitled to contend that husband is
not entitled to reside with her. In such
circumstance, I do not find any reason to interfere
with the decision of the District Judge holding
that appellant is not entitled to the decree for
permanent prohibitory injunction sought for.
Appeal is dismissed.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
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S.A..NO.398 /93
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JUDGMENT
19th March, 2007