Ranjit Kaur vs Harmohinder Singh & Ors

Ranjit Kaur .....Appellant

versus

Major Harmohinder Singh and others ......Respondents

J U D G M E N T

1. Leave granted.

2. The appellant is aggrieved by the order of the learned Single

Judge of the Punjab and Haryana High Court whereby he allowed

the revision filed by respondent No. 1 and vacated the order

of injunction passed by the trial Court, which had been partly

confirmed by the lower appellate Court insofar as it related

to her forcible eviction from suit property, i.e. Kothi No.

84, Phase-IX, SAS Nagar (Mohali).

3. The appellant and respondent No. 1 were married in 1978.

After 15 years of the marriage, respondent No. 1 filed a suit

for permanent injunction for restraining the appellant from

interfering with the suit property. On being noticed, the

appellant filed counter claim and pleaded that in terms of

Section 18 of the Hindu Adoptions and Maintenance Act, 1956,

she is entitled to reside in the suit property. The trial

Court dismissed the suit of respondent No. 1 and decreed the

counter claim filed by the appellant. The first and the

second appeals filed by respondent No. 1 were dismissed by the

lower appellate Court and the High Court. Special Leave

Petition (Civil) No. 4193/2000 filed by him was summarily

dismissed by this Court vide order dated 16.3.2000.

4. In the meanwhile, respondent No. 1 filed a petition under

Section 13 of the Hindu Marriage Act, 1955 for dissolution of

marriage on the ground of cruelty. The same was decreed by

Additional District Judge, Ropar vide judgment dated

4.10.2001. The appeal preferred by the appellant was dismissed

by the High Court and the decree of divorce was confirmed.

5. After dissolution of the marriage, the appellant filed suit

for permanent injunction and prayed that respondent No. 1 be

restrained from alienating the suit property and interfering

with her peaceful possession over the suit property. She also

prayed for restraining Punjab Urban Development Authority

(PUDA) (Respondent No. 5 herein) from issuing `No Objection

Certificate' to respondent No. 1 to enable him to alienate or

transfer the suit property.

6. Along with the suit, the appellant filed an application under

Order XXXIX Rules 1 and 2 CPC for grant of temporary

injunction against alienation of the property and her

dispossession. By an order dated 23.2.2005, the trial Court

allowed the application and directed respondent No.1 not to

dispossess the appellant. The trial Court also restrained

PUDA from issuing `No Objection Certificate' in favour of

respondent No. 1.

7. On an appeal filed by respondent No. 1, the aforesaid order of

injunction was partly set aside by the lower appellate Court and

the restraint imposed by the trial Court against alienation of the

suit property was withdrawn. However, a direction was given that

in the event of alienation of the suit property, respondent No.1

shall incorporate the factum of pendency of suit in the transfer

deed/sale deed and also make alternative arrangement for the

appellant.

8. Both, the appellant and respondent No. 1 challenged the

appellate order by filing separate revisions. The learned Single

Judge adverted to the history of litigation between the parties and

held that in the absence of any stipulation in the decree of

divorce, the appellant was not entitled to an order of injunction

against alienation of the suit property or a restraint order

against her dispossession. In the opinion of the learned Single

Judge, once the decree of divorce was passed, matrimonial relation

between the parties ceased and, therefore, the appellant cannot

continue to occupy the house owned by respondent No. 1 as of right.

The learned Single Judge also opined that there was no

justification to impose any restriction against alienation of the

suit property by respondent No. 1.

9. We have heard Shri S. K. Dholakia, learned senior counsel

appearing for the appellant and Shri Rohit Sharma, learned counsel

appearing for respondent No. 1 and perused the record.

10. It is not in dispute that the decree of divorce passed by

Additional District Judge, Ropar has become final. It is also not

in dispute that the petition filed by the appellant under Section

125 of the Code of Criminal Procedure for grant of maintenance was

dismissed by the concerned Court and in the decree of divorce, no

provision was made for maintenance of the appellant including the

right of residence in the suit property. Therefore, it is not

possible to find any fault with the order passed by the lower

appellate Court, whereby injunction granted by the trial Court

against alienation of the suit property was vacated and there is no

warrant for this Court's interference with the impugned order in so

far as it confirms this part of the order passed by the lower

appellate Court.

11. However, we find merit in the arguments of learned senior

counsel for the appellant that the High Court was not justified in

vacating the restraint order passed by the trial Court against the

dispossession of his client. Learned counsel is right in his

submission that even though in the decree of divorce, the appellant

has not been given a right of residence and her occupation of the

suit property can be treated as unauthorized, respondent No. 1

cannot evict her except after following the procedure established

by law. The material placed on record shows that the appellant

had entered into the property as the wife of respondent No. 1.

Therefore, even though, after passing of the decree of the divorce

she may not have a legal right to continue to remain in possession

of the suit property, respondent No. 1 cannot be given liberty to

forcibly evict her.

12.In the result, the appeals are partly allowed, the impugned

order is set aside insofar as it enables respondent No. 1 to

forcibly evict the appellant from the suit property. This

would necessarily mean that respondent No. 1 shall be free to

evict the appellant from the suit property in accordance with

law. The appellant's prayer for restraining respondent No.1

from alienating the suit property is, however, rejected and,

to that extent, the appeals are dismissed. The parties are

left to bear their own costs.

.......................................................J. (G.S. SINGHVI)

.......................................................J. (SUDHANSU JYOTI MUKHOPADHAYA) New Delhi, November 02, 2011.