Sunita Awasthi v. Savitri Awasthi

1. This Regular Second Appeal is filed against the judgment of the first appellate court dated 16.7.2011 by which the appeal filed by the appellant/defendant was dismissed.

2. At the outset, it needs to be clarified that there are two judgments dated 16.7.2011. One judgment which is impugned in this appeal was passed in appeal against the final judgment and decree of the trial court dated 30.10.2009, and, the other judgment was passed dismissing the appeal filed by the appellant/defendant against the dismissal of her application 2014:DHC:1092 under Order 9 Rule 13 of Code of Civil Procedure, 1908 (CPC). In view of the expansive prayer clauses in the appeal, counsel for the appellant has made a statement that this appeal is a Regular Second Appeal against the impugned judgment dated 16.7.2011 which dismissed the first appeal against the final judgment dated 30.10.2009 passed in the suit.

3. Respondent/plaintiff filed the subject suit for mandatory injunction and mesne profits against the appellant with respect to the suit property being first floor of the property bearing no.RZ-59/D, Gali No.9, Tuglaqabad Extension, New Delhi. Respondent/plaintiff is the mother-inlaw and the appellant/defendant is the daughter-in-law. Appellant/defendant was married to late Sh. Tarun Awasthi, son of the respondent/plaintiff.

4. Before stating the facts of the present case and the arguments urged on behalf of the appellant, it is relevant to state that the judgment of the trial court dated 30.10.2009 which was appealed before the first appellate court and which is also in challenge before this Court in this second appeal, is an exparte judgment and decree inasmuch as the appellant/defendant after service appeared on 1.6.2007, however as she failed to appear thereafter she was proceeded exparte on 17.9.2007. No written statement has been filed by appellant/defendant and no evidence was led by her. Respondent/plaintiff led evidence and proved her case, and therefore the suit was decreed by the judgment of the trial court dated 30.10.2009 for the following reliefs:- “(I) A Decree of Mandatory Injunction is being passed directing the defendant no.1 to remove her goods and belongings from the first floor of the suit property as shown red in the site plan.

(II) The defendant no.1 to 3 and their agents etc. are restrained from disturbing or interfering with the peaceful possession and enjoyment of the plaintiff in the suit property.

(III) The defendant no.1 and their agents etc., are restrained for handing over or delivering or parting with the possession or otherwise creating any third party interest over the first floor of the suit property.”

5. Once the judgment which is appealed from shows that the appellant/defendant did not file any written statement, did not lead any evidence and the respondent/plaintiff proved her ownership of the suit property, there is no reason why the impugned judgments require to be set aside. It requires to be noted that the Supreme Court in the judgment in the case of S.R. Batra & Anr. Vs. Smt. Taruna Batra (2007) 3 SCC 169 has held that a daughter-in-law has no right in the property of her mother-in-law.

6. Counsel for the appellant/defendant contended that the document which is filed by the respondent/plaintiff herself in the suit, being the police complaint dated 15.12.2006, itself showed that there was an agreement for the appellant to continue to stay in the suit property and there is a reference of an agreement in the said police complaint dated 15.12.2006.

7. I have gone through the police complaint dated 15.12.2006. At two places, there is a reference to an agreement dated 15.12.2006, however the agreement either pertains to another property in which the appellant/defendant was living which is B-151, LIG Flats, Kalkaji, Part-II, New Delhi or is an agreement with respect to conduct and behaviour of the appellant. The police complaint dated 15.12.2006 on being read as a whole does not show any agreement between the parties with respect to entitlement of the appellant/plaintiff to continue in the suit property. The document is in vernacular and this Court has gone through every line of the same alongwith the counsel for the appellant, and it is not found that in this document there is any settlement or agreement between the parties with respect to the suit property as is claimed.

8. In view of the above, no substantial question of law arises for this appeal to be entertained under Section 100 CPC and the same is therefore dismissed, leaving the parties to bear their own costs.

FEBRUARY 26, 2014 VALMIKI J. MEHTA, J. Ne