Possession Of Father's House By Son Doesn’t Create Legal Right To Claim Property As His Own Unless Property Is Ancestral Or HUF: Rajasthan High Court

The High Court was considering a Civil Second Appeal filed under section 100 of Code of Civil Procedure against the judgment of the Additional District Judge, dismissing the appellant-defendant’s First Appeal and affirming the judgment decreeing the Civil Suit for mandatory and permanent injunction filed by the respondent-plaintiff. The appellant-defendant was directed to vacate and handover actual possession of the suit property to the respondent-plaintiff.

The Single Bench of Justice Sudesh Bansal held,“...it is suffice to observe that a child continues to reside in the property of his father during the course of his childhood by virtue of love and affection and because of the parental duty of the father. Subsequently, in adulthood, after attaining the age of majority and entering into marriage, if the father allows his son or daughter to continue in possession of his house or property or its portion, the same does not, by itself, create any legal right in favour of the child to claim that property as his own, unless the property is ancestral or of HUF.”

Senior Advocate R.K. Agarwal represented the Petitioner, while Senior Advocate Ajeet Bhandari represented the Respondent.

Factual Background

A plot was stated to be jointly purchased by plaintiff and his brother Radheshyam in an auction, conducted by Nagar Palika and the sale deed of plot in question was registered in their joint name. It was pleaded by the plaintiff in the plaint that plot in question was divided between both brothers with mutual consent and west side portion of the plot came in the share of plaintiff. A written document, in conformity with the mutual division of plot came to be executed. It was also pleaded that the plaintiff father raised construction of his residential house over his portion of a plot and he was the sole owner and possession holder of his house. It was averred that defendant son was residing in the portion of the plaintiff house with his permission and as a licensee.

The plaintiff filed a Civil Suit for issuance of a mandatory injunction against the defendant, directing him to handover actual and vacate possession of the portion of the plaintiff to him. The Trial Court held that the plaintiff had a vested right to get the property vacated from his son. The judgment and decree of the trial Court was assailed by the defendant, by way of filing a Civil First Appeal. The appellate Court reaffirmed the findings that the defendant could not establish his plea of HUF. The first appeal was dismissed. Hence, the second appeal was filed by the defendant.

Reasoning

The Bench noted that the defendant alleged the property in question to be of HUF but such defence and his counterclaim had not been found proved. It was further noticed that both the Courts, after appreciation of the evidence of both parties, observed that the defendant did not produce a single document or piece of evidence to establish that the property in question belonged to HUF and the defendant could not prove his status in the suit property as a co-parcener or owner. The Bench also observed that the High Court cannot set aside the findings of fact recorded by the two courts below, when such findings are based on proper appreciation of evidence.

It was further noted that the defendant, falling within the relationship with the plaintiff as his natural son and being in permissive possession, as a family member and gratuitous licensee in the property of his father, couldnot claim that the plaintiff ought to have filed a suit for possession only. Considering that the permission granted by the father had been revoked/ withdrawn, which was concurrently held by both courts below, thus, the relationship between the plaintiff and the defendant, being father and son, the suit for mandatory injunction was maintainable and had rightly been decreed.

Holding that the Trial Court had not erred in issuing a decree for mandatory injunction, directing the defendant son to vacate and hand over possession of the suit property to the plaintiff, the Bench dismissed the petition and also imposed a cost of Rs 1 lakh on the appellant son.

Cause Title: Ritesh Khatri v. Shyam Sundar Khatri (Neutral Citation: 2025:RJ-JP:42107)

Appearance

Appellant: Senior Advocate R.K. Agarwal, Advocates Mamoon Khalid, Dharmesh Jain, Adhiraj Modi

Respondent:Senior Advocate Ajeet Bhandari, Advocate Atul Bhandari

Click here to read/download Order