The provisions of the Maintenance and Welfare of Parents and Senior Citizens Act do not inhibit a property owner's right to recover possession of their property from a relative residing without permission.

JUDGMENT

These appeals are filed against the judgments in A.S.Nos.40 and 41 of 2019 arising from O.S.No.104/2015. The appellant is the father of the respondent. The suit was filed by the respondent for recovery of possession of the plaint schedule property and mesne profits. The plaint schedule property was acquired by the respondent under registered deed No.4691/2009 Sub Registrar’s Office, Sulthan Bathery. A residential house has been constructed in the property.

2. According to the respondent, the house warming ceremony was conducted on 09.05.2011. It is stated that the appellant was residing in another house named Geetha Nivas, Cheeral, which was constructed in 50 cents of dry land owned by the appellant. The appellant was not residing with the wife and children and had filed petitions before the Family Court, Kalpetta seeking reliefs like maintenance and injunction. The suit was filed alleging that the appellant had trespassed into the cellar portion of the plaintiff’s house and the said portion has been described as plaint ‘B’ schedule property.

3. The appellant filed a written statement contending that the plaintiff is not residing in plaint ‘A’ schedule property. It is contended that the appellant had paid advance for the property and completed the construction of the house and had spent around Rs.2,00,000/- for the construction of the house. It is specifically stated that plaint B schedule was constructed for the residential purpose for the appellant and has a separate entrance. It is further stated that the appellant does not own 50 cents of property and that the wife and children are not in good terms with the appellant only because he was not ready to partition the remaining 40 cents of property in his ownership. The appellant had filed OP No.180/2014 for restitution of conjugal rights. It is further stated that the prayer in the plaint is against the Indian culture and is illegal and that suit has been filed since the Family Court, Kalpetta had ordered payment of Rs.3,000/- per month as maintenance to the appellant. Based on the contentions in the written statement, the appellant had also filed a counter claim seeking permanent prohibitory injunction against the plaintiff from evicting him from the plaint B schedule property.

4. The trial court by judgment dated 24.06.2019 decreed the suit and dismissed the counter claim. The court found that the respondent is the owner of the property. It was also found that the appellant is residing in the plaint B schedule without any authority since the respondent has established his right. It was found that the respondent is entitled to get a decree of recovery of possession of the plaint B schedule property. The court also considered the argument on behalf of the appellant that the son has a moral obligation to support and protect the father and that the appellant is entitled to a permanent prohibitory injunction against the plaintiff. Reliance is also placed on the order of the Revenue Divisional Officer, Mananthavady permitting the appellant to reside in plaint B schedule property. However, it is in evidence that the order of the Revenue Divisional Officer has been set aside by this Court. The court found that apart from the moral obligation the defendant could not place any material justifying the prayer made in the counter claim. The counter claim was hence dismissed.

5. The appellant filed appeals before the first appellate court against the decree passed in the suit and the dismissal of the counter claim. Before the appellate court, it was contended that as per the provisions of Section 27 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as ‘the Act’) the civil court did not have jurisdiction to grant the prayer sought for. The appellate court confirmed the judgment of the trial court. Regarding the contention based on of the Act, the court found that the bar under cannot be understood to be a complete bar tying the