Possession under domestic violence laws can only be permissive; suits for mandatory injunctions are maintainable against those with no legal ownership.

JUDGMENT

1. The 2^nd defendant in a suit for mandatory and prohibitory injunction is the appellant. The Trial Court decreed the suit which was confirmed by the First Appellate Court.

2. The plaintiffs are the husband and wife. They are the aged parents of the 1^st defendant. The 2^nd defendant is the wife of the 1^st defendant. The plaint schedule property and the residential building therein belonged to the plaintiffs as per Ext.A1. Originally, the suit was filed for prohibitory injunction. Thereafter, the suit was amended, including the prayer for mandatory injunction compelling the 2^nd defendant to vacate the house in the plaint schedule property on the ground that the 2^nd defendant trespassed into the plaint schedule property, breaking open the lock of the house.

3. The Trial Court decreed the suit directing the 2^nd defendant to vacate the house in the plaint schedule property by taking all her belongings within one month from the date of the judgment. Further, the defendants are restrained by a decree of permanent prohibitory injunction from trespassing into the house in the plaint schedule property without prior permission of the plaintiffs and committing waste therein.

4. I heard the learned counsel for the appellant Sri. Rajesh V. Nair and the learned counsel for the respondents 1 and 2 Smt.C.Leena.

5. The learned counsel for the appellant contended that the possession of the 2^nd defendant can only be a legal possession as she has a right to reside in the shared household as per Section 17 of the Protection of Women from Domestic Violence Act, 2005 . Considering her right to remain in possession, the learned Magistrate passed Ext.B9 Residence Order in favour of the 2nd defendant. It is true that the 2^nd defendant can be evicted from the premises in accordance with the procedure established by law. But since the possession of the 2^nd defendant is that of a legal possession, a suit for mandatory injunction will not lie. The plaintiffs should have filed a suit for recovery of possession. The learned counsel invited my attention to the definition of the respondent in Section 2 (q) of the DV Act to substantiate the contention that the respondent mentioned therein will include the 1^st plaintiff also, who is her father-in-law. The learned counsel further contended that there is a clear mandate under Section 19 (1)(f) of the DV Act to secure the same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same. So only after ensuring such accommodation or payment of rent by the plaintiffs the Court can direct the 2^nd defendant to vacate the plaint schedule building. The learned counsel relied on the decision of this Court in Karunagappally Coir Vyavasaya Co-Operative Society Ltd v. Sankaran Namboothiri Ramachandran Namboothiri [ 2025 (1) KLT 487 ] to substantiate the point that when legal possession is with the defendant, a suit for a mandatory injunction could not be maintainable to evict him.

6. On the other hand, the learned counsel for the contesting respondents contended that the 2^nd defendant does not have a case that the 1^st defendant/her husband is having any right over the plaint schedule property. In view of the Section 17 (2) of the DV Act, it is clear that the aggrieved person can be evicted in accordance with the procedure established by law. It is well settled by the decision of the Hon'ble Supreme Court inArchana Goindi Khandelwal v. Rajesh Balkrishnan Menon and Others [ 2022 (2) KHC 540 ] that the dispute between husband and w