JUDGMENT

The plaintiff is the appellant in this Second Appeal. The case of the plaintiff is that he is the owner of the suit property and he purchased the same by virtue of a sale deed dated 13.8.1989. Thereafter the plaintiff had constructed a two-storeyed building and the house tax was also assessed in his name.

2.The further case of the plaintiff is that he married the defendant in the year

1996 and there were two children out of the said wedlock. At the time of filing this suit, the daughter was aged about 12 years and the son was aged about 10 years. Unfortunately the marriage was dissolved by a decree of divorce dated 8.8.2007 in H.M.O.P.No. 43 of 2007.

3. It is stated that there are three portions in the suit property. Two portions are in the ground floor and one portion is in the first floor. Even after the marriage was dissolved, the defendant continued to occupy the first floor of the suit property. It seems that the presence of the defendant was giving rise to certain untoward incidents. A legal notice was issued to the defendant to vacate and handover possession of the first floor that was occupied by her. Since the defendant did not act upon this notice, the suit came to be filed for the relief of mandatory injunction directing the defendant to vacate the first floor of the suit property and to handover possession to the plaintiff.

4.The defendant filed the written statement and took a defence that she was residing in the property along with her children and she is taking care of them. The defendant has claimed right of residence in the suit property and has also questioned the maintainability of the suit for non-joinder of necessary and proper parties since the children were not added as parties in the suit.

5. Both the courts below on considering the facts and circumstances of the case and also the oral and documentary evidence, concurrently held in favour of the defendant and dismissed the suit. Aggrieved by the same, the present Second Appeal has been filed before this Court.

6. The following substantial questions of law were formulated by this Court:

a) Whether the defendant who was the erstwhile wife of the plaintiff and whose marriage was annulled by a judgment passed by a competent Court, has a right to hold on to a property which belongs to the plaintiff husband in her capacity as the divorced wife ?

b) Whether the suit is bad for non-joinder of the children of the appellant who were also in occupation of the suit property along with the divorced wife?

7. The learned counsel for the appellant submitted that the defendant lost her status as the wife of the appellant immediately after the decree for divorce was passed by a competent court and the marriage stood dissolved. The learned counsel further submitted that the defendant does not have any legal right to continue to occupy the property since the decree of divorce did not grant her any right of residence nor any maintenance was ordered in her favour. The learned counsel further submitted that the defendant filed a petition to condone the delay in setting aside the ex-parte decree of divorce and the same was dismissed and it was subsequently confirmed by this Court in C.R.P. No. 2821 of 2012 , by order dated 16.8.2017.

8. It was further submitted that the plaintiff is the natural guardian for the children and the plaintiff wanted to maintain the children in the same property. Therefore, they have nothing to do with the present dispute and the children are neither necessary nor a proper party in the present proceedings. The learned counsel in order to substantiate his submissions, relied on the judgment of the Hon’ble Supreme Court in Ranjit Kaur Vs.

Major Harmohinder Singh and Others reported in (2012) 3 MLJ 831 (SC). 9.Per contra, the learned counsel for the respondent submitted that the present suit was filed seeking for the relief of mandatory injunction simpliciter. Therefore equity plays a vital role in the present case and both the courts below rightly appli