T T NICHANEY Vs. OLGA NICHANEY

JUDGEMENT

(1.) By this Petitioner filed under Article 227 of the Constitution of India, the petitioner challenged the order dated 8th July, 1975 passed by the Small Cases Court, Bombay in Ejectment Application No. 98/491/E of 1972.

(2.) This is a dispute between the husband and wife in respect of a flat being Block No. 12 situate at Meena Sadan, 2nd Floor, Govandi, Chembur, Bombay-71 in a Co-operative Housing Society (the said flat is hereinafter referred to as the suit premises). The suit premises admeasures 630 sq. ft. in area and the purchase price on the same was Rs. 18,690/-. The suit premises become ready for possession in January 1967, although it was booked in 1966. Admittedly the applicant-wife had booked this premises in 1966, she had obtained possession of the some in January 1967. Admittedly further the entire purchase price of Rs. 18,690/- was paid prior to January 1967. The Application and respondent become friendly since the years 1961 and they ultimately got married on 17th February, 1969. As stated earlier, the flat was purchased about two years prior to the said marriage. Since the parties were on friendly terms on each other prior to marriage, after obtaining the possession of the flat in January 1967, according to the applicant, she permitted the respondent to stay in the suit premises since the respondent had a very small accommodation elsewhere. This permission granted to the respondent had to be withdrawn in the years 1968, when her sister and her family members wanted to move in the suit premises till they obtained a suitable accommodation of their own. For the period for which the applicants sister and her family members resided, the respondent was, therefore, out of the premises and he was got inducted in the premises at his own request after the applicants sister and her family members left the premises. Thereafter the marriage between the parties took place on 17th February, 1969. Soon after the marriage the relations between the parties were strained with the result that the applicant-wife left the premises and went and stayed with her parents. This was sometime in the latter part of October 1969. The respondent continued to occupy the premises and paid the maintenance charges as well as the electricity and other charges in respect of the said premises. This continued till 12th July, 1972 when the applicant-wife revoked the licence in respect of the said premises by her lawyers notice and filed a present Special Civil Application under section 41 of the Presidency Small Causes Court Act, 1882 (hereinafter referred to as the said Act) prohibiting the respondent-husband from entering the suit premises.

(3.) At the trial, it was contended by the respondent-husband that the suit premises were purchased benami by him in the name of the applicant-wife and that he was the true owner of the same and, therefore, the application filed for evicting him from the suit premises was illegal and mala fide. He also, therefore, disputed that there was any licence created in his favour and submitted that he was occupying the suit premises in his own right as an owner thereof. On this pleadings of the parties the trial Court framed three issues :---