JUDGMENT
P.S. Sawant, J.
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 This permission granted to the respondent had to be withdrawn in the years 1968, when her sister and her family members wanted to move in the suit premises till they obtained a suitable accommodation of their own.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 applicant’s 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 applicant’s 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 lawyer’s 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 :—
(1) Whether the respondent proves that the suit premises are owned by him and the applicant is merely the benamidar ?
(2) Whether the applicant proves that the suit premises are given to the respondent under her leave and licence ?
(3) Whether the leave and licence is revoked ?
4. It is not clear as to why the three issues were raised since there was no point raised with regard to the revocation of the licence. However, the trial Court on the evidence led before it, came to the conclusion that the respondent had failed to prove that the suit premises was taken as benami in the name of applicant and that the respondent was merely a licensee in respect thereof. The Court also came to the conclusion that the leave and licence granted in favour of the respondent was properly revoked and, therefore, the application was maintainable. The trial Judge came to the conclusion that the leave and licence was properly revoked and there was no other defence raised to the Ejectment Application. The trial Court passed the impugned order, allowed the application and directed the respondent to vacate the suit premises on or before 8th August, 1975. It is this order which is been challenged in this writ petition.
5. Mr. Gursahani, the learned Counsel appearing from the respondent-husband, who is the petitioner hear, made two submissions. His first submission was that finding given by the learned trial Judge that the transaction was not benami was incorrect and the surrounding circumstances which were brought on record show that the applicant could not have purchased the suit premises by her own money. On the other hand, the circumstances show that the money would have come from the husband. Apart from that the finding recorded on the said issue is a finding of fact and it is not open to this Court for exercising the jurisdiction under Article 226 of Constitution to interfere with the said finding. I am satisfied after going through the entire evidence on record that the finding recorded by the trial Court dies not suffer either from any error of law or from non-application of mind to the evidence of record. The trial Court has carefully gone through the evidence on the points raised by both the parties and has come to its conclusions on various grounds. The main ground given by the trial Court for upholding that the wife had purchased the flat by her owner money is as follows :—
The suit premises was admittedly booked with the builder in 1966. The possession was obtained in January 1967, i.e. about two years prior to the marriage which took place on 17th February, 1969. The wife was serving as Steno since 1956 and she had no dependants to maintain, with the result that her salary was available for her own use. The various accounts in the banks in her name showed that moneys were lying to her credit and she had successfully proved that the moneys paid to the builder were drawn from her own account. The source of money paid by her was either of her own income or the loans taken from her relations. The loan taken by her were also proved by examining the persons who had advanced her the same.
6. As against this, the husband had shifted his ground from time to time in the witness box. There were dependants on him and the entire salary was not available to him for his own use. He had first pleaded that the entire amount which was paid for the flat or the suit premises had come from his income. Thereafter he shifted the ground and stated that the amount came through the loans given by his father. However, he was unable to prove the income of his father. He had also not examined his father, although he was doing diamond business in Bombay. The evidence, further shows that the father had not paid any income-tax at any time. The trial Court while coming to the conclusion relied upon the fact that from January 1967 the husband was occupying the flat as a licensee of the wife and that he had quitted the flat since the wife’s sister and her family member wanted the said premises for their own use. He came to the suit premises again only because of the permission granted by the applicant. The trial Court also relied upon the fact that there was nothing wrong for the respondent in taking the flat in the joint names viz., of himself and of the wife, if really moneys were advanced by him for the purchase of the flat and that he did not want to disclose the source of income which was the contention raised in the trial Court. For all these reasons the trial Court held that the husband had failed to prove that the suit premises were taken benami and that the applicant had made out a sufficient case that the suit premises was purchased by her from her own money and not from the money of the husband. I am in complete agreement with the said finding and I find that the said finding does not suffer from any error of law apparent on the face of the record. Hence no interference is needed with the said finding.
7. Mr. Gursahani then contended that the applicant’s application as filed was not maintainable under section 41 of the Presidency Small Cause Court Act, 1882 since there was no valid revocation of the licence. In this connection he relied upon the fact that in the notice dated the 12th July, 1972, revoking the licence as well as in paragraphs 3 and 4 of the application, the case made out by the applicant was that there was a licence created in favour of the respondent in the year 1967 and it was this licence which was revoked by the said notice. However, as transpired in the evidence, the licence created in 1967 was already revoked when the applicant’s sister and her family members came to reside in the said premises. It was, therefore, the licence created in the year 1967 after the applicant’s sister and her family members left the suit premises. Mr. Gursahani also further pointed out that even this licence did not subsist after the parties’ marriage on 17th February, 1969 and both of them resided in the suit premises from February 1969 till October 1969. Since the application has been filed on the footing that the licence was revoked and there was no case made out that the licence, if any, granted on and November 1969, was not yet revoked the application was not maintainable under section 41 of the said Act. Now I find it difficult to accept these two contentions, firstly that no such point was ever raised before the trial Court and that there was no revocation of the licence at all on the ground that the licence of 1967 was already revoked and fresh licence was granted in the year 1969. The applicant had, therefore, no opportunity in the case nor the Court had an opportunity to give a finding on the said issue. This is a mixed question of law and fact and, therefore, it cannot be raised for the first time in this petition. However, even assuming that a fresh licence should have been created from November 1969, when the applicant left the suit premises and the respondent continued to occupy the suit premises. I am of the view that notice dated 12th July, 1972, revoking the licence should be construed liberally in the present case. The notice itself mentions all the facts with regard to the manner in which the respondent came to occupy the suit premises prior to the marriage and continued to occupy the same after the marriage and even after she left the premises on account of her strained relations with the respondent. Therefore, the notice proceeds to state that the applicant was revoking the licence and calling upon the petitioner to quit and vacate the premises within seven days of the receipt of the said notice. What is more, by the said notice, she has also called upon the respondent to pay compensation from November 1969 till he removed himself from the suit premises. The facts which are pleaded in the application also run on the same lines and the evidence given by the applicant in the case is in furtherance of the allegation made in the said notice and the said application. Construed liberally, therefore, the said notice is to be construed as a notice for revocation of licence which was created November 1969, i.e. from the date the applicant ceased to occupy the suit premises with the respondent. Assuming, therefore, that there was an implied licence granted in November 1969. I am of the view that the notice given in July 1972 should be deemed to be a notice revoking the said licence created in November 1969. It must further be remembered that for the maintenance of the application under section 41 of the said Act, all that is necessary is that there was a licence created and that the same was revoked. If it is otherwise established that the licence was duly revoked then there was no impediment for the maintenance of the said application. For all these reasons, I am satisfied that there is a valid and proper revocation of the licence and the application was maintainable.
8. There was no other contention raised in this petition. The petition is, therefore, dismissed. The rule granted is discharged with costs.
9. The petitioner is given four weeks’ time to vacate the suit premises as per the order of the lower Court.