IMPORTANT POINT
Right to reside in shared household – Question of title or proprietary right in property is not at all of relevance when provisions of DV Act.

JUDGMENT

This revision application is directed against the judgement and decree dated 4th May, 2022 passed by the Appellate Bench of the Court of Small Causes at Bombay in P. Appeal No.398 of 2019, whereby the appeal preferred by respondent No.1 against a judgment and decree passed in LE Suit No.36/42 of 2013 came to be allowed by setting aside the said judgment and decree, and directing the applicant –defendant No.2 to hand over clear and vacant possession of Room No.40, 3rd Floor, Rishikesh Bhavan, Parel, Mumbai, (“the suit premises”) to respondent No.1.

2. The dispute between the parties has its genesis in matrimonial and familial discord. For the sake of convenience and clarity, the parties are hereinafter referred to in the capacity in which they were arrayed before the trial Court.

3. Pushpaben - the plaintiff is the mother of Jitesh (D1). Aarti (D2) - the applicant is the estranged wife of D1. Popatlal Modi the husband of plaintiff and father of D1 was the tenant in respect of the suit premises. Popatlal passed away on 25th November, 1986, leaving behind plaintiff, defendant No.1, another son Jayesh and a daughter Bhavna.

4. The plaintiff asserted, in the year 2005, Jitesh (D1), Jayesh and Bhavna relinquished their tenancy rights in the suit premises in favor of the plaintiff. Thereupon, the plaintiff became the sole tenant in respect of the suit premises and, thereafter, the landlord had issued the rent receipts in favour of the plaintiff alone.

5. Since the marital life of the defendant Nos.1 and 2 was afflicted with discord and there were frequent quarrels, and the premises which was in the occupation of the family, at Dadar was insufficient, defendant Nos.1 and 2 were allowed to occupy the suit premises as gratuitous licensee. In the year 2013, the defendants, however, raked up quarrels with the plaintiff and exerted pressure on the plaintiff to transfer the tenancy qua the suit premises in favour of defendant No.2 purportedly with a view to settle the claim of defendant No.2 in the matrimonial proceedings. Thus, the plaintiff called upon the defendants to vacate the suit premises and hand over the possession thereof to the plaintiff. As the defendants did not accede to the request of the plaintiff, she was constrained to institute the suit to recover possession of the suit premises and the consequential reliefs.

6. The defendant No.1 did not contest the suit and, thus, it proceeded without written statement against defendant No.1.

7. The defendant No.2 stoutly resisted the suit. After referring to the historical facts about the tenancy qua the suit premises, defendant No.2 contended that she had been in use and occupation of the suit premises since 1999. As the premises of the family at Dadar was found insufficient to accommodate all the family members of late Popatlal, she and Jitesh (D1); her husband, shifted to the suit premises and were residing together therein. It was denied that the tenancy was exclusively transferred to the plaintiff under the affidavit affirmed by the sons and daughters of late Popatlal, dated 7th July, 2005. Refuting that defendant No.2 is a gratuitous licensee, it was contended that defendant No.2 has been in the occupation of the suit premises in her own right. It was alleged that in the wake of the matrimonial disputes, the suit has been instituted by the plaintiff in collusion with Jitesh (D1) with an oblique motive to evict defendant No.2 from the suit premises.

8. The learned Civil Judge recorded the evidence of the plaintiff (PW1) and her another son Jayesh (PW2). In the rebuttal, defendant No.2 (DW1) entered into the witness box.

9. After appraisal of the evidence and the documents tendered for his perusal, the learned Judge, Court of Small Causes, was persuaded to dismiss the suit holding, inter alia, that the plaintiff failed to establish that defendant No.2 was a gratuitous licensee and that the alleged surrender of tenancy by Jitesh (D1), the husband of D2, was with an intent t