The court upheld the Family Court's decision that the husband failed to prove his ownership claim over the flat, affirming the wife's entitlement to damages for unauthorized occupation.

JUDGMENT :

SHOBA ANNAMMA EAPEN, J.

The husband is the appellant. The original petition was filed by the husband claiming a decree for declaration, mandatory injunction and prohibitory injunction.

2. For the sake of convenience, the parties are referred to as, “husband”, “wife” and “builder”.

3. The marriage between the parties was solemnized on 26.02.1984. Three children were born in their wedlock. The marriage was dissolved on 21.03.2001 by the Sharjah Federal Court of First Instance. Originally, the husband instituted a suit before the Additional Sub Court, Ernakulam, for the same reliefs as in the present original petition. A counterclaim was also filed by the wife. The parties adduced evidence. After adducing evidence, on 22.01.2010, the original petition filed by the husband was allowed and the counterclaim was disallowed. The said judgment was challenged before this Court in RFA No. 226 of 2010. This Court set aside the judgment dated 22.01.2010 holding that the Sub Court has no jurisdiction to try the matter and accordingly, directed the Sub Court to return the plaint. Accordingly, the plaint and the counterclaim were re-presented before the Family Court, Ernakulam. The records were called for. The parties did not adduce any fresh evidence. Thereafter, the Family Court, after an elaborate consideration of the issues, dismissed the original petition filed by the husband and allowed the counterclaim filed by the wife.

4. The issue centers around a flat booked in the project of the builder, Pioneer Shopping complex Ltd. According to the husband, he had booked a flat in the project of the builder at Marine Drive, Ernakulam, in the name of the wife in 1993; and for the construction and completion of the flat, he had paid the entire sale consideration in instalments, out of his hard earned money in Dubai. He was in Dubai for the past 30 years and the entire amount was paid through ANZ Grindlays Bank and also by effecting payment directly. He alleged that the wife had not spent any amount for purchasing the flat and she was only a namelender and was not having any independent income. It was the case of the husband that the records of the builder would show that the entire amount was paid by the husband. Their marital relationship got strained and they were residing separately and thus, they obtained a decree of divorce from Dubai. The husband claimed that the property tax and maintenance charges are being paid by him and a telephone is also installed in the flat in his name. Though a letter was issued to the builder to register the flat in his name, no reply was received. He apprehended forceful eviction by the wife from the flat. Hence, he filed a petition claiming a decree for declaration to the effect that he had paid the entire purchase value for the petition schedule flat and he is entitled to get it registered in his name. He also sought for a decree of mandatory injunction, directing the builder to transfer the title and ownership in his favour by registering a document. Further, he claimed a decree for permanent prohibitory injunction, restraining the wife and her men from forcibly evicting him from the flat.

5. The wife filed a written statement through the power of attorney holder, who is her son. The first contention raised by the wife is that in the original petition, the husband had shown an address, which was not in existence. At the time of filing the original petition, divorce was already granted and still he addressed her as wife in the original petition. The wife further contended that he used to abuse and assault her in public; he was involved in criminal activities and was arrested on many occasions; and he never took care of the wife and the children. According to her, she was working at Sharjah and was a resident therein; the husband did not spend any amount for purchasing the flat; the same was booked by the wife; all payments were made by her; the allotment of flat and car parking were in her name; only the r