:1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION SUIT SUIT SUIT NO. 1056 OF NO. 1056 OF NO. 1056 OF 2003 2003 2003 Mrs. Brudget D’Souza (Since deceased) Mr. Agnelo D’Souza & Ors. ... Plaintiffs. V/s. Dorothy Anthony D’Souza. ... Defendant. Mr. Devendra Sharma for the Plaintiffs. None for the Defendant. ..... CORAM CORAM CORAM : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. 26TH 26TH 26TH FEBRUARY 2009. FEBRUARY 2009. FEBRUARY 2009. ORAL ORAL ORAL JUDGMENT :- JUDGMENT :- JUDGMENT :- . On the last two occasions when the matter was placed before me, I had observed that if the Defendant desires to lead evidence and therefore, must step into the box, he will be permitted to do so. The order was passed on 19th November 2008 granting an opportunity to the First Defendant to lead evidence. However, that opportunity was not availed off and therefore, the right of the Defendant to lead evidence stood forfeited. 2. On 3rd December 2008, I had noted that the First Defendant was absent. She has not taken the benefit of the order passed on 19th November 2008. Plaintiff No.1 has expired and her heirs are already brought on record. Therefore, I had permitted Mr. Sharma to approach the Commissioner for recording evidence and request the said :2: Commissioner to place on record the evidence recorded till date. The report of the Commissioner was to be forwarded alongwith the record and that is why the matter was adjourned. Subsequently, on 20th January 2009, I was informed that the report of the Commissioner is duly received. From a perusal of the report and the Roznama, it is apparent that the First Defendant has not taken part in the proceedings after cross examining the Plaintiff. 3. It is in such circumstances, that I permitted Mr. Sharma to argue the matter by relying upon the available material. Mr. Sharma has argued the matter and also tendered his Written Submissions. Although, the name of the Defendant and her Advocate duly appears on Board, none has been appearing since 19th November 2008. The matter was partly heard on 10th February 2009 and 11th February 2009 and is now placed for Judgment. 4. Mr. Sharma, learned Counsel appearing for the Plaintiffs contended that this is a Suit filed by the Plaintiffs for recovery of possession of an immovable property. The Original Plaintiff No.1 was the mother of Plaintiff No.2. She expired on 12th June 2008 and Plaintiff Nos.1(a) to 1(c) are her Legal Representatives. The Plaintiffs purchased a flat at Andheri, which is more particularly described in para 2 of the plaint, on 4th January 1980. The Co-operative Society, thereafter, issued a Share Certificate bearing No.45 dated 3rd October :3: 1983 which is the document of title, according to Mr. Sharma. 5. It is stated that Plaintiff No.2 was working abroad at Dubai and he purchased the property from his income generated abroad. Prior to working at Dubai, Plaintiff No.2 was working with Geoffrey Manners & Co. The Defendant was also then working. They came to know each other. At a common function, the Plaintiff No.2 proposed marriage to the Defendant. The Defendant did not inform the Plaintiff that she is already married to one Romeo Eustene D’Souza. Plaintiff No.2 and the Defendant got married on 18th February 1980 under Special Marriage Act. Thereafter, Plaintiff No.2 went back for service abroad. 6. Thereafter, he came to know about the illicit relations between the Defendant and the said Romeo D’Souza. Therefore, Plaintiff No.2 filed M.J. Petition No.255 of 1987 on 25th February 1987, praying that the marriage between him and the Defendant be dissolved by a Decree of Divorce. The marriage was nullity according to him. 7. The City Civil Court at Bombay also permitted Plaintiff No.2 to apply for interim relief and granted an interim injunction so as to preserve and protect the subject matter of this Suit. Subsequently, the M.J. Petition was decreed on 12th February 1988 exparte. The :4: Defendant applied for setting aside the ex-parte order and decree. The ex-parte decree was set aside and again the Marriage Petition was heard by the City Civil Court. Finally, an order dated 27th July 1989 was passed declaring that the marriage is null and void ab-initio. 8. The Plaintiff has stated that the Defendant, therefore, has no right, title and interest in the flat. She ceased to be his wife. Once the relationship of husband and wife has come to an end, then, she is a tress passer in the suit flat. Earlier, the Plaintiff approached the co-operative Court which granted his claim. However, the Defendant appealed to the Co-operative Appellate Court which reversed the Judgment of the Co-operative Court and held that the Co-operative Court has no jurisdiction to entertain the dispute claiming the eviction of the Defendant. The Co-operative Appellate Court order was challenged by the Plaintiffs by filing Writ Petition bearing Writ Petition No.3953 of 1992 in this Court which was dismissed by this Court on 12th July 2002. This Court granted liberty to the Plaintiff to initiate appropriate proceedings. Accordingly, this Suit for declaration of title and possession has been filed. 9. Mr. Sharma has invited my attention to paragraphs 9 to 16 of the plaint and contended that the plea set up in the plaint is duly proved. This is a clear case where once the marriage has been dissolved and the Plaintiffs :5: are owners of the property, then, the Defendant has no right to occupy and use the suit flat, as she is a rank tress passer. 10. Mr. Sharma has invited my attention to the affidavit in evidence filed on behalf of the Plaintiff. Plaintiff No.2 - Anthony John D’Souza has stepped into box and reiterated the plaint averments. He has produced the documents of title. He has produced the Agreement for Sale and the Share Certificate No.45 issued on 3rd October 1983 which clearly certifies that the shares (5) bearing Distinctive Nos. 221 to 255 of Rs.50/- each in Mayur Apartments of Mayur Co-operative Housing Society are held by the Second Plaintiff. His name is entered in the members register at Sr. No.61. By virtue of this Share Certificate, the Plaintiff is entitled to use and occupy the suit flat. The particulars with regard to payment of maintenance and other sums have also been proved by producing the receipts. Mr. Sharma has invited my attention to paragraph 5 of his Examination in chief wherein he has stated very clearly that the purchase consideration was paid in instalments by cheques which are issued from his Saving Bank Account No.169332 with the Bank of India, Museum Branch. Original Counterfoils are produced. The Bank passbook is also produced. The Receipt No.188 dated 4th January 1980 are Receipt No.52 dated 25th August 1980 acknowledging payment by the developer/builder are also produced and proved. After :6: registration of the Society, Plaintiff No.2 has pointed out that the bills were raised in his name although, shares were in the joint names of Plaintiff Nos.1 and 2. The entire payment which has been forwarded by him by cheques has also been proved. He has proved issuance of original certificate. Thus, he has proved his title according to Mr. Sharma. Further, Mr. Sharma has invited my attention to paragraphs 10 to 13 of the Examination in Chief, whereby, the plaint averments with regard to the marriage with the Defendant and its dissolution are proved. The Decree of the City Civil Court, Bombay dissolving the marriage is also placed on record. 11. Each of these documents have been duly taken on record and marked in evidence. 12. It is not as if the Defendant had no opportunity to controvert the case of the Plaintiff. She filed her Written Statement duly engaged an Advocate and after the issues were framed, participated in the proceedings. The Commissioner’s Report shows that the Defendant’s Advocate appeared for cross-examination before earlier Commissioner so also before the Commissioner, who has forwarded his report (Mr. N.R. Jagtap). It is clear from a perusal of the Cross-examination that the original Agreement is proved (see Questions 12 and 13). It has also clear that possession of flat was given to her on 4th January 1980. :7: That is the answer but immediately the Defendant gave a suggestion to the Plaintiff that the Flat was taken from the builder on 21st January 1981 and he denies that suggestion. The Plaintiff pointed out that both the Plaintiffs and the sister of PW-1 Linda accompanied the Defendant while booking the flat. Even the receipts were shown to the Plaintiff in his cross-examination. Question No.25 reads thus :- "Que.25. Is it correct to say that the Defendant entered the suit flat in her capacity as your wife ? Ans. Yes." 13. This is not a cross-examination of the wife but is a cross-examination of Plaintiff No.2 (PW-1) who has filed the suit for possession of title. If this is the cross-examination, then, it is an admitted case that on account of the marriage, the Defendant occupied the flat. She occupied it as a wife of Plaintiff No.2. She has asked him about the sum. She has also asked few questions in regard to the first marriage and the Issue from the same. The entire cross-examination has been perused by me with the assistance of Mr. Sharma. The Answers to Questions 44 to 50 would reveal that the Defendant is aware that the flat has been acquired by Plaintiff No.2 from his income. Each of the documents which have been :8: placed on record are admitted. There is no dispute raised with regard to the documents of title. 14. Therefore, the pleas set up in the plaint stand proved according to me. The Written Submissions tendered by Mr. Sharma refer to each of the above mentioned facts. I am in agreement with Mr. Sharma that the Plaintiffs have duly discharged the burden cast on them. Issue Nos.2, 4, 7 and 8 are framed casting a burden on the Defendant. Beyond filing Written Statement and Cross-examining the Plaintiffs, the Defendant has done nothing. She has not disputed the right, title and interest of the Plaintiffs. She has not disputed that the maintenance charges and expenses incurred are paid by Plaintiff No.2. Having not entered into the witness box and not disputing the marriage and dissolution thereof, in my view, it is clear that the Defendant has no right, title and interest in the Suit flat. 15. The case of the Plaintiffs deserve acceptance. The Suit is accordingly decreed and it is declared that the Plaintiffs are the owners of Flat No.D-9, admeasuring 403 Sq.Ft., 2nd floor, Mayur Apartments, Mayur Co-operative Housing Society Ltd., Marol Maroshi, Andheri (East), Mumbai. It is also declared that the Defendant is a tress passer in respect of this property. There will be a decree directing the Defendant to quit, vacate and hand over vacant and peaceful possession of the flat to the :9: Plaintiffs. The Suit is decreed in terms of prayer clauses (a) to (c). Mr. Sharma does not press prayer clause (d) of the plaint. There will also be a permanent injunction in terms of prayer clauses (e) and (f). Advocates costs to be computed as per Rules. Decree be drawn accordingly. All concerned to act on authenticated copy of this order. (S.C. (S.C. (S.C. DHARMADHIKARI,J.) DHARMADHIKARI,J.) DHARMADHIKARI,J.)