:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE APPEAL FROM ORDER NO.88 OF 2008 APPEAL FROM ORDER NO.88 OF 2008 APPEAL FROM ORDER NO.88 OF 2008 WITH WITH WITH CIVIL APPLICATION NO.111 OF 2008 CIVIL APPLICATION NO.111 OF 2008 CIVIL APPLICATION NO.111 OF 2008 Niraj Rohit Oza & Anr. ...Appellants. v. Mrudula Rohit Oza ...Respondent. Mr.Nilesh B. Pawaskar i/by Mr.Samir Sarambalkar & Ms.Aparna Vhatkar , advs. for the Appellants. Mr.Sanjay Jain and Anirban Roy i/by M/s. Roy’s Law Firm , adv. for the Respondent. CORAM: CORAM: CORAM: J.H.BHATIA,J. J.H.BHATIA,J. J.H.BHATIA,J. DATE: 1st February, 2008. DATE: 1st February, 2008. DATE: 1st February, 2008. P.C. P.C. P.C. 1. Heard the learned counsel for the Parties. 2. The plaintiff/respondent is mother and the defendant no.1 and no.2 are son and daughter-in-law of the plaintiff. Defendants are the appellants before this Court. The plaintiff filed the suit on 3rd October, 2007 against the defendants contending that the suit flat no.11, second floor of Labh Nivas building is the tenanted premises. Sometimes in 1938 father-in-law of the plaintiff had first entered into the suit house as a tenant and after marriage of the plaintiff, she also began to live in the same house. After death of her father-in-law, the plaintiff, her husband, son and daughter continued to live in the suit house. Three :2: married daughters have already shifted to their matrimonial houses. After death of her father-in-law , her husband was treated and accepted as tenant in the suit house and he used to pay rent to the landlord. Defendant no.1 married the defendant no.2 in the year 2001. They also lived in the suit house. However, later on the defendant no.1 started making unreasonable demands from his father and he also began to physically and mentally harass the plaintiff as well as unmarried sister. Therefore, due to their relations got strained and Rohit Oza, husband of the plaintiff, filed report against the defendant no.1 with V.P.Road police station on July 11, 2005. Thereafter, he lodged another report with Social Service Branch on 18th July, 2005. Due to the strained relations, finally the defendant nos.1 and 2 shifted to Navi Mumbai and began to live there since January, 2006. They have taken a flat on leave and licence basis and in view of this from January, 2006, only the plaintiff, her husband and unmarried daughter were living in the suit premises. According to the plaintiff, on 16th August, 2007 her husband died and after death of her husband, defendant nos.1 and 2 forcibly entered into the suit house on 29-9-2007 and again physically assaulted and mentally harassed the plaintiff and her unmarried daughter as they wanted to take forcible possession in the house. Plaintiff lodged a report with the police on the same day and on 3rd October, 2007 she filed the suit seeking perpetual :3: injunction restraining the defendants from causing physical and mental harassment to her, from coming anywhere near her and from entering into or remaining upon the suit premises without her express consent and from taking forcible possession of the suit premises. She also sought direction against the defendants to remove themselves from the suit premises. She also took out Notice of Motion No.3379 of 2007 in the said suit seeking temporary injunction of the same nature. 3. Notice of motion was contested by the defendants/appellants contending that the suit house is the tenanted premises of the joint family. Because of certain health problems of the defendant no.2 and because of service of the defendant no.1 , they had taken a flat in Navi Mumbai on leave and licence basis for sometime. That leave and licence agreement had come to an end about 8 months prior to death of the father of the defendant no.1 and, therefore, the defendants had again come back to live in the suit house and since then they are living in the suit house. It is their contention that they looked after their father during his illness and the last days before his death. It is contended that after the death of the father, the plaintiff began to harass them and tried to remove them from the house possibly to accommodate unmarried daughter and after her marriage, her husband also. They have denied all the adverse allegations about the :4: physical and mental harassment. According to them, they have legal right to remain in the tenanted premises of the family and, therefore, they can not be removed from the house. 4. After hearing the parties, the learned trial Court rejected the contentions of the defendants and upheld the plea of the plaintiff and found that in the circumstances, it was necessary to grant temporary injunction. Accordingly, the defendants were directed to remove themselves from the suit premises within three months from the date of the order, which was passed on 3-11-2007. The defendants have challenged the said order before this Court in the present appeal. 5. In view of the admitted facts, it is clear that in 1938, father-in-law of the plaintiff and grandfather of the defendant no.1 was first inducted in the suit house as a tenant and he alongwith his son and daughter-in-law lived for a long time. After his death in 1988, his son, daughter-in-law, grandson and grand daughters also lived in the suit house. Father of the defendant no.1 died on 16th August, 2007. However, there is no denial that during the lifetime of the father, problem had started between his father and the defendant no.1 and the father had lodged reports against the defendant no.1 with police. Prima-facie, it appears that because of this problem, the relations between :5: father and son were not cordial and the son and his wife took another house in Navi Mumbai in August, 2006 on leave and licence basis and began to live there. In view of this from the time they shifted to Navi Mumbai, they were no more members of the family of their father. 6. According to the plaintiff, after death of the father of the defendant no.1, he and his wife forcibly entered into the house on 29-9-2007 and on the same day, the plaintiff lodged report against them. According to the defendants they had come back to live in the suit house about eight months prior to the death of the father because leave and licence agreement was over. However, there is no documentary evidence to show that infact they shifted to the suit house during the lifetime of the father. The learned counsel for the defendants contended that for the purpose of grant of passport of the defendant no.1, police had verified at the address of the suit premises and according to him, this is the evidence of his continuous residence in the suit premises. The passport authorities must have verified the address on the basis of entry in ration card. Admittedly, when the defendants had shifted to Navi Mumbai, their names were not deleted from the ration card held by the father of the defendant no.1. If it could be pointed out that when they had shifted to Navi Mumbai, their names were deleted and after their coming back, their names were re-entered, that could be :6: an evidence in support of the defendants. However, there is no such evidence. Taking into consideration the fact that there was no change in the address in ration card in spite of defendants having been shifted to Navi Mumbai, merely because that address was used for the purpose of passport, that can not be evidence in favour of the defendants. 7. On 29-9-2007, the plaintiff filed report with police and on 3rd October, 2007 she filed suit against the defendants. All this happened just within one and half month after the death of her husband. Admittedly, the defendant no.1 is the only son of the plaintiff. Normally after death of husband, a woman would like to be close with her children and if she has only one son, she would be more attached to him. It is impossible to believe that in such circumstances immediately after the death of her husband, the plaintiff would be interested in removing her only son and daughter-in-law from her house unless she was compelled by the circumstances. Taking into consideration the previous conduct and the circumstances in which the father of the defendant no.1 had also lodged report with the police and the fact that after the said reports, the defendants had themselves removed from the suit house. Prima-facie, it can be believed that the defendant nos.1 and 2 had left the suit house during the life time of the father of the defendant no.1 and at the time of his death, they were :7: not living in the suit house as members of the family. In view of this, prima-facie it appears that they can not claim to be tenant or joint tenant in the suit premises. 8. The suit house consists of one bedroom, one drawing room, toilet and kitchen. It is very difficult that two quarrelling families can be accommodated in the suit house. In such circumstances, claim of the plaintiff can not be said to be unjustified. Taking into consideration all the circumstances, I find no fault with the impugned order. 9. In the result, appeal stands dismissed. 10. As the appeal is disposed off, Civil Application No.111 of 2008 does not survive and stands disposed off. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)