1 28 cra.624.11 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 624 OF 2011 Parvesh Swaraj Mitra Sagar. ... Applicant Versus Vinod Kumar Swaraj Mitra Sagar. ... Respondent ----- Mr. V.K.Sharma for the Applicant. Mr. G.S.Sabnis for the Respondent. ----- CORAM : A.S.OKA, J. DATE : 20 th December, 2011. P.C. 1 Heard the learned counsel appearing for the Applicant. 2 The Applicant is the original Defendant and the Respondent is the original Plaintiff. The Respondent filed a suit for ejectment under Section 41 of the Presidency Small Cause Courts Act, 1882 against the Applicant in respect of the suit flat. The flat is in a Co-operative Housing Society. The case of the Respondent is that he was an employee of Himachal Pradesh Electricity Board at Simla and in the year 1976 his employer granted a loan of Rs.30,000/- for construction of 2 28 cra.624.11 a house on the land purchased by him. According to the case of the Respondent, on his request, the order sanctioning loan was modified by the Electricity Board and on 7 th August, 1979, the Board passed a new order transferring the loan for purchase of a readily built house in Mumbai. The Respondent relied upon an agreement for sale dated 28 th October, 1978 in respect of the suit flat executed by the builder in his favour. It is stated that initially, the agreement was in respect of the Flat No.D-6. However, subsequently, subject to payment of additional amount of Rs.2,000/-, the builder allotted the suit flat to the Respondent. The details of the payment made by the Respondent to the builder have been set out in the plaint. 3 The case of the Respondent is that he repaid the loan and interest thereon to the Electricity Board from 1980 to 1990. It is stated that the Respondent was sent on deputation to Bhutan for the period from 1979 till March 1984. It is the case of the Respondent that various household articles were brought by the Respondent. It is alleged that the Respondent executed a Power of Attorney in favour of the Applicant 3 28 cra.624.11 to attend the General Body Meeting of the Society and to pay the dues as the Respondent was away for the purpose of employment. It is alleged that the Applicant was residing in a flat purchased in the name of the mother of the parties at Mulund (West) Mumbai. The case of the Respondent is that in the year 1980, the Applicant requested to allow him to stay in the suit flat as he was working in the Film Industry and he was finding it difficult to travel everyday from Mulund to Film City at Goregaon. It is the case of the Respondent that he allowed the Applicant to stay in the suit premises. It is alleged that the Respondent allowed the Applicant to stay in the suit premises on the understanding that the charges of electricity consumption should be borne by him. The Respondent relied upon the share certificate issued by the Society in his favour. 4 In the year 1991, the Respondent decided to take voluntary retirement and to move to Mumbai. Therefore, he requested the Applicant to vacate the suit flat. It is stated that the Applicant from time to time assured the Respondent that he would vacate the suit flat. 4 28 cra.624.11 Lastly he promised to vacate the suit flat in the year 2002. However, in the year 2002, a request was made by the Applicant to the Respondent to grant further time. 5 The case of the Respondent is that in September, 2006, he shifted to the suit flat and started exclusively using the bedroom therein and rest of the portion of the suit flat was used by him in common with the Applicant. As the Applicant refused to remove himself, an Advocate's notice was issued calling upon him to vacate and thereafter, the present suit was filed in the year 2007. The suit was filed on the ground that the Applicant was a gratuitous licensee. 6 In the written statement, the case made out by the Applicant is that the flat situated at Mulund was sold in the year 1978 at the instance of the father of the Applicant for fulfilling the joint family necessity. It is stated that at that time, the father of the Applicant instructed the Applicant to occupy the suit flat as it was purchased for family use. It is alleged that the sale proceeds of the flat at Mulund 5 28 cra.624.11 were utilized in such a manner that an amount of 50% of the sale proceeds was retained by the father of the Applicant and the balance amount of sale proceeds was used towards improvement of the suit flat. Reliance is placed on the ration card and the election identity card obtained by the Applicant at the address of the suit premises. It is contended that in February 2006, the Respondent attempted to forcibly dispossessed to the Applicant. 7 The trial Court decreed the suit for ejectment by holding that the Applicant was a gratuitous licensee of the Respondent in respect of the suit flat. The Appellate Court has confirmed the decree. 8 The submission of the learned counsel appearing for the Applicant is that the Respondent failed to prove the source from which he paid the amount towards the consideration of the suit flat. He submitted that as there was no evidence adduced by the Respondent to show that the flat was purchased by him by paying his own amount towards consideration, the case of the Applicant that it was a joint family 6 28 cra.624.11 property will have to be accepted. He submitted that the amount of sale proceeds received from the sale of flat at Mulund was utilized for the purposes of suit flat. He, therefore, submitted that the case that the suit flat was purchased for the benefit of the joint family ought to have been accepted by the Courts below. 9 I have given careful consideration to the submissions. I have perused the findings of the Courts below. In paragraph No.27 of the judgment, the Appellate Court has noted that the Applicant admitted that initially an amount of Rs.20,000/- was paid by the Respondent out of the total consideration of the suit flat. The Appellate Court noted in the same paragraph that the Applicant admitted that the Respondent availed a loan from his employer. He also admitted that the first and the last amount / installment was paid by the Respondent to the Builder. A letter issued by the Senior Accounts Officer of the Himachal Pradesh Electricity Board, Simla was produced at Exhibit – 35 recording that the Respondent has repaid the loan. The learned trial Judge observed that in view of the admissions of the Applicant that the Respondent had 7 28 cra.624.11 availed the loan from his employer, it was not necessary to examine any officer of the Electricity Board to prove the letter at Exhibit – 35. The suit flat admittedly stands in the name of the Respondent and even the share certificates of the Co-operative Housing Society also stand in the name of the Respondent. In paragraph No.29 of the judgment, the Appellate Court has held that the Applicant had admitted in the cross- examination that he does not have any documentary evidence to show that the sale proceeds of the flat at Mulund were applied towards the improvement of the suit flat. It is also an admitted fact that by a letter dated 15 th November, 1985 at Exhibit – 24, the Applicant forwarded all the original documents in respect of the suit flat to the Respondent who was at Simla. There are concurrent findings of the Courts below based on appreciation of documentary evidence that the Respondent is the owner of the suit flat. As the Applicant failed to prove that the sale proceeds of the flat at Mulund were used towards improvement of the suit flat and as there was an admission by the Applicant regarding payment of consideration amount by the Respondent, the case of the 8 28 cra.624.11 Respondent that the Applicant was a gratuitous licensee has been accepted by the Courts below. This is not a case where interference can be made in the revisional jurisdiction under Section 115 of the Code of Civil Procedure, 1908. There is no merit in the revision application and the same is accordingly dismissed. [ A.S.OKA, J ]