ADIL PESTONJI ELAVIA Vs. FEROZE PESTONJI ELAVIA

JUDGEMENT

(1.) RESPONDENT absent. None present for him. The petition pertains to the year 1988. Therefore, treating the respondent as ex parte, this petition is being heard.

(2.) THE suit property is a tenement in Cusrow Baug situated in Colaba area owned by R. N. Wadia Trust. In the year 1971, as the record shows, the respondent Feroze Pestonji Elavia had applied to get the said tenement as licensee by submitting an application in which it was specifically mentioned that he was to reside in the said tenement along with his mother and brother Adil who happens to be the present petitioner. Three of them i. e. respondent No. 1, the present petitioner and their mother resided in the said tenement till 1973 but on account of the marriage of Firoze (respondent 1), his wife entered in the family but unfortunately she was not able to have good relations with mother-in-law. It may be also that the mother-in-law was not able to have good relations with daughter-in-law. The result was one and the same that there were quarrels between the family separating the petitioner and his mother on one side and Firoze and his wife on the other side. For about four years, the petitioner and his mother resided in Malcom Baug at Jogeshwari. Firoze and his wife had gone to Iran and during his absence, the present petitioner and his mother were staying in the suit premises. After finding that the atmosphere in Iran was not favourable for residence, Firoze and his wife returned back and again quarrel started revolving around the said suit premises.

(3.) FIROZE contended that he happens to be a statutory tenant of the suit tenement. Same is the contention of Adil, the present petitioner. The matter went to the Small Causes Court where the trial Court decided that issue in favour of Firoze holding that he alone was the statutory tenant of the suit tenement. The trial Court held that present petitioner Adil went to Malcom Baug, Jogeshwari to stay along with his mother, which was his act of abandoning the suit premises and abandoned his rights as tenant in respect of the suit premises. The trial Court held that the application was preferred by Firoze for getting the suit tenement on licence and when the suit tenement was allotted to his name, he acquired the right of licensee initially for residing in the suit tenement along with his brother and mother and they were strengthened in the right of tenant on account of his status being converted into deemed tenant. The trial Court held that the documentary evidence was showing all along that the said tenement was initially allotted to Firoze as licensee and thereafter by process of law Firoze became the deemed tenant of the said tenement. The learned trial Court dismissed the claim of the present petitioner as co-tenant of the said tenement and passed a decree in favour of the present respondent allowing him to evict the present petitioner. The said judgment and decree was confirmed in appeal by Division Bench of the Small Causes Court and both the judgments are being assailed by this writ petition.