BALKRISHNA DATTATRAYA GALANDE versus BALKRISHNA RAMBHAROSE GUPTA AND ANOTHER on 6 February 2019

[2019] 2 S.C.R. 791

BALKRISHNA DATTATRAYA GALANDE

v.

BALKRISHNA RAMBHAROSE GUPTA AND ANOTHER

(Civil Appeal No. 1509 of 2019)

February 06, 2019

[R. BANUMATHI AND R. SUBHASH REDDY, JJ.]

Specific Relief Act, 1963:

s. 38 – Suit under – Seeking permanent injunction againstthe defendant – Claiming to be in actual possession of the suitproperty being the tenant thereof – Defendant-Landlord’s casewas that there was no relationship of tenant-landlord betweenthe parties since the year 1991 when the tenant had vacated thepremises pursuant to a settlement entered in a suit – Trial courtdismissed the suit on the ground that the plaintiff failed to provehis possession – First appellate court decreed the suit holdingthat the plaintiff established his possession – High Court upheldthe order of appellate court – On appeal, held: A suit under s.38 for the relief of permanent injunction cannot be granted unlessthe plaintiff proves that he was in actual possession of the suitproperty – Trial court on appreciation of oral and documentaryevidence rightly held that the plaintiff failed to prove actualpossession over suit property – Appellate Court and High Courtwere not correct in setting aside judgment of trial court bydrawing inference of possession of the plaintiff – Suit is dismissed.

Allowing the appeal, the Court

HELD: 1. The first respondent-plaintiff has filed the suitunder Section 38 of the Specific Relief Act seeking permanentinjunction on the ground that he is in actual possession of thesuit property. Grant of permanent injunction results inrestraining the defendant’s legitimate right to use the propertyas his own property. Under Section 38 of the Specific ReliefAct, an injunction restraining the defendant from disturbing

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Apossession may not be granted in favour of the plaintiff unlesshe proves that he was in actual possession of the suit propertyon the date of filing of the suit. [Para 11][798-F, G]

2. Case of the appellant-defendant was that a settlementwas arrived at between the parties in an earlier suit filed inB1988 and pursuant to the settlement, the plaintiff had vacatedthe premises in 1991. This has not been rebutted by the plaintiffby adducing substantive evidence. The plaintiff has to provehis actual possession on the date of filing of suit. The FirstAppellate Court concluded that the appellant-defendant hadfailed to prove that the plaintiff has vacated the premises inC1991 after withdrawal of earlier suit. The possession of theplaintiff cannot be based upon the inferences; drawn fromcircumstances. The plaintiff has to prove actual possessionfor grant of permanent injunction. [Para 11][798-H; 799-A-B]

3. The trial court pointed out that on the date ofDinspection by Commissioner, the premises was not fit forconducting the hotel business. The trial court rightly rejectedthe contention of the plaintiff that he has carried out repairsafter the inspection by the Commissioner observing that thefirst respondent-plaintiff has failed to produce documents suchEas the order of the court permitting him to carry repairs,receipts of material purchase and labour charges paid etc. Fromthe photographs filed by the plaintiff, the trial court rightlyconcluded that the condition of the said premises was not atall fit for any purpose. [Para 10][798-E]F4. According to the plaintiff, he was conducting businessof hotel and Pan shop in the suit premises and also carrying onfabrication work. For running the business of hotel and Panshop, two licences are required. In his evidence, the plaintiffadmitted that he was not holding any licence. The plaintiff hadadmitted that three-phase electricity connection is requiredGfor carrying out the business of fabrication which he wasallegedly carrying on in the suit premises. But in his cross-examination, he admitted that he does not have such three-phase electricity connection at the suit premises. In the H

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absence of licence and the requisite electricity connection, thetrial court rightly rejected the plea of the plaintiff that he hasbeen carrying on business of hotel, Pan shop and fabricationwork at the suit premises. [Para 12][799-C-F]

5. Defendant’s plea that after 1991, the plaintiff was notin possession of the suit property is corroborated by theevidence of ‘S’. Based upon the evidence of the defendantand of ‘S’, the trial court has arrived at conclusion that in allprobability, the first respondent-plaintiff must have vacatedthe suit premises in the year 1991. This conclusion of the trialcourt is fortified by yet another circumstance viz., non-paymentof rent by the respondent-plaintiff from the year 1991. Thedefendant had also not initiated any proceedings claiming rentor arrears of rent. After filing of the suit in 2004, the plaintiffhas sent a cheque dated 14.05.2005 for Rs.10,395/- towardspayment of rent for 189 months thereby admitting that he hasnot paid the rent for more than fifteen years. The plaintiff hassuppressed the material fact that he has not paid the rent from1991. The trial court observed that the plaintiff has not cometo the court with clean hands and that he cannot sustain hisclaim for the equitable relief of permanent injunction.[Paras 13 and 14][799-G-H; 800-B-D]

6. The party seeking injunction based on the avermentthat he is in possession of the property and seeking assistanceof the Court while praying for permanent injunction restrainingother party who is alleged to be disturbing the possession ofthe plaintiff, must show his lawful possession of the property.Having not paid rent for more than fifteen years, it cannot besaid that possession of the plaintiff can be said to lawfulpossession entitling him to grant of permanent injunction.[Para 15][800-E-F]

7. In the earlier suit, the tenanted premises wasdescribed as only one room. In its order in the interlocutoryapplication in the present case, the trial court had pointed outthat the total area of the premises described in all the schedule A

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Ais 356 sq. ft. When the defendant decided to develop hisproperty through second respondent-builder and in that regard,a public notice was given, the plaintiff issued notice dated13.04.2000 through his advocate claiming that he was a tenantof the portion of the land measuring 1000 sq. ft. since lasttwenty two years. The objection of the plaintiff was, however,Brejected by the Corporation and layout of the proposed buildingon the said land was sanctioned by the Corporation. Thisconduct of the plaintiff also disentitles him from claiming theequitable relief of permanent injunction and these aspects werenot properly appreciated by the First Appellate Court.C[Para 16][800-G-H; 801-A-B]

8. Upon appreciation of the oral and documentaryevidence, the trial court rightly held that the plaintiff failed toprove his actual and physical possession over the suit propertyon the date of the suit. When the finding of the trial court wasDbased on oral and documentary evidence, the First AppellateCourt and the High Court were not right in setting aside thejudgment of the trial court by drawing inference of possessionfrom Purshis Ex.-41. The First Appellate Court and the HighCourt fell in error by presuming that the plaintiff was inEpossession by merely relying upon the prior suit filed by theappellant-defendant for possession and Purshis Ex.-41. Theimpugned order of the High Court affirming the findings ofthe First Appellate Court is not sustainable and is liable to beset aside. [Para 18][801-D-F]

FCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1509of 2019.

From the Judgment and Order dated 23.06.2016 of the High Courtof Judicature at Mumbai in Writ Petition No. 6873 of 2016.

S. M. Jadhav, Ms. Qurratulain, Nicholas Choudhary,GMs. Amandeep Kaur, M/S. S.M. Jadhav And Company, Advs. for theAppellant.

Dr. Abhishek Atrey, Brijesh Panchal, Vikash Gupta, SandeepChaudhary, Advs. for the Respondents.

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The Judgment of the Court was delivered by

R. BANUMATHI, J. 1. Leave granted.

2. This appeal arises out of the judgment dated 23.06.2016passed by the High Court of Judicature at Mumbai dismissing theWrit Petition No.6873 of 2016 thereby affirming the judgment of theFirst Appellate Court decreeing the first respondent’s suit forpermanent injunction.

3. The first Respondent-plaintiff claiming to be a tenant filed asuit in the year 2004 for permanent injunction restraining the appellant-landlord from disturbing his peaceful possession in the suit premises.Case of the first respondent-plaintiff was that he was running eatinghouse, a pan shop and was also doing fabrication work in the suitpremises which has been constructed in tin sheet, wooden logs andrafters. According to the first respondent-plaintiff, he was inductedin the suit premises as a tenant in the year 1977 on monthly rent ofRs.55/-. Appellant-defendant has earlier instituted a suit against thefirst respondent-plaintiff in RCS No.1004/1988 and the said suit wasdismissed as withdrawn. The first respondent-plaintiff averred thathe repeatedly called upon the appellant-defendant to carry out thenecessary repairs in the suit premises; however, the appellant-defendant refused to carry out the repairs. The first respondent-plaintiff further alleged that after obtaining permission from theCorporation for effecting the necessary repairs, when he was aboutto start the repair works, on 19.08.2004, the appellant-defendant camealong with his men and obstructed the first respondent-plaintiff fromcarrying out the repairs. Hence, the first respondent-plaintiff wasconstrained to file the suit for permanent injunction.

4. The appellant-defendant filed a written statement contendingthat the first respondent-plaintiff was in occupation of only one roomuntil the year 1991. According to the appellant-defendant, earlier heinstituted a suit in RCS No.1004/1988 against the first respondent-plaintiff and during the pendency of that suit, parties arrived at asettlement and in pursuance of that settlement, the first respondent-plaintiff had handed over the possession of the suit premises to theappellant-defendant. Accordingly, the appellant-defendant filedPurshis Ex.-41 on 23.04.1991 seeking permission to withdraw thesuit and the said suit was disposed of on 26.04.1991. According tothe appellant, the relationship between the parties as landlord-tenant A

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Aceased to exist. The appellant further averred that he had executeda Development Agreement with the second respondent and when hewas about to start the development of the suit premises, the firstrespondent-plaintiff had filed the suit for permanent injunction andtherefore, prayed for dismissal of the suit.B5. Based upon the pleadings and evidence, relevant issues were B5. Based upon the pleadings and evidence, relevant issues wereframed before the trial court. Upon consideration of oral anddocumentary evidence, the trial court dismissed the suit holding thatthe first respondent-plaintiff has not produced any licence or electricityconnection to show that he was running the hotel, pan shop and doingfabrication work showing that he has been carrying on the businessCfrom the suit premises. The trial court held that the plea of the firstrespondent-plaintiff that he has been in occupation of the suit premisesis not acceptable. Referring to the settlement arrived at, in RCSNo.1004/1988, the trial court pointed out that after disposal of RCSNo.1004/1988, the first respondent-plaintiff had not paid the rent and

Dthat the first respondent-plaintiff failed to establish that he was thetenant in the suit premises and on those findings, the trial courtdismissed the suit.

6. In appeal the First Appellate Court allowed the appeal filedby the first respondent-plaintiff by holding that there is nothing onrecord to show that after withdrawal of the earlier suit i.e. RCSENo.1004/1988, the first respondent-plaintiff has vacated the suitpremises in the year 1991. After referring to the evidence of the firstrespondent-plaintiff (PW-1) and other evidence, the First AppellateCourt held that the first respondent-plaintiff had established hispossession over the suit property and that the trial court erred inFdrawing presumption of possession based on withdrawal Purshis Ex.-41 filed in RCS No.1004/1988. Challenging the judgment of the FirstAppellate Court, the appellant-defendant filed the Writ PetitionNo.6873 of 2016 before the High Court under Article 227 of theConstitution of India which came to be dismissed by the impugnedjudgment.G

7. We have heard the learned counsel appearing for both theparties and perused the impugned judgment and materials on record.When the first respondent-plaintiff has neither proved his actualpossession nor shown to have paid the rent from the year 1991, inthe suit filed by the first respondent-plaintiff under Section 38 of the H

Specific Relief Act, whether the High Court and the First AppellateCourt were right in granting permanent injunction in favour of thefirst respondent-plaintiff, is the point falling for consideration in thisappeal.

8. Both the First Appellate Court and the High Court mainlyrelied upon Purshis Ex.-41 dated 23.08.1991 based on which the courtpermitted the appellant-defendant to withdraw his earlier suit RCSNo.1004/1988 on the ground that there were technical defects in thesaid suit. Placing reliance upon Purshis Ex.-41, both the High Courtand the First Appellate Court have held that there was no settlementbetween the parties and there is no other evidence to show that thefirst respondent-plaintiff has voluntarily surrendered the possessionof the suit premises and that the appellant-defendant has takenpossession by following due process of law. Contention of theappellant-defendant that after the settlement in the earlier suit RCSNo.1004/1988, the first respondent-plaintiff vacated the premises,was not accepted by the courts below on the ground that PurshisEx.-41 does not indicate that the first respondent-plaintiff vacatedand handed over possession of the suit premises to the appellant-defendant. The conclusion of the First Appellate Court as affirmedby the High Court presuming possession of the first respondent-plaintiff based on the Purshis Ex.-41 is not a correct approach.

9. In a suit filed under Section 38 of the Specific Relief Act,permanent injunction can be granted only to a person who is in actualpossession of the property. The burden of proof lies upon the firstrespondent-plaintiff to prove that he was in actual and physicalpossession of the property on the date of suit. The First AppellateCourt drew inference of the possession of the first respondent-plaintifffrom Purshis Ex.-41 and from the circumstances that he has obtainedpermission from the Corporation for carrying out the repairs. TheCommissioner’s report dated 02.11.1988 which was referred to inextenso in the order passed in interlocutory application (Ex.-5) dated17.10.2005 rejecting the first respondent’s prayer for temporaryinjunction shows the poor condition of the suit premises prior to filingof the suit RCS No.430/2004. The Commissioner’s report indicatesthat even after replacing the roof by new tin sheet, the premises wasnot fit to carry on business. In the order passed in the interlocutory A

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Aapplication (Ex.-5) dated 17.10.2005, the trial court referred to thereport of the Commission which reads as under:-

“…..The flooring was completely damaged. Big Shahabaditiles were kept without using cement or morter for joining/pointing. It was just of shift flooring, wooden stall was alsoclosed at the time of commission work. According to plaintiffthe premises was taken for conducting business i.e. eatinghouse. Considering the condition of the premises on the dateof commission work, it was impossible to carry such businessin it. It is not case of the plaintiff that he carried repairs aftercommission work….”

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As observed by the trial court, the first respondent-plaintiffhas not brought on record any document to show that the court haspassed any order permitting him to carry repairs after the date ofinspection by the Commissioner and having regard to the conditionof the building, it was impossible for the first respondent-plaintiff toDcarry business in the suit premises.

10. As rightly pointed out by the trial court on the date ofinspection by Commissioner, the premises was not fit for conductingthe hotel business. The trial court rightly rejected the contention ofthe first respondent-plaintiff that he has carried out repairs after theEinspection by the Commissioner observing that the first respondent-plaintiff has failed to produce documents such as the order of thecourt permitting him to carry repairs, receipts of material purchaseand labour charges paid etc. From the photographs filed by the firstrespondent-plaintiff, the trial court rightly concluded that the conditionof the said premises was not at all fit for any purpose.

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11. The first respondent-plaintiff has filed the suit under Section38 of the Specific Relief Act seeking permanent injunction on theground that he is in actual possession of the suit property. Grant ofpermanent injunction results in restraining the defendant’s legitimateright to use the property as his own property. Under Section 38 ofGthe Specific Relief Act, an injunction restraining the defendant fromdisturbing possession may not be granted in favour of the plaintiffunless he proves that he was in actual possession of the suit propertyon the date of filing of the suit. The earlier suit RCS No.1004/1988was filed in the year 1988 and it proceeded till 1991. In the presentcase, the first respondent-plaintiff has to prove his actual possession H

on the date of filing of suit. The First Appellate Court concluded thatthe appellant-defendant had failed to prove that the plaintiff hasvacated the premises in 1991 after withdrawal of earlier suit RCSNo.1004/1988. Contention of the appellant is that a settlement wasarrived at between the parties and pursuant to that settlement, theplaintiff has vacated the premises in 1991. This has not been rebuttedby the first respondent-plaintiff by adducing substantive evidence.The possession of the plaintiff cannot be based upon the inferences;drawn from circumstances. The plaintiff has to prove actualpossession for grant of permanent injunction.

12. According to the first respondent-plaintiff, he was conductingbusiness of hotel and Pan shop in the suit premises and also carryingon fabrication work. As pointed out by the trial court, the firstrespondent-plaintiff admitted that for running the business of hoteland Pan shop, two licences are required. In his evidence, the firstrespondent-plaintiff admitted that he was not holding any licenceissued by the Pune Municipal Corporation for carrying on business.The trial court also pointed out that the first respondent has admittedthat three-phase electricity connection is required for carrying outthe business of fabrication which he was allegedly carrying on in thesuit premises. But in his cross-examination, the first respondentadmitted that he does not have such three-phase electricity connectionat the suit premises. In the absence of requisite electricity connection,the contention of the first respondent that he has been carrying onthe business of fabrication at the suit premises does not appear to beprobable. In the absence of licence and the requisite electricityconnection, the trial court rightly rejected the plea of the firstrespondent that he has been carrying on business of hotel, Pan shopand fabrication work at the suit premises.

13. Contention of the appellant-defendant that after 1991, thefirst respondent-plaintiff was not in possession of the suit property iscorroborated by the evidence of Sandeep Wagh. In his evidence,Sandeep Wagh stated that he knows the first respondent-plaintiffand appellant-defendant and that the first respondent-plaintiff hadmet with an accident and thereafter he was not carrying on anybusiness at the suit premises. Based upon the evidence of appellant-defendant and Sandeep Wagh, the trial court has arrived at conclusionthat in all probability, the first respondent-plaintiff must have vacatedthe suit premises in the year 1991. In our considered view, the First AB

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AAppellate Court ought not to have interfered with the findings offact recorded by the trial court on the basis of Purshis Ex.-41.

14. The conclusion of the trial court that the first respondent-plaintiff vacated the suit property since the year 1991 is fortified byyet another circumstance viz., non-payment of rent by the respondent-Bplaintiff. Admittedly, ever since withdrawal of earlier suit RCSNo.1004/1988, the first respondent-plaintiff has not paid any rentfrom the year 1991. Be it noted, that the appellant-defendant hadalso not initiated any proceedings claiming rent or arrears of rentfrom the first respondent-plaintiff. After filing of the suit in 2004, thefirst respondent-plaintiff has sent a cheque dated 14.05.2005 forCRs.10,395/- towards payment of rent for 189 months thereby admittingthat he has not paid the rent for more than fifteen years. The trialcourt also observed that the first respondent-plaintiff has suppressedthe material fact that he has not paid the rent from 1991. The trialcourt observed that the first respondent-plaintiff has not come to the court with clean hands and that he cannot sustain his claim for theDequitable relief of permanent injunction.

15. The First Appellate Court did not keep in view that thefirst respondent-plaintiff has not shown that he has paid any rentafter 1991 and that without paying rent, he cannot have any legitimateright to be in possession of the suit premises. The party seekingEinjunction based on the averment that he is in possession of theproperty and seeking assistance of the Court while praying forpermanent injunction restraining other party who is alleged to bedisturbing the possession of the plaintiff, must show his lawfulpossession of the property. Having not paid rent for more than fifteenFyears, it cannot be said that possession of the first respondent-plaintiffcan be said to lawful possession entitling him to grant of permanentinjunction.

16. The appellant-defendant decided to develop his propertythrough second respondent-builder and in that regard, a public noticewas given calling for objections from persons, whether any personGhaving any interest in the property. At that time, the first respondent-plaintiff issued notice dated 13.04.2000 through his advocate claimingthat he is a tenant of the portion of the land measuring 1000 sq. ft.since last twenty two years. In the earlier suit RCS No.1004/1988,the tenanted premises was described as only one room. In its orderHin the interlocutory application (Ex.-5) dated 17.10.2005, the trial court has pointed out that the total area of the premises described inall the schedule is 356 sq. ft. It is not known how the first respondent-plaintiff issued legal notice claiming tenancy right over thousandsquare feet. As pointed out by the trial court, objection of the firstrespondent-plaintiff was rejected by the Corporation and accordingly,layout of the proposed building on the said land was sanctioned bythe Corporation (Ex.-42/4). This conduct of the first respondent-plaintiff also disentitles him from claiming the equitable relief ofpermanent injunction and these aspects were not properly appreciatedby the First Appellate Court.

17. As discussed earlier, in a suit filed under Section 38 of theSpecific Relief Act, possession on the date of suit is a must for grantof permanent injunction. When the first respondent-plaintiff has failedto prove that he was in actual possession of the property on the dateof the suit, he is not entitled for the decree for permanent injunction.

18. Upon appreciation of the oral and documentary evidence,the trial court rightly held that the first respondent-plaintiff failed toprove his actual and physical possession over the suit property onthe date of the suit. When the finding of the trial court was based onoral and documentary evidence, the First Appellate Court and theHigh Court were not right in setting aside the judgment of the trialcourt by drawing inference of possession from Purshis Ex.-41. Inour considered view, the First Appellate Court and the High Courtfell in error by presuming that the first respondent-plaintiff was inpossession by merely relying upon the prior suit filed by the appellant-defendant for possession and Purshis Ex.-41. The impugned orderof the High Court affirming the findings of the First Appellate Courtis not sustainable and is liable to be set aside.

19. In the result, the impugned judgment dated 23.06.2016passed by the High Court in Writ Petition No.6873/2016 is set asideand this appeal is allowed. The suit RCS No.430/2004 filed by thefirst respondent is dismissed. No costs.

Kalpana K. Tripathy

Appeal allowed.

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