Balkrishna Dattatraya Galande vs Balkrishna Rambharose Gupta .

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1509 OF 2019 (Arising out of SLP(C) No.29417 of 2016)

BALKRISHNA DATTATRAYA GALANDE …Appellant

VERSUS

BALKRISHNA RAMBHAROSE GUPTA …Respondents AND ANOTHER

J U D G M E N T

R. BANUMATHI, J.

Leave granted.

2. This appeal arises out of the judgment dated 23.06.2016

passed by the High Court of Judicature at Mumbai dismissing

the Writ Petition No.6873 of 2016 thereby affi rming the

judgment of the First Appellate Court decreeing the first

respondent’s suit for permanent injunction.

3. The first Respondent-plaintiff claiming to be a tenant

filed a suit in the year 2004 for permanent injunction

restraining the appellant-landlord from disturbing his peaceful Signature Not Verified

possession in the suit premises. Case of the first respondent- Digitally signed by MADHU BALA Date: 2019.02.06 14:27:59 IST Reason:

plaintiff was that he was running eating house, a pan shop

1 and was also doing fabrication work in the suit premises

which has been constructed in tin sheet, wooden logs and

rafters. According to the first respondent-plaintiff, he was

inducted in the suit premises as a tenant in the year 1977 on

monthly rent of Rs.55/-. Appellant-defendant has earlier

instituted a suit against the first respondent-plaintiff in RCS

No.1004/1988 and the said suit was dismissed as withdrawn.

The first respondent-plaintiff averred that he repeatedly

called upon the appellant-defendant to carry out the

necessary 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 the Corporation for effecting the necessary

repairs, when he was about to start the repair works, on

19.08.2004, the appellant-defendant came along with his men

and obstructed the first respondent-plaintiff from carrying out

the repairs. Hence, the first respondent-plaintiff was

constrained to file the suit for permanent injunction.

4. The appellant-defendant filed a written statement

contending that the first respondent-plaintiff was in

occupation of only one room until the year 1991. According to

the appellant-defendant, earlier he instituted a suit in RCS

No.1004/1988 against the first respondent-plaintiff and during

the pendency of that suit, parties arrived at a settlement and

2 in pursuance of that settlement, the first respondent-plaintiff

had handed over the possession of the suit premises to the

appellant-defendant. Accordingly, the appellant-defendant

filed Purshis Ex.-41 on 23.04.1991 seeking permission to

withdraw the suit and the said suit was disposed of on

26.04.1991. According to the appellant, the relationship

between the parties as landlord-tenant ceased to exist. The

appellant further averred that he had executed a

Development Agreement with the second respondent and

when he was about to start the development of the suit

premises, the first respondent-plaintiff had filed the suit for

permanent injunction and therefore, prayed for dismissal of

the suit.

5. Based upon the pleadings and evidence, relevant issues

were framed before the trial court. Upon consideration of oral

and documentary evidence, the trial court dismissed the suit

holding that the first respondent-plaintiff has not produced any

licence or electricity connection to show that he was running

the hotel, pan shop and doing fabrication work showing that he

has been carrying on the business from the suit premises. The

trial court held that the plea of the first respondent-plaintiff

that he has been in occupation of the suit premises is not

acceptable. Referring to the settlement arrived at, in RCS

No.1004/1988, the trial court pointed out that after disposal

3 of RCS No.1004/1988, the first respondent-plaintiff had not

paid the rent and that the first respondent-plaintiff failed to

establish that he was the tenant in the suit premises and on

those findings, the trial court dismissed the suit.

6. In appeal the First Appellate Court allowed the appeal

filed by the first respondent-plaintiff by holding that there is

nothing on record to show that after withdrawal of the earlier

suit i.e. RCS No.1004/1988, the first respondent-plaintiff has

vacated the suit premises in the year 1991. After referring to

the evidence of the first respondent-plaintiff (PW-1) and other

evidence, the First Appellate Court held that the first

respondent-plaintiff had established his possession over the

suit property and that the trial court erred in drawing

presumption of possession based on withdrawal Purshis Ex.-

41 filed in RCS No.1004/1988. Challenging the judgment of

the First Appellate Court, the appellant-defendant filed the

Writ Petition No.6873 of 2016 before the High Court under

Article 227 of the Constitution of India which came to be

dismissed by the impugned judgment.

7. We have heard the learned counsel appearing for both

the parties and perused the impugned judgment and

materials on record. When the first respondent-plaintiff has

neither proved his actual possession nor shown to have paid

the rent from the year 1991, in the suit filed by the first 4 respondent-plaintiff under Section 38 of the Specific Relief

Act, whether the High Court and the First Appellate Court

were right in granting permanent injunction in favour of the

first respondent-plaintiff, is the point falling for consideration

in this appeal.

8. Both the First Appellate Court and the High Court mainly

relied upon Purshis Ex.-41 dated 23.08.1991 based on which

the court permitted the appellant-defendant to withdraw his

earlier suit RCS No.1004/1988 on the ground that there were

technical defects in the said suit. Placing reliance upon

Purshis Ex.-41, both the High Court and the First Appellate

Court have held that there was no settlement between the

parties and there is no other evidence to show that the first

respondent-plaintiff has voluntarily surrendered the

possession of the suit premises and that the appellant-

defendant has taken possession by following due process of

law. Contention of the appellant-defendant that after the

settlement in the earlier suit RCS No.1004/1988, the first

respondent-plaintiff vacated the premises, was not accepted

by the courts below on the ground that Purshis Ex.-41 does

not indicate that the first respondent-plaintiff vacated and

handed over possession of the suit premises to the appellant-

defendant. The conclusion of the First Appellate Court as

affi rmed by the High Court presuming possession of the first

5 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 actual possession of the property. The burden of proof lies

upon the first respondent-plaintiff to prove that he was in

actual and physical possession of the property on the date of

suit. The First Appellate Court drew inference of the

possession of the first respondent-plaintiff from Purshis Ex.-41

and from the circumstances that he has obtained permission

from the Corporation for carrying out the repairs. The

Commissioner’s report dated 02.11.1988 which was referred

to in extenso in the order passed in interlocutory application

(Ex.-5) dated 17.10.2005 rejecting the first respondent’s

prayer for temporary injunction shows the poor condition of

the suit premises prior to filing of the suit RCS No.430/2004.

The Commissioner’s report indicates that even after replacing

the roof by new tin sheet, the premises was not fit to carry on

business. In the order passed in the interlocutory application

(Ex.-5) dated 17.10.2005, the trial court referred to the report

of the Commission which reads as under:-

“…..The flooring was completely damaged. Big Shahabadi tiles were kept without using cement or morter for joining/pointing. It was just of shift flooring, wooden stall was also closed at the time of commission work. According to plaintiff the premises was taken for conducting business

6 i.e. eating house. Considering the condition of the premises on the date of commission work, it was impossible to carry such business in it. It is not case of the plaintiff that he carried repairs after commission work….”

As observed by the trial court, the first respondent-plaintiff

has not brought on record any document to show that the

court has passed any order permitting him to carry repairs

after the date of inspection by the Commissioner and having

regard to the condition of the building, it was impossible for

the first respondent-plaintiff to carry business in the suit

premises.

10. As rightly pointed out by the trial court on the date of

inspection by Commissioner, the premises was not fit for

conducting the hotel business. The trial court rightly rejected

the contention of the first respondent-plaintiff that he has

carried out repairs after the inspection by the Commissioner

observing that the first respondent-plaintiff has failed to

produce documents such as the order of the court permitting

him to carry repairs, receipts of material purchase and labour

charges paid etc. From the photographs filed by the first

respondent-plaintiff, the trial court rightly concluded that the

condition of the said premises was not at all fit for any

purpose.

11. The first respondent-plaintiff has filed the suit under

Section 38 of the Specific Relief Act seeking permanent

7 injunction on the ground that he is in actual possession of the

suit property. Grant of permanent injunction results in

restraining the defendant’s legitimate right to use the

property as his own property. Under Section 38 of the

Specific Relief Act, an injunction restraining the defendant

from disturbing possession may not be granted in favour of

the plaintiff unless he proves that he was in actual possession

of the suit property on the date of filing of the suit. The

earlier suit RCS No.1004/1988 was filed in the year 1988 and

it proceeded till 1991. In the present case, the first

respondent-plaintiff has to prove his actual possession on the

date of filing of suit. The First Appellate Court concluded that

the appellant-defendant had failed to prove that the plaintiff

has vacated the premises in 1991 after withdrawal of earlier

suit RCS No.1004/1988. Contention of the appellant is that a

settlement was arrived at between the parties and pursuant

to that settlement, the plaintiff has vacated the premises in

1991. This has not been rebutted by 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 actual possession for

grant of permanent injunction.

12. According to the first respondent-plaintiff, he was

conducting business of hotel and Pan shop in the suit

8 premises and also carrying on fabrication work. As pointed

out by the trial court, the first respondent-plaintiff admitted

that for running the business of hotel and Pan shop, two

licences are required. In his evidence, the first respondent-

plaintiff admitted that he was not holding any licence issued

by the Pune Municipal Corporation for carrying on business.

The trial court also pointed out that the first respondent has

admitted that three-phase electricity connection is required

for carrying out the business of fabrication which he was

allegedly carrying on in the suit premises. But in his cross-

examination, the first respondent admitted that he does not

have such three-phase electricity connection at the suit

premises. In the absence of requisite electricity connection,

the contention of the first respondent that he has been

carrying on the business of fabrication at the suit premises

does not appear to be probable. In the absence of licence and

the requisite electricity connection, the trial court rightly

rejected the plea of the first respondent that he has been

carrying on business of hotel, Pan shop and fabrication work

at the suit premises.

13. Contention of the appellant-defendant that after 1991,

the first respondent-plaintiff was not in possession of the suit

property is corroborated by the evidence of Sandeep Wagh.

In his evidence, Sandeep Wagh stated that he knows the first

9 respondent-plaintiff and appellant-defendant and that the first

respondent-plaintiff had met with an accident and thereafter

he was not carrying on any business at the suit premises.

Based upon the evidence of appellant-defendant and Sandeep

Wagh, the trial court has arrived at conclusion that in all

probability, the first respondent-plaintiff must have vacated

the suit premises in the year 1991. In our considered view,

the First Appellate Court ought not to have interfered with the

findings of fact 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 by yet another circumstance viz., non-

payment of rent by the respondent-plaintiff. Admittedly, ever

since withdrawal of earlier suit RCS No.1004/1988, the first

respondent-plaintiff has not paid any rent from the year 1991.

Be it noted, that the appellant-defendant had also not

initiated any proceedings claiming rent or arrears of rent from

the first respondent-plaintiff. After filing of the suit in 2004,

the first respondent-plaintiff has sent a cheque dated

14.05.2005 for Rs.10,395/- towards payment of rent for 189

months thereby admitting that he has not paid the rent for

more than fifteen years. The trial court also observed that the

first respondent-plaintiff has suppressed the material fact that

10 he has not paid the rent from 1991. The trial court observed

that the first respondent-plaintiff has not come to the court

with clean hands and that he cannot sustain his claim for the

equitable relief of permanent injunction.

15. The First Appellate Court did not keep in view that the

first respondent-plaintiff has not shown that he has paid any

rent after 1991 and that without paying rent, he cannot have

any legitimate right to be in possession of the suit premises.

The party seeking injunction based on the averment that he is

in possession of the property and seeking assistance of the

Court while praying for permanent injunction restraining other

party who is alleged to be disturbing the possession of the

plaintiff, must show his lawful possession of the property.

Having not paid rent for more than fifteen years, it cannot be

said that possession of the first respondent-plaintiff can be

said to lawful possession entitling him to grant of permanent

injunction.

16. The appellant-defendant decided to develop his property

through second respondent-builder and in that regard, a

public notice was given calling for objections from persons,

whether any person having any interest in the property. At

that time, the first respondent-plaintiff issued notice dated

13.04.2000 through his advocate claiming that he is a tenant

of the portion of the land measuring 1000 sq. ft. since last 11 twenty two years. In the earlier suit RCS No.1004/1988, the

tenanted premises was described as only one room. In its

order in the interlocutory application (Ex.-5) dated

17.10.2005, the trial court has pointed out that the total area

of the premises described in all the schedule is 356 sq. ft. It

is not known how the first respondent-plaintiff issued legal

notice claiming tenancy right over thousand square feet. As

pointed out by the trial court, objection of the first

respondent-plaintiff was rejected by the Corporation and

accordingly, layout of the proposed building on the said land

was sanctioned by the Corporation (Ex.-42/4). This conduct of

the first respondent-plaintiff also disentitles him from

claiming the equitable relief of permanent injunction and

these aspects were not properly appreciated by the First

Appellate Court.

17. As discussed earlier, in a suit filed under Section 38 of

the Specific Relief Act, possession on the date of suit is a

must for grant of permanent injunction. When the first

respondent-plaintiff has failed to prove that he was in actual

possession of the property on the date of 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 to prove his actual and physical possession

12 over the suit property on the date of the suit. When the

finding of the trial court was based on oral and documentary

evidence, the First Appellate Court and the High Court were

not right in setting aside the judgment of the trial court by

drawing inference of possession from Purshis Ex.-41. In our

considered view, the First Appellate Court and the High Court

fell in error by presuming that the first respondent-plaintiff

was in possession by merely relying upon the prior suit filed

by the appellant-defendant for possession and Purshis Ex.-41.

The impugned order of the High Court affi rming the findings

of the First Appellate Court is not sustainable and is liable to

be set aside.

19. In the result, the impugned judgment dated 23.06.2016

passed by the High Court in Writ Petition No.6873/2016 is set

aside and this appeal is allowed. The suit RCS No.430/2004

filed by the first respondent is dismissed. No costs.

..……………………….J. [R. BANUMATHI]

…...………………………..J. [R. SUBHASH REDDY] New Delhi;

February 06, 2019

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