Hon'ble Mrs. Justice R. Banumathi
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 affirming 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
possession in the suit premises. Case of the first respondentplaintiff was that he was running eating house, a pan shop
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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No.1004/1988 and the said suit was dismissed as withdrawn.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
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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
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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
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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 appellantdefendant 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 appellantdefendant. The conclusion of the First Appellate Court as
affirmed by the High Court presuming possession of the first
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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
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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
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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 respondentplaintiff 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
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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 respondentplaintiff 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 crossexamination, 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
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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., nonpayment 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
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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
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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 respondentplaintiff failed to prove his actual and physical possession
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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 affirming 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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