1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1946/2009 Prakash D.Deshpande PETITIONER VS. Sameer G.Kawale RESPONDENT Mr.Tejas Dande for petitioner Mr.G.S.Godbole i/b Ms.Pallavi N.Dabholkar for respondent CORAM:MRS.MRIDULA BHATKAR,J. DATE :13th JULY,2009. P.C. . This petition is filed against the order dated 29/12/2008 passed by the learned District Judge-10, Pune setting aside the order passed by the trial Court refusing the temporary injunction . 2] The respondent is the original plaintiff and has filed Regular Civil Suit no.1159/2008 against the petitioner/original defendant for injunction simplicitor .The petitioner has sold the property i.e.land with a shed of approximately 32 ares under saledeed dated 3/5/2008 in favour of the respondent and the suit property was also handed over on the same day to the respondent. The permission to keep the machines in the shed was granted by the respondent /original plaintiff to the petitioner/original defendant under gratuitous license which was executed between the parties.The petitioner kept the machinery and 2 did not vacate the shed till 5/6/2008 as agreed and continued thereupon and thus was not in possession of the said shed .Hence the respondent/plaintiff thereafter filed the suit for injunction. The learned trial Judge has rejected the application for interim stay on the ground that as per the agreement between the plaintiff/respondent the defendant/petitioner in fact the petitioner was in possession of the suit shed and the respondent/plaintiff was not in possession of said shed when he filed the suit. The trial Court has held that assuming that the suit premises had been occupied by the petitioner illegally yet he could not be ousted illegally without following due process of law or under the garb of seeking the order of injunction. The said order was set aside by the learned District Judge-10 ,Pune in the miscellaneous civil appeal preferred by the respondent. Hence this petition. 3] The learned counsel for the petitioner has submitted that the petitioner was in possession of the shed when the suit for injunction was filed . In the plaint itself the plaintiff has admitted that the defendant has put the lock on the premises with the help of the police and on the said lock the plaintiff has put his lock. It is further submitted by him that the plaintiff should have filed the suit for possession to acquire the said premises. Moreover grant of interim injunction amounts to virtually deciding the suit finally and hence the said relief cannot be granted. The learned counsel relied upon the 3 agreement of gratuitous license entered into between both the parties by which the petitioner had right to keep his machines in that shed from 2/5/2008 and thereafter he continued to occupy the said shed and the respondent was never in possession of the said shed. In support of his submissions he relied upon the rulings (1) (Krishna Ram Mahale (Dead) by his Lrs.Vs.Mrs.Shobha Venkat Rao ) reported in (1989)4 Supreme Court Cases,131 and (2) (Ramegowda (Dead)by Lrs.Vs.M.Varadappa Naidu (Dead) by Lrs.and another reported in (2004)1 Supreme Court Cases ,769 . 4] Per contra the learned counsel Mr.Godbole appearing for the respondent opposed this petition submittingthat the petition is based on false and malafide grounds . He has submitted that the respondent nowhere has made any averment in the form of admission of the possession of the shed by the petitioner. He has submitted that the petitioner was the owner of industrial shed admeasuring 32 ares in Pune . He was not doing well in the business . Hence he has sold this premises to the respondent to meet the financial need. The transaction of this transfer of the suit property including transfer of the shed was completed by way of registered saledeed for the consideration of Rs.40 lacs in the month of May,2008. He relied on the receipts of the registration and said registered document. He has further submitted that the respondent has entered into an agreement of gratuitous 4 license with the petitioner for allowing him to keep the machinery only for 30 days which was to get over on 5thJune,2008. However, thereafter the petitioner did not remove his machinery from the shed which is in the possession of the respondent/plaintiff and so the respondent/plaintiff has filed the suit for possession. He has submitted that the order passed by the District Judge-10 Pune is legal and the order of the trial Court was rightly set aside. In support of his submissions he relied on the photographs showing the possession of the suit property by the respondents and his family members. 5] The license dated 2/5/2008 between both the parties is the basis of this petition. Whether on the basis of this license the original plaintiff/respondent could prove that he is in the possession of the suit premises i.e.the shed and whether such claim of possession can be nullified by the petitioner on the basis of the said license ? My attention was drawn to the recitals of the said license. In paragraph 1 of the license it is expressly mentioned that the status of the petitioner is gratuitous licensee without any payment. The petitioner by this license was not put in possession of the suit premises. The contents of paragraph -1 are unambiguous wherein the licensee was allowed to keep the machines. Thus,giving permission to keep the articles without any payment in the premises which is owned and possessed by the licensor does not create any right in favour of the licensee. ‘ Being in 5 possession ‘, ‘have right to occupy’ and ‘ ‘allowed to keep the articles’ are the terms with different connotations. The license itself discloses that the entire land and the shed was handed over to the respondent i.e.original plaintiff and its possession was given to him on payment of Rs.40 lacs. It can be easily inferred that the plaintiff was in possession of the suit premises and the defendant/petitioner who was allowed to keep his machines in the shed by taking advantage of this situation wanted to obtain the premises illegally by forcibly putting lock to the suit premises. The learned trial Court has erred in accepting the submissions of the petitioner on the point of possession and the said order was rectified by the appellate Court . No illegality is found in the impugned order. Hence the petition deserves to be dismissed. 6] The rulings which are relied upon by the learned counsel appearing for the petitioner are about protecting possession even if it is obtained unlawfully. In the present case there is no possession at all and hence the ratio laid down in those rulings is not applicable to the present set of facts. 7] The learned counsel appearing for the petitioner has submitted that if his petition is going to be dismissed then the order of this Court be stayed for four weeks as the petitioner wants to seek remedy before the Hon’ble Apex Court. 6 8] The learned counsel appearing for the respondents opposes this prayer of stay. 9] Considering the record especially the registered saledeed and the gratuitous license and the fact that the respondent is in rightful possession of the entire land on full and final payment of the consideration amount and the petitioner is mischievously creating his right in the property I am not inclined to grant stay. The petition is dismissed. No costs. (Mrs.Mridula Bhatkar,J.)