Balkrishna Dattatraya Galande vs Balkrishna Rambharose Gupta .

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 respondent- 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earlier instituted a suit against the first respondent-plaintiff in RCS No.1004/1988 and the said suit was dismissed as withdrawn.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.

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.

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.

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