BALKRISHNA DATTATRAYA GALANDE versus BALKRISHNA RAMBHAROSE GUPTA AND ANOTHER
[2019] 2 S.C.R. 791, Supreme Court of India, 2019
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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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 against
the defendant – Claiming to be in actual possession of the suit
property being the tenant thereof – Defendant-Landlord’s case
was that there was no relationship of tenant-landlord  between
the parties since the year 1991 when the tenant had vacated the
premises pursuant to a settlement entered in a suit – Trial court
dismissed the suit on the ground that the plaintiff failed to prove
his possession – First appellate court decreed the suit holding
that the plaintiff established his possession – High Court upheld
the order of appellate court – On appeal, held: A suit under s.
38 for the relief of permanent injunction cannot be granted unless
the plaintiff proves that he was in actual possession of the suit
property – Trial court on appreciation of oral and documentary
evidence rightly held that the plaintiff failed to prove actual
possession over suit property – Appellate Court and High Court
were not correct in setting aside judgment of trial court by
drawing inference of possession of the plaintiff – Suit is dismissed.
Allowing the appeal, the Court
HELD: 1. The first respondent-plaintiff has filed the suit
under Section 38 of the Specific Relief Act seeking permanent
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
[2019] 2 S.C.R. 791
791
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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. [Para 11][798-F, G]
2. Case of the appellant-defendant was that a settlement
was arrived at between the parties in an earlier suit filed in
1988 and pursuant to the settlement,  the plaintiff had vacated
the premises in 1991. This has not been rebutted by the plaintiff
by adducing substantive evidence. The 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. 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. [Para 11][798-H; 799-A-B]
3. The trial court pointed out that 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 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 plaintiff, the trial court rightly
concluded that the condition of the said premises was not at
all fit for any purpose. [Para 10][798-E]
4. According to the plaintiff, he was conducting business
of hotel and Pan shop in the suit premises and also carrying on
fabrication work. For running the business of hotel and Pan
shop, two licences are required. In his evidence, the plaintiff
admitted that he was not holding any licence. The plaintiff had
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, he admitted that he does not have such three-
phase electricity connection at the suit premises. In the
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absence of licence and the requisite electricity connection, the
trial court rightly rejected the plea of the plaintiff that he has
been carrying on business of hotel, Pan shop and fabrication
work at the suit premises. [Para 12][799-C-F]
5. Defendant’s plea that after 1991, the plaintiff was not
in possession of the suit property is corroborated by the
evidence of ‘S’. Based upon the evidence of the defendant
and of ‘S’, 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. This conclusion of the trial
court is fortified by yet another circumstance viz., non-payment
of rent by the respondent-plaintiff from the year 1991.  The
defendant had also not initiated any proceedings claiming rent
or arrears of rent. After filing of the suit in 2004, the 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 plaintiff has
suppressed the material fact that he has not paid the rent from
1991.  The trial court observed that the plaintiff has not come
to the court with clean hands and that he cannot sustain his
claim 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 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 plaintiff can be said to lawful
possession entitling him to grant of permanent injunction.
[Para 15][800-E-F]
7. In the earlier suit, the tenanted premises was
described as only one room.  In its order in the interlocutory
application in the present case, the trial court had pointed out
that the total area of the premises described in all the schedule
BALKRISHNA DATTATRAYA GALANDE v. BALKRISHNA
RAMBHAROSE GUPTA & ANR.
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794                    SUPREME COURT REPORTS            [2019] 2 S.C.R.
is 356 sq. ft. When the defendant decided to develop his
property through second respondent-builder and in that regard,
a public notice was given, the plaintiff issued notice dated
13.04.2000 through his advocate claiming that he was a tenant
of the portion of the land measuring 1000 sq. ft. since last
twenty two years.  The objection of the plaintiff was, however,
rejected by the Corporation and layout of the proposed building
on the said land was sanctioned by the Corporation. This
conduct of the plaintiff also disentitles him from claiming the
equitable relief of permanent injunction and these aspects were
not properly appreciated by the First Appellate Court.
[Para 16][800-G-H; 801-A-B]
8. Upon appreciation of the oral and documentary
evidence, the trial court rightly held that the plaintiff failed to
prove his actual and physical possession 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.  The First Appellate Court and the High
Court fell in error by presuming that the 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. [Para 18][801-D-F]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1509
of 2019.
From the Judgment and Order dated 23.06.2016 of the High Court
of  Judicature at Mumbai in Writ Petition No. 6873 of 2016.
S. M. Jadhav, Ms. Qurratulain, Nicholas Choudhary,
Ms. Amandeep Kaur, M/S. S.M. Jadhav And Company, Advs. for the
Appellant.
Dr. Abhishek Atrey, Brijesh Panchal, Vikash Gupta, Sandeep
Chaudhary, 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 23.06.2016
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 respondent-plaintiff was that he was running eating
house, a pan shop 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 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
BALKRISHNA DATTATRAYA GALANDE v. BALKRISHNA
RAMBHAROSE GUPTA & ANR.
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796                    SUPREME COURT REPORTS            [2019] 2 S.C.R.
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 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 respondent-plaintiff under Section 38 of the
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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 affirmed
by 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 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
BALKRISHNA DATTATRAYA GALANDE v. BALKRISHNA
RAMBHAROSE GUPTA & ANR. [R. BANUMATHI, J.]
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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 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 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
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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 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 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
BALKRISHNA DATTATRAYA GALANDE v. BALKRISHNA
RAMBHAROSE GUPTA & ANR. [R. BANUMATHI, J.]
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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 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 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
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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 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.
Kalpana K. Tripathy
Appeal allowed.
BALKRISHNA DATTATRAYA GALANDE v. BALKRISHNA
RAMBHAROSE GUPTA & ANR. [R. BANUMATHI, J.]