BALKRISHNA DATTATRAYA GALANDEversusBALKRISHNA RAMBHAROSE GUPTA AND ANOTHER

                        [2019] 2 S.C.R. 791                             791


           BALKRISHNA DATTATRAYA GALANDE                                A
                                 v.
  BALKRISHNA RAMBHAROSE GUPTA AND ANOTHER
                  (Civil Appeal No. 1509 of 2019)
                                                                        B
                         February 06, 2019
     [R. BANUMATHI AND R. SUBHASH REDDY, JJ.]
      Specific Relief Act, 1963:
                                                                        C
      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       D
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      E
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            F
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         G
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
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                                791
792               SUPREME COURT REPORTS                [2019] 2 S.C.R.


A     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
B     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
C     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 t hat on the dat e of
D
      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
E     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]
F           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
G
      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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 BALKRISHNA DATTATRAYA GALANDE v. BALKRISHNA                          793
          RAMBHAROSE GUPTA & ANR.

absence of licence and the requisite electricity connection, the      A
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             B
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      C
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      D
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 f or t he equitable relief of permanent injunction.
[Paras 13 and 14][799-G-H; 800-B-D]                                   E
      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.       F
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, t he t enant ed premises w as           G
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


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794               SUPREME COURT REPORTS                  [2019] 2 S.C.R.


A     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,
B
      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.
C     [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
D     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
E     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]

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,
G
      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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  BALKRISHNA DATTATRAYA GALANDE v. BALKRISHNA                               795
           RAMBHAROSE GUPTA & ANR.

        The Judgment of the Court was delivered by                          A
        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             B
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       C
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        D
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          E
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     F
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-       G
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
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796                SUPREME COURT REPORTS                      [2019] 2 S.C.R.


A     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.
B            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
C     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
D     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
E     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
F     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.
G
             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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  BALKRISHNA DATTATRAYA GALANDE v. BALKRISHNA                                797
    RAMBHAROSE GUPTA & ANR. [R. BANUMATHI, J.]

Specific Relief Act, whether the High Court and the First Appellate          A
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         B
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        C
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              D
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,      E
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     F
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     G
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

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798                 SUPREME COURT REPORTS                     [2019] 2 S.C.R.


A     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
B            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….”
C            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
D     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
E     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.
F            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
G     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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  BALKRISHNA DATTATRAYA GALANDE v. BALKRISHNA                                799
    RAMBHAROSE GUPTA & ANR. [R. BANUMATHI, J.]

on the date of filing of suit. The First Appellate Court concluded that      A
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
                                                                             B
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        C
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.           D
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,    E
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          F
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          G
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        H
800                SUPREME COURT REPORTS                      [2019] 2 S.C.R.


A     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-
B     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
C     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
D     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
E     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
F     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
G
      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
H     in the interlocutory application (Ex.-5) dated 17.10.2005, the trial
  BALKRISHNA DATTATRAYA GALANDE v. BALKRISHNA                                 801
    RAMBHAROSE GUPTA & ANR. [R. BANUMATHI, J.]

court has pointed out that the total area of the premises described in        A
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
                                                                              B
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       C
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    D
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             E
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.                             F
       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.
                                                                              G
Kalpana K. Tripathy                                         Appeal allowed.




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