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.


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.

  1. 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.
  2. 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    No.1004/1988 and the said suit was dismissed as withdrawn.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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. 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.
  9. 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.
  10. 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
  11. 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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