Balkrishna Dattatraya Galande vs Balkrishna Rambharose Gupta and Another

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 t hat on the dat e 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 crossexamination, he admitted that he does not have such threephase electricity connection at the suit premises. In the 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 f or t he 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, t he t enant ed premises w as 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 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]