Whether court should grant perpetual injunction to a person who has failed to prove actual physical possession over suit premises?

 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

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.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1509 OF 2019

BALKRISHNA DATTATRAYA GALANDE  Vs  BALKRISHNA RAMBHAROSE GUPTA

R. BANUMATHI, J.
Dated:February 06, 2019.
Citation: 2020(1) MHLJ 137

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Whether possession of tenant who has not paid rent for fifteen years is lawful entitling him to get injunction?

 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 fling 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.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1509 of 2019 (Arising out of SLP (C) No. 29417 of 2016)

Decided On: 06.02.2019

 Balkrishna Dattatraya Galande Vs. Balkrishna Rambharose Gupta and Ors.

Hon'ble Judges/Coram:

R. Banumathi and R. Subhash Reddy, JJ.

Citation: AIR 2019 SC 933

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What is distinction between litigious possession and lawful possession?

 In our opinion, any right which the dealer has over his site was the right which he had acquired in terms of the lease. When that lease expired and when the landlord declined to renew the same and also called upon the erstwhile tenant to surrender possession, the erstwhile lessee could no longer assert that he had any right to the site. His continued occupation of something which he had no right to occupy cannot be regarded as source of a right to the land of which he himself was not in lawful possession. As observed by this Court in the case of M.C. Chockalingam and Ors. v. V. Manickavasagam and Ors. (supra), litigious possession cannot be regarded as lawful possession. As rightly pointed out by the Division Bench of the High Court the right referred to in this Rule has necessarily to be regarded as right which is in accordance with law and the right to the site must be one which is capable of being regarded as lawful. We have already referred to Bhawanji Lakhamshi and Ors. v. Himatlal Jamnadas Dani and Ors. (supra) wherein this Court held that the act of holding over after the expiration of the term does not create a tenancy of any kind. A new tenancy is created only when the landlord assents to the continuance of the erstwhile tenant or the landlord agrees to accept rent for the continued possession of the land by the erstwhile tenant. The contention of Mr. L.N. Rao that the landlord's assent should be inferred from the conduct of the landlord who had filed the suit for ejectment, but did not pursue the same, has no force. This suit was withdrawn with liberty to file a fresh suit on the same cause of action, liberty which the Court has granted. The possession of this site by the erstwhile lessee does not ripen into a lawful possession merely because the landlord did not proceed with the suit for ejectment at that time, but reserved the right to bring such a suit at a later point of time. That cannot amount to an assent on his part to the continued occupation of the landlord under cover of a right asserted by the erstwhile lessee. The words "right to the site" in Rule 153(1) (i) must, therefore, in our opinion, be given their full meaning and the effect that unless the person seeking a licence is in a position to establish a right to the site, he would not be entitled to hold or have his licence renewed.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition Nos. 6923 and 6924 of 2016

Decided On: 14.06.2017

Vimal Sudarshan Bafna Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

R.V. Ghuge, J.

Citation: 2017(6) MHLJ 227

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Whether court can grant injunction to person whose possession over property is not legal?

It is a settled principle of law that in order to claim prohibitory (temporary or permanent) injunction, it is necessary for the Plaintiff to prima facie prove apart from establishing other two ingredients, namely, irreparable loss and injury that his possession over the suit land is "legal". In this case, it was not so and nor it could be for the simple reason that as far back on 21.08.1976, the Tribunal had already declared the land held by the Plaintiff to be in excess of the ceiling limits prescribed under the Act. In these circumstances, the Plaintiff was neither holding the land nor could he be held to be in its lawful possession so as to enable him to exercise any ownership rights against any other private party over the suit land. The Appellant had then very limited rights left to exercise under the Act in relation to the suit land and such rights were available to him only against the State. Such is not the case here.

38. Lastly, this being a simple suit for grant of permanent injunction between the two private parties in relation to the land which was subject matter of the State Ceiling Laws, was liable to be dismissed on the short ground apart from many others as detailed above that any order that may be passed by the Civil Court would adversely affect and interfere in the rights of the State under the Act, which had not been impleaded as party Defendant.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5817 of 2012

Decided On: 13.04.2017

 Agnigundala Venkata Ranga Rao Vs.  Indukuru Ramachandra Reddy (dead) by L.Rs. and Ors.

Hon'ble Judges/Coram:

Abhay Manohar Sapre and Navin Sinha, JJ.

Citation:(2017) 7 SCC 694,2018(1) MHLJ 94

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