BALKRISHNA DATTATRAYA GALANDE versus BALKRISHNA RAMBHAROSE GUPTA AND ANOTHER

Citation: [2019] 2 S.C.R. 791 · Decided: 06-02-2019 · Supreme Court of India · Bench: R. BANUMATHI · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A
B
C
D
E
F
G
H
791
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
A
B
C
D
E
F
G
H
792                    SUPREME COURT REPORTS            [2019] 2 S.C.R.
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
A
B
C
D
E
F
G
H
793
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’, 

Excerpt shown. Read the full judgment & AI analysis in Lexace.