On 06 February 2019, the Supreme Court (R. Banumathi, R. Subhash Reddy, JJ.) passed a judgment in Balakrishna Dattatraya Galande v. Balakrishna Rambharose Gupta and Another, Civil Appeal No. 1509/2019. The Court, inter alia, held that the plaintiff must establish that s/he was in actual and physical possession of the suit-property as on the date of filing the suit, in a suit seeking permanent injunction filed under Section 38 of the Specific Relief Act, 1963, 

The present appeal was filed against a judgment passed by the High Court of Bombay dismissing Writ Petition No. 6873 of 2016 which affirmed the judgment of the First Appellate Court decreeing the Plaintiff’s suit for permanent injunction. 

Background Facts

The Plaintiff (Respondent No. 1 herein), claiming to be a tenant, filed a suit for permanent injunction restraining the Defendant-landlord (Appellant herein) from disturbing his peaceful possession of the suit property. 

Plaintiff’s position: (a) Plaintiff was running a business at the suit premises from the year 1977; (b) the Defendant, despite repeated requests, refused to carry out repairs; (c) in view of this, the Plaintiff, at his own expense, was about commence repair works on 19 August 2004, when the Defendant obstructed the Plaintiff from carrying out the works. 

Defendant’s position: (a) Plaintiff was in possession of only one room in the suit property until 1991; (b) the Defendant earlier instituted a suit in RCS No. 1004/1988 against the Plaintiff and during the pendency of the suit, the parties arrived at a settlement. Pursuant thereto, the Plaintiff handed over possession of the suit property to the Defendant and the Defendant withdrew RCS No. 1004/1988. Accordingly, the Plaintiff was no longer the tenant of the suit property after 23 April 1991; and (c) the Defendant, pursuant to a development agreement executed with the Respondent No. 2 herein, was in the process of developing the suit property, at which stage, a suit for permanent injunction was filed by the Plaintiff. 

Suit dismissed by Trial Court: (a) Plaintiff has failed to produce any license or electricity connection to establish that he was running a business from the suit property; (b) a commissioner’s report filed by the Defendant clearly indicated that suit property was not in a condition fit enough to carry on a business; (c) Plaintiff had not paid rent after disposal of RCS No. 1004/1988

Appeal allowed by First Appellate Court: (a) there was nothing on record to establish that the Plaintiff had vacated the suit property in the year 1991; (b) the Plaintiff had established his possession over the suit property and the Trial Court erred in drawing a presumption based on withdrawal of RCS 1004/1988.

The judgment of the First Appellate Court was challenged before the High Court of Bombay, which came to be dismissed. Being aggrieved by the aforesaid judgment, the Defendant filed an appeal therefrom.

Observations and findings of the Supreme Court

1. The Supreme Court observed that “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.” Further, it held that the possession of the suit property by the Plaintiff cannot be based upon an inference, drawn from circumstances. 
2. The Supreme Court affirmed the Trial Court’s findings, viz., (a) rejection of the Plaintiff’s plea that he had been carrying on his business from the suit property in view of the absence of license and requisite electricity connection; (b) the Plaintiff had discontinued paying rent since withdrawal of RCS No. 1004/1988 and the Defendant had not initiated proceedings to recover arrears of rent. After filing the suit in 2004, the Plaintiff sent the Defendant a cheque with the amount of arrears. This, the Trial Court held, was an admission by the Plaintiff that he had not paid rent for over 15 years and this fact was deliberately supressed by the Plaintiff. In this regard, the Supreme Court observed “the 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”. It was further held that the First Appellate Court ought not to have interfered with the findings of fact recorded by the Trial Court on the basis of RCS No. 1004/1988.
3. In view of this, the Supreme Court affirmed the Trial Court’s position that the Plaintiff failed to establish his actual and physical possession over the suit property as on the date of filing the suit; set aside the order of the High Court of Bombay affirming the findings of the First Appellate Court; allowed the present appeal; and dismissed the suit filed by the Plaintiff.