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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Rohit B.Deo, J.
Vashishata Projects – Appellant
Versus
Indubhushan – Respondent
Writ Petition 256 of 2022
Decided On : 19-01-2022
M.G.Sarda, Advocate
The main legal point established in the judgment is the requirement to prove possession in cases seeking injunctive relief.
Headnote:
Possession - Lease Agreement - CPC - [Order 39 Rules 1 and 2, sec. 151 of CPC] - [Clause 16 of lease agreement] - The court discussed the lease agreement, the obligations of the lessee, and the possession of the suit property. The court found that the plaintiff did not prove possession as on the date of the institution of the suit and it is the defendant 2, who appears to be in possession.
Fact of the Case:
The plaintiff sought a decree for permanent injunction restraining the respondents from disturbing his peaceful possession over the suit land. The plaintiff claimed to have obtained the leasehold rights of land and converted it from agricultural to non-agricultural. The defendants contended that they are in possession of the suit land and are carrying on manufacturing activities.
Finding of the Court:
The trial Judge and the appellate Court found that the plaintiff is not in possession of the suit property.
Issues: The main issue was the possession of the suit property and the validity of the lease agreement.
Ratio Decidendi: The plaintiff failed to prove possession as on the date of the institution of the suit, and the defendant 2 appeared to be in possession. The court also emphasized that the grant or refusal to grant injunction is ordinarily in the discretionary jurisdiction of the trial Court.
Final Decision: The petition seeking injunctive relief was dismissed.
JUDGMENT
1. The petitioner is the plaintiff in Regular Civil Suit 6/2021 instituted against the respondents herein seeking a decree for permanent injunction restraining the respondents from disturbing his peaceful possession over the suit land, without due process of law.
2. The petitioner and the respondents shall be hereinafter referred to as plaintiff and defendants.
3. The plaintiff averred to have accepted the execution of rehabilitation and up-gradation of Arvi - Talegaon road and to the said end to have obtained the leasehold rights of land admeasuring 1.5 acre from survey 131/1/C vide agreement dtd. 17/5/2019. The plaintiff then claimed to have converted the lease land from agricultural to non-agricultural and to have set up plant and ancillary machinery, described in Annexure A.
4. The plaintiff claimed to be in possession of the lease property and averred that on 25/1/2021, the defendant had attempted to forcibly dispossess the plaintiff.
5. Perusal of the cryptic plaint reveals that the plaintiff did not disclose that the period of lease expired on 16/4/2020.
6. The plaintiff preferred an application under Order 39 Rules 1 and 2 read with sec. 151 of the Code of Civil Procedure ("CPC", for short) which application too does not disclose that the lease period expired on 16/4/2020.
7. Perusal of the lease agreement dtd. 17/5/2019 reveals that the lease was granted for the period 17/5/2019 to 16/4/2020. Clause 16 obligates the lessee to hand over the possession immediately on the expiry of the lease period if the lease is not terminated earlier. Notably, it is not even the case of the plaintiff either in the plaint or in the application seeking temporary injunction, that any amount was paid to the lessor as occupation charges after the lease period ended on 16/4/2020.
8. While defendant 1 is the lessor, defendant 2 is the firm which was allotted the work after the Public Works Department terminated the contract of the plaintiff. The defendant 2 contended that after the lease between plaintiff and defendant 1 ended, the defendant 1 executed agreement dtd. 10/12/2020 in favour of defendant 2 and that the defendant 2 is in possession of the suit land and is carrying on its manufacturing activities from the said land.
9. The learned trial Judge rejected application seeking temporary injunction vide order dtd. 8/3/2021. A prima facie finding is recorded, on the basis of evaluation of material on record, that it is the defendant 2 and not the plaintiff, who is in possession.
10. After meticulous consideration of the material on record, the learned trial Judge observes thus:
"11. Thus, from the material produced on record, prima facie, it appears that, initially the Suit Property was taken on lease by the applicants for the period of 11 months. Thereafter, it has not been renewed or extended by the either parties. It further appears that, in the meanwhile, the Government terminated the contract with the applicants. Thereafter, it is alleged that, the Non-applicant No.1 took the possession of the Suit Property which fact appears to have been fortified by him in a new lease agreement executed with Non applicant No. 2 whereby the Suit Property was given on lease to the later. The application is silent on the point that the material pending on the Suit Property belongs to the applicants. Even the material mentioned in report, dtd. 13/1/2021, do not show that it is of applicants. The R.M.C. plant on Suit Property belongs to Dattakrupa Associates whose plant operator filed an affidavit stating Non-applicant No. 2 possession over the Suit Property. Likewise, the other documents also prima facie show the Nonapplicants possession over the Suit Property. The applicants, except above, filed no documents on record to show their alleged possession over the Suit Property. There is no convincing material on record even to prima facie show the applicants possession over the Suit Property".
11. The plaintiff was aggrieved by the rejection of th
