The plaintiff must prove possession and illegal dispossession to succeed in claims for injunction and restoration; failure to do so results in dismissal.

ORAL JUDGMENT

(PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL)

1. The unsuccessful plaintiff is before this Court, being aggrieved by the judgment and decree, dated 08.04.2019, passed in O.S. No.242/2013 on the file of the Addl. Civil Judge, Karwar (for short “the Trial Court”), by which the trial Court dismissed the suit of the plaintiff, which was confirmed by the judgment and decree dated 24.09.2021, passed in R.A. No.98/2019 on the file of the Addl. Senior Civil Judge, Karwar (for short “the First Appellate Court”).

2. The above suit was filed by the plaintiff seeking relief of permanent injunction restraining the defendants from evicting him from the suit schedule property without due process of law. The suit was subsequently amended to seek restoration of possession, based on the allegation that the defendants had illegally dispossessed the plaintiff during the pendency of the suit.

3. The case of the plaintiff is that, defendant No.1 was the owner of the schedule property and had inducted the plaintiff as a tenant. When the defendant was in need of financial assistance during the construction of the building, he approached the plaintiff. The plaintiff paid a sum of Rs.65,000/- to the defendant, based on the assurance that a permanent lease of the shop premises to be constructed would be granted in favour of the plaintiff. Accordingly, a lease deed was executed between the plaintiff and the defendant No.1 on 10.10.1990. Since then, the plaintiff had been in peaceful possession and enjoyment of the premises.

4. On 16.10.2008, the defendant executed another lease deed in favour of the plaintiff with a specific clause providing for renewal of the lease every five years, with a 10% increment in rent. At the time of execution of this second lease, the plaintiff paid a sum of Rs.25,000/- to the defendant as a refundable deposit. The plaintiff also spent about Rs.60,000/- on the renovation and repair of the shop premises. Thus, though the plaintiff was occupying the premises as a permanent tenant, the defendant threatening the plaintiff with forcible dispossession. As a result, the plaintiff was constrained to file the suit seeking a permanent injunction to restrain the defendant from evicting him without due process of law.

5. The plaint was amended by inserting paragraph No.10A, alleging that defendant No.1 had forcefully taken possession of the shop premises from the Manager of the plaintiff on 11.05.2014, while the plaintiff was away, without following due process of law. Accordingly, the plaintiff sought the relief of a mandatory injunction directing the defendant to hand over actual possession and occupation of the shop premises to the plaintiff.

6. The defendant filed written statement admitting that he is the absolute owner of the suit premises and that the plaintiff was tenant under him. However, it was contended that the plaintiff had illegally sublet the suit premises to one Shri Bheraram Nimbramji Prajapat on 01.07.2011 and had collected additional rent of Rs.2,82,750/- from the sub tenant. Upon learning of this sublease, the defendant issued notice under Section 106 of the Transfer of Property Act on 17.08.2013, terminating the lease and calling upon the plaintiff to vacate the premises. The plaintiff issued a reply on 02.09.2013. It is further contended that since the plaintiff had illegally sublet the premises, the lease was validly terminated, and a fresh lease deed was subsequently executed in favour of defendant No.2. The allegations of forcible dispossession is denied as false. It is contended that the plaintiff was not at all in possession of the suit premises. As such, the question of restoration did not arise.

7. Based on the pleading