SC: Possession of party seeking injunction can’t be based upon inferences; drawn from circumstances

The Hon’ble Supreme Court, on 6th February 2019, in the matter of Balkrishna Dattatraya Galande v. Balkrishna Rambharose Gupta pronounced that mere reliance upon Purshis and a prior suit filed by the party for possession cannot be a basis for presuming that such party was in possession of the suit property and actual physical possession of the suit property is a prerequisite for a party seeking grant of relief of injunction under the Section 38 of the Specific Relief Act.

Hon’ble Supreme Court observed that:

Under Section 38 of the Specific Relief Act, an injunction restraining the defendant from disturbing possession may not be granted in favour of the plaintiff unless he proves that he was in actual and physical possession of the suit property on the date of filing of the suit. (Para 9 and Para 11)

The possession of the plaintiff seeking injunction cannot be based upon the inferences; drawn from circumstances. (Para 11)

Having not paid rent for a substantial amount of time, it cannot be said that possession of the plaintiff seeking injunction can be said to lawful possession entitling him to grant of permanent injunction.(This inference has been drawn on the basis of Para 15)

If the plaintiff seeking injunction fails 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.(This inference has been drawn on the basis of Para 17)

Mere reliance upon Purshis and a prior suit filed by the party for possession cannot be a basis for presuming that such party was in possession. (This inference has been drawn on the basis of Para 18)

Copy of judgement: Judgement_06-Feb-2019

– Manikya Malik

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