Bombay High Court
Baliram Dagadu Mundfane vs Managing Director , Maharashtra State ... on 22 December, 2017
Dixit
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.13712 OF 2017
Baliram Dagadu Mundfane ]
Age : Adult, Occ.: Agriculture, ]
R/of Mahalung, Tal. Malshiras, ]
Dist. Kolhapur. ] .... Petitioner
Versus
1. Managing Director, ]
Maharashtra State Agricultural ]
Corporation Ltd., ]
270, Bhamburda, ]
Senapati Bapat Marg, ]
Pune - 411 016. ]
]
2. Manager, ]
Maharashtra State Agricultural ]
Corporation Ltd., ]
Sripur Mala, Tal. Malshiras, ]
Dist. Kolhapur. ]
]
3. District Collector, ]
Solapur. ] .... Respondents
Mr. Sandesh Patil, i/by Mr. Surel Shah, for the Petitioner.
Mr. Shankar P. Thorat for Respondent Nos.1 and 2.
Mr. J.A. Madane, A.G.P., for Respondent No.3-State.
CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.
RESERVED ON : 20 TH DECEMBER 2017.
PRONOUNCED ON : 22 ND DECEMBER 2017.
JUDGMENT :
1. Rule. Rule is made returnable forthwith. Heard finally, at the stage of admission itself, by consent of Mr. Patil, learned counsel for the 1/18 WP-13712-17.doc ::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:41:05 ::: Petitioner, Mr. Thorat, learned counsel for Respondent Nos.1 and 2, and Mr. Madane, learned A.G.P., for Respondent No.3-State.
2. By this Petition, filed under Article 227 of the Constitution of India, the Petitioner is challenging the Judgment and Order dated 28 th November 2017 passed by the Ad-Hoc Additional District Judge-1, Malshiras, thereby allowing the Miscellaneous Civil Appeal No.26 of 2017 and vacating and setting aside the order of interim injunction granted by the Court of Civil Judge, Senior Division, Malshiras, vide its order dated 22nd August 2017 passed below "Exhibit-5" in Regular Civil Suit No.9 of 2017.
3. The case of the Petitioner is that, the land admeasuring 23 Acres, out of Gat No.612, totally admeasuring 10 H 52 R, situate at Village Mahalung, Taluka Malshiras, District Solapur, was given in possession of his mother Yashodabai as a 'tenant' by Brihan Maharashtra Syndicate Limited, as the said land was found to be in excess of the holding under the Maharashtra Urban Land (Ceiling and Regulation) Act. After the death of his mother, the Petitioner is in cultivation of the said land. It is his further case that, Respondent-Maharashtra State Agricultural Corporation Limited has, by calling the tenders, given the said land in joint-cultivation for a period of five years with M/s. Adhirat Trading Company Private Limited. The said period was further extended by one 2/18 WP-13712-17.doc ::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:41:05 ::: year. Thereafter, it was decided to extend the said period for further ten years from 19th May 2015 to 31st May 2025. M/s. Adhirat Trading Company was unable to cultivate the suit land single handedly and, therefore, it has given the said land, along with the other lands, to various farmers for cultivation. Thus, the Petitioner is in peaceful cultivation of the suit land. He is also paying the consideration amount regularly to M/s. Adhirat Trading Company; however, all of a sudden, Respondent Nos.1 and 2 have started obstructing his possession in the suit land on the count that, the Agreement they had entered into with M/s. Adhirat Trading Company Private Limited has come to an end, being terminated. In view thereof, the Petitioner was constrained to file the Suit for injunction with an application for interim injunction.
4. This application came to be resisted by the Respondent- Maharashtra State Agricultural Corporation Limited contending, inter alia, that, as the suit land, along with the various other lands situate in the said area, was found to be in excess of the holding, the Government has given this surplus land to Brihan Maharashtra Syndicate Limited and thereafter, it was given to the Maharashtra State Agricultural Corporation Limited i.e. Respondent Nos.1 and 2 herein. On 9 th July 2015, the Respondent-Maharashtra State Agricultural Corporation Limited had entered into an Agreement with M/s. Adhirat Trading Company Private Limited for joint-cultivation of the suit land on certain 3/18 WP-13712-17.doc ::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:41:05 ::: terms and conditions. As per the said Agreement, M/s. Adhirat Trading Company was to give the Maharashtra State Agricultural Corporation Limited yearly amount of Rs.5,81,20,100/- for the first year and thereafter, on subsequent years, M/s. Adhirat Trading Company was to pay the said amount with the increase of 10%. However, M/s. Adhirat Trading Company failed to pay the said amount and the cheques issued by the said Company came to be dishonoured. M/s. Adhirat Trading Company thereafter also failed to pay the subsequent amounts. As a result, on account of breach of the mandatory terms and conditions of the Agreement on the part of M/s. Adhirat Trading Company, the Respondent-Maharashtra State Agricultural Corporation Limited was constrained to terminate the said Agreement and has, thus, become the absolute owner of not only the land but also of the standing crops thereon. It is submitted that, as the land was to be cultivated jointly by the Respondent-Maharashtra State Agricultural Corporation Limited and M/s. Adhirat Trading Company, there was no question of M/s. Adhirat Trading Company handing over possession of the said land to the Petitioner or to any other farmers. If at all, M/s. Adhirat Trading Company has handed over cultivation of the said land to the Petitioner, it being totally illegal, the Petitioner cannot claim the relief of injunction on the basis of such unauthorized and illegal possession. It was also submitted that, whatever may be the contract that Petitioner has entered into with M/s. Adhirat Trading Company, but he has not joined 4/18 WP-13712-17.doc ::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:41:05 ::: M/s. Adhirat Trading Company as a party to the Suit, which clearly indicates collusion between the Petitioner and M/s. Adhirat Trading Company. If at all, the Petitioner is in possession of the suit land, then, it being for and on behalf of M/s. Adhirat Trading Company and as the contract with M/s. Adhirat Trading Company is terminated, the Petitioner has no right to remain in possession of the suit land. Moreover, possession of the Petitioner never being exclusive or legal, he cannot be entitled to get any relief of interim injunction.
5. On these pleadings of the parties, the learned Trial Court heard the respective counsels and was pleased to hold that, as, prima facie, the Petitioner appears to be in possession of the suit land as his name is entered in 7/12 Extract thereof, the Petitioner is entitled to protect his possession till decision of the Suit, even if the said possession is found to be illegal or that of an encroacher. Accordingly, the Trial Court allowed the Petitioner's application for interim injunction and thereby restrained Respondent Nos.1 and 2 from causing obstruction to his possession.
6. When Respondent Nos.1 and 2 herein approached the Appellate Court, the Appellate Court reversed to the finding of the Trial Court by holding that, Respondent-Maharashtra State Agricultural Corporation Limited being the true owner of the suit land, the Petitioner cannot get relief of temporary injunction against the true owner, even assuming 5/18 WP-13712-17.doc ::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:41:05 ::: that he is in possession thereof. Moreover, his possession being for and on behalf of M/s. Adhirat Trading Company and it was apparently illegal on termination of the contract with M/s. Adhirat Trading Company, Appellate Court held that, the Petitioner is not entitled to get the relief of interim injunction.
7. While challenging this impugned order of the Appellate Court, the submission of learned counsel for the Petitioner is that, the law is fairly well settled and crystallized that the possession of even an encroacher or rank tress-passer is also required to be protected against any unlawful attempts of dispossession. Here in the case, it is submitted that, the finding is arrived at by the Trial Court on the factual aspects that the Petitioner is in possession of the suit land and the crops cultivated by him are standing in the said land; therefore, unless and until his possession is taken away by lawful means, he cannot be dispossessed therefrom. Here in the case, it is urged that, the Trial Court has properly considered these factual aspects. Appellate Court had no jurisdiction to interfere in the discretion exercised by the Trial Court, unless it was found to be perverse. For advancing this proposition, learned counsel for the Petitioner has placed reliance on the Judgment of the Hon'ble Supreme Court in the case of Wander Limited & Anr. Vs. Antox India P. Ltd., MANU/SC/0595/1990.
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8. Learned counsel for the Petitioner has further relied on the landmark decision of the Apex Court in the case of M/s. Anamallai Club Vs. Government of Tamil Nadu & Ors., MANU/SC/0904/1997 , to submit that, "A lessor, with the best of title, has no right to resume possession-extra-judicially by use of force, from a lessee, even after the expiry of earlier termination of the lease by forfeiture or otherwise."
9. Learned counsel for the Petitioner has then relied upon the Judgment of this Court [Coram : S.V. Gangapurwala, J.] in the case of Baban Anantrao Naik Vs. Pramila Uttamrao Yenare & Ors., [in Appeal From Order No.31 of 2010, dated 12 th October 2010], wherein reliance has been placed on the decision of the Apex Court in the case of Rame Gowda (dead) by L.Rs. Vs. M. Varadappa Naidu (dead) by L.Rs. and Anr., 2004 (1) SCC 769, to hold that, even a tress-passer in settled possession is entitled for injunction. According to learned counsel for the Petitioner, therefore, the impugned order passed by the Appellate Court rejecting the Petitioner's application for interim injunction and thereby setting aside the reasoned order of the Trial Court, needs to be quashed and set aside.
10. Per contra, learned A.G.P. has supported the impugned order by pointing out that the relief of interim injunction cannot be granted against the true owner; especially, as in the present case, when the 7/18 WP-13712-17.doc ::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:41:05 ::: possession of the Petitioner was totally illegal and unauthorized, as M/s. Adhirat Trading Company has no exclusive possession, the said Company was in joint-cultivation with Respondent Nos.1 and 2 and, therefore, as per the terms and conditions of the Agreement, on its breach, Respondent-Maharashtra State Agricultural Corporation Limited has become the absolute owner of the suit land and the crops standing thereon. In the opinion of learned A.G.P., therefore, the impugned order of interim injunction passed by the Trial Court being perverse, the Appellate Court has rightly interfered with the same and rejected the Petitioner's application for interim injunction.
11. In order to appreciate these rival submissions advanced by learned counsel for both the parties, it would be necessary to re-visit the factual aspects of the case. It is admitted by the Petitioner also, that, as the suit land is a part of surplus land of Brihan Maharashtra Syndicate Limited, it was taken over by the Government and handed over to the Maharashtra State Agricultural Corporation Limited i.e. Respondent Nos.1 and 2 herein. Respondent Nos.1 and 2 have then entered into an Agreement with M/s. Adhirat Trading Company on 9 th July 2015 and as per the said Agreement, the land was to be in the joint-cultivation of M/s. Adhirat Trading Company and Maharashtra State Agricultural Corporation Limited.
8/18 WP-13712-17.doc ::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:41:05 ::: Clause No.1 of the said Agreement is very clear to the effect that, both the parties had agreed to jointly- cultivate the land for raising the crops therein. Clause No.2 of the Agreement provides for payment of the amount of Rs.5,81,20,100/- for the first year by M/s. Adhirat Trading Company to the Respondent- Maharashtra State Agricultural Corporation Limited, with further increase of 10% of the amount every subsequent year.
Clause No.5(A) of the Agreement provides that, if M/s. Adhirat Trading Company failed to pay this amount, then, the Respondent-Maharashtra State Agricultural Corporation Limited will have the ownership and possession right not only over the land but also on the crops standing thereon and they will also have the right to dispose of the crops standing thereon. It was further stated that, then the persons, who are in joint-cultivation of the said land, will not be entitled to claim any right or interest over the standing crops. Clause 7(C) of the said Agreement further lays down that, the direct and open possession over the suit land 9/18 WP-13712-17.doc ::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:41:05 ::: will always remain with that of the Respondent-
Maharashtra State Agricultural Corporation Limited and only the license was given to M/s. Adhirat Trading Company for cultivation of the said land. It was again reiterated in the same clause that the possession of M/s. Adhirat Trading Company will be only, simplicitor, that of a Licensee and they will not be entitled to claim any direct or open possession over the said land. Clause No.9 of the said Agreement also lays down that, Respondent-Maharashtra State Agricultural Corporation Limited will have the whole and sole right of ownership and possession over the suit land and the crops cultivated thereon.
Clause No.13(B) clearly provides that, M/s. Adhirat Trading Company cannot hand over possession of the said land, even for the sake of cultivation, to any third party.
12. Thus, the recitals in the Agreement are unequivocal to the effect that, the only right, which was given to M/s. Adhirat Trading Company was that of the cultivation of the crops thereon and it was also of a joint- cultivation with the Respondent-Maharashtra State Agricultural 10/18 WP-13712-17.doc ::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:41:05 ::: Corporation Limited. No right of ownership was given and no exclusive possession was also given to M/s. Adhirat Trading Company. M/s. Adhirat Trading company was further specifically prohibited from handing over or parting with possession of the said land with any one else, even for the purpose of cultivation thereon. The Agreement also specifically provides that, in case of termination of the Agreement on account of breach of the terms thereof by M/s. Adhirat Trading Company, the Respondent-Maharashtra State Agricultural Corporation Limited will retain the full control, ownership and possession over the said land and the crops standing thereon.
13. Admittedly, in this case, M/s. Adhirat Trading Company has not paid the amount to the Respondent-Maharashtra State Agricultural Corporation Limited, as agreed. The affidavit-in-reply filed on record by the Respondent-Maharashtra State Agricultural Corporation Limited shows that, whatever cheques were issued by M/s. Adhirat Trading Company in favour of Respondent-Maharashtra State Agricultural Corporation Limited, came to be dishonoured and, therefore, in view of the breach of the terms and conditions of the Agreement, Respondent- Maharashtra State Agricultural Corporation Limited has terminated the Agreement with M/s. Adhirat Trading Company. As a result, as per the terms and conditions of the Agreement, Respondent-Maharashtra State Agricultural Corporation Limited is entitled to retain ownership and 11/18 WP-13712-17.doc ::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:41:05 ::: possession not only over the suit land, but even on the crops standing thereon.
14. As per the Petitioner, he was given possession of the said land by M/s. Adhirat Trading Company; however, the terms and conditions in the Agreement, as stated above, clearly prohibited M/s. Adhirat Trading Company from parting with possession thereof or giving the said land even for the sake of cultivation to any other person. It was one of the terms and condition, on the breach of which the Agreement was liable to be terminated and, accordingly, it was terminated on this count also.
15. It is also pertinent to note that, the Petitioner is not claiming exclusive possession, but, in the plaint itself, he has stated that he was in joint-cultivation with M/s. Adhirat Trading company. If it was so and the Agreement with M/s. Adhirat Trading Company now stands terminated on account of breach of the terms and conditions referred in the said Agreement, then, the Petitioner is having no more right to remain in possession of the said land. If his possession was joint with M/s. Adhirat Trading Company and, indirectly, for and on behalf of M/s. Adhirat Trading Company, then, in the first place, his possession is not exclusive and, secondly, having obtained the same by illegal means, such possession cannot be protected.
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16. The law is well settled that, a possessory suit may be good against the whole world, except the rightful owner. As held by the Apex Court in the case of Maria Margarida Sequeria Fernandes and Ors. Vs. Erasmo Jack de Sequeria (Dead) through L.Rs., AIR 2012 SC 1727 , such Suit cannot be maintainable against the true owner. According to the Apex Court, "As the possession of a care-taker, servant or agent is for and on behalf of his master or principal, as the case may be, for all purposes, the former cannot maintain a Suit against later on the basis of such possession. The care- taker, watchman or servant could never acquire interest in the property irrespective of his long possession; therefore, he had to give possession forthwith on demand. Courts are hence not justified in protecting possession of a care-taker, servant or any other persons, who are allowed to live in the premises for some time, either as a friend, relative, care-taker or as a servant."
17. Here in the case, as stated above, the Petitioner was not given exclusive possession. According to him, he was only in joint possession with M/s. Adhirat Trading Company and, as stated above, M/s. Adhirat Trading Company was prohibited from handing over possession, even for the sake of cultivation, to any other person. Therefore, now, in view of termination of Agreement with M/s. Adhirat Trading Company, it is the Respondent-Maharashtra State Agricultural Corporation Limited, which is having exclusive right and possession over the suit land. 13/18 WP-13712-17.doc ::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:41:05 ::: Therefore, Petitioner has no prima facie case to get the relief of interim injunction.
18. Learned counsel for the Respondent-Maharashtra State Agricultural Corporation Limited has, in this respect, also placed reliance on the Judgment of the Apex Court in the case of Premji Ratansey Shah & Ors. Vs. Union of India & Ors., MANU/SC/0819/1994 , wherein also it was reiterated that, when the possession of the Plaintiff is wholly unlawful or that of a tress-passer, an injunction could not be issued in favour of the tress-passer or a person, who is in unlawful possession, as against the owner. In paragraph No.5 of the said Judgment, it was held that, "It is equally settled law that injunction would not be issued against the true owner. Therefore, the Courts below have rightly rejected the relief of declaration and injunction in favour of the Petitioners, who have no interest in the property. Even assuming that they had any possession, their possession is wholly unlawful possession of a tress-passer and an injunction cannot be issued in favour of a tress-passer or a person, who gained unlawful possession, as against the owner, pretext of dispute of identity of the land should not be an excuse to claim injunction against true owner."
19. Learned counsel for the Respondent-Maharashtra State Agricultural Corporation Limited has also placed reliance on the 14/18 WP-13712-17.doc ::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:41:05 ::: Judgment of the Apex Court in the case of Mahadeo Savlaram Shelke and Ors. Vs. Puna Municipal Corporation and Anr., (1995) AIR (SCW) 1439, wherein the same principle that no injunction could be issued against the true owner at the instance of persons in unlawful possession was re-confirmed, as a settled position of law.
20. Further, he has also relied on the decision of the Apex Court in the case of Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by L.Rs. and Ors., AIR 2008 (SC) 2033, wherein, in paragraph No.13, it was categorically held that, "In a suit for permanent injunction to restrain the Defendant from interfering with Plaintiff's possession, the Plaintiff will have to establish that, as on the date of the Suit, he was in lawful possession of the Suit property and Defendant tried to interfere or disturb such lawful possession."
21. Here in the case, admittedly, the Petitioner is not in lawful possession of the suit land, as M/s. Adhirat Trading Company has no right or exclusive possession with it to part with the same in favour of the Petitioner and on termination of the Agreement, the said possession has, apparently, become illegal as on the date of filing of the Suit.
22. As regards the authority relied upon by learned counsel for the Petitioner that of Anamallai Club (Supra), it pertains to the possession of 15/18 WP-13712-17.doc ::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:41:05 ::: a person, who is proved to be Lessee and hence it was held that, even a Lessor with the best of title, has no right to resume possession-extra- judicially by use of force, from a lessee, even after the expiry of earlier termination of the lease by forfeiture or otherwise. Here in the case, the possession of the Petitioner is not proved to be that of a Lessee or even that of a Licensee. Hence, this Judgment cannot be of any help to the Petitioner.
23. Even the Judgment of this Court in the case of Baban Anantrao Naik (Supra), in which the reliance is placed on the Judgment of Rame Gowda (dead) by L.Rs. Vs. M. Varadappa Naidu (dead) by L.Rs. and Anr., 2004 (1) SCC 769, cannot be of any assistance to the Petitioner, as, in the said Judgment, the possession of the Plaintiff was found to be exclusive and long settled. Here in the case, the Petitioner is neither proved to be in settled possession, nor even in the possession also, but he claims to be cultivating the suit land jointly with or for and on behalf of M/s. Adhirat Trading Company. When M/s. Adhirat Trading Company itself was prohibited from doing so, the Petitioner had no right to claim that, he is in possession of the suit land.
24. It is also pertinent to note that, the Petitioner has not joined M/s. Adhirat Trading Company as a party to the Suit, though he claims that he has received possession from the said Company. Therefore, there 16/18 WP-13712-17.doc ::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:41:05 ::: appears much substance in the submission advanced by learned A.G.P. that this is a collusive Suit filed by M/s. Adhirat Trading Company by joining hands with the Petitioner, so as to give go-bye to the termination of the Agreement and, some how or other, to retain the joint-cultivation.
25. In such situation, the Suit, simplicitor, for injunction also cannot be tenable, as held by the Madras High Court in the case of M. Ramamoorthy and Ors. Vs. R. Thirunavukkarasu, MANU/TN/1828/ 2015, relied upon by learned counsel for the Respondent-Maharashtra State Agricultural Corporation Limited.
26. In view thereof, the impugned order of interim injunction passed by the Trial Court, being against the factual aspects and also against the settled position of law, the Appellate Court was justified in interfering in the said order and setting it aside.
27. The impugned order, therefore, passed by the Appellate Court does not call for any interference. The Writ Petition, hence, being devoid of merits, stands dismissed.
28. Rule is discharged.
29. At this stage, learned counsel for the Petitioner requests the Court 17/18 WP-13712-17.doc ::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:41:05 ::: to extend the interim relief, which was running till date, for a further period of four weeks. Learned counsel for Respondent Nos.1 and 2 strongly opposed the said prayer. For the reasons stated here-in-above, as the possession of the Petitioner is held to be illegal and unlawful, the interim relief cannot be extended. Hence, this prayer stands rejected.
[DR. SHALINI PHANSALKAR-JOSHI, J.] 18/18 WP-13712-17.doc ::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:41:05 :::