Baliram Dagadu Mundfane vs Managing Director , Maharashtra ...
2017 Latest Caselaw 10025 Bom

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               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

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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

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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

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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

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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

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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

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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.

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 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

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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

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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

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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.

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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

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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

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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

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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

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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.]

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