(1) The petitioner is plaintiff. He instituted the suit for an injunction to restrain the defendants from disturbing his possession and working of the visakha flour mill (which will hereinafter be referred to as "the mill"). He obtained in the trial court temporary injunction pending the suit. The appellate court vacated that injunction. This revision is for setting aside the order of the appellate court and for the restoration of the trial court's order granting temporary injunction.
(2) The mill is located in visakhapatnam. The premises was originally owned by the 2nd defendant. The 1st defendant is the son - in - law of the 2nd defendant. The 3rd defendant is the 2nd defendant's son. The 4th defendant is a relation of the 2nd defendant. The 2nd defendant executed gift deeds endowing a 6 annas share of the mill to the 3rd defendant, another 6 annas share to the 4th defendant and a 2 annas share to the 1st defendant and retained for himself the 2 annas share. In the year 1970, the defendants 1 to 4 leased out the mill under a registered lease deed dated 10th june, 1970 to the plaintiff on an annual rental of rupees one lakh. The lease was for four years and it came into effect by agreement of parties so as to result in the expiry of the period of four years by 31st october, 1975. By the time the original lease period expired, defendants 1 to 4 owed more than rs. 2,80,000 to the plaintiff and lease was extended for a further period of three years from 1st november, 1975 to 1st november, 1978. On 31st march. 1978, a one anna share was sold by the 3rd defendant to the 5th defendant. While so, the 1st defendant addressed a letter dated 18th october, 1978 to the plaintiff requesting him to vacate the mill within ten days from the date of the receipt of the notice. By this time, the defendant owed the plaintiff more than rupees four lakhs. Suspecting that the defendants might attempt to take forcible possession of the mill, the plaintiff wrote a registered letter dated 26th october, 1978 to the 1st defendant marking a copy to the district collector. Visakhapatnam. He sent another letter to the superintendent of police, visakhapatnam. On 27th october, 1978, the plaintiff received a letter written by defendants 3 and 5 intimating him that the lease period was extended for a further period of three years from 1st november, 1978. Subsequently, on i3th december, 1978, the plaintiff instituted the suit alleging that the 1st defendant made a vain bid with the assistance of the police to take forcible possession of the mill at about 10 - 30 p. M. On 11th december, 1978 and that the 1st defendant is still trying to take forcible possession even though he and other defendants owed a sum of rs. 4,33,00/ - 18ps. By 31st october, 1978 and the lease was extended by three years. It is prayed by plaintiff that, until evicted from the mill premises in due course of law, the defendants should be restrained from causing any acts of disturbance to his possession and enjoyment of the mill.
(3) The plea of the 1st defendant is that the lease was not extended beyond 31st october, 1978. It was the 1st defendant alone that was managing the property on behalf of all the co - owners and the plaintiff voluntarily delivered possession of the suit premises late in the evening of llth december, 1978. While delivering possession, the managing partner of the plaintiff informed the 1st defendant that he would be lifting the stocks and all records and other furniture the next day and locked them, but did not comply with his promise. On the other hand gave a false report at the police station. According to the 1st defendant, the plaintiff voluntarily delivered possession of the mill on 11th december, 1978 and he cannot, therefore, seek an injunction in regard to the mill of which he has no possession by the date of the suit.
(4) The trial court disbelieved the 1st defendant's plea of the plaintiff giving up possession of the mill voluntarily. The appellate court also accepted this finding, but held that the plaintiff was forcibly dispossessed in the night of the llth december, 1978.
(5) Sri p. Babul reddy, the learned counsel for the positioner, contends that the finding of forcible dispossession arrived at by the appellate court is unwarranted. It is argued that it is not specifically pleaded by the defendants and that, in the absence of plea, it would not be open to the court to arrive at such a finding. It is also argued that, in so far as the plaintiff's possession of the mill is admitted till the llth of december, 1978 and both the courts have disbelieved the defendant's specific plea of voluntary surrender of possession in the night of the llth december, 1978, the appellate court ought not to have vacated the injunction when the suit is filed on the 13th of december, 1978,
(6) Sri p. Shiv shankar, the learned counsel for the contesting 1st defendant - respondent contends that, in the circumstances of the case, though it was not specifically pleaded that the plaintiff was forcibly dispossessed in the night of the 11th december, 1978, it was perfectly open to the court to arrive at such a conclusion in the light of the evidence available on record and the appellate court was therefore justified in vacating the injunction. It is further argued by sri shiv shankar that, even if it is to be held that the plaintiff did not voluntarily surrender possession or was not forcibly dispossessed, still, he is not entitled to any injunction, as his theory of "promise to extend the lease" is false and at any rate, invalid and that; therefore, he is mere tenant - holding over on and from 1st november, 1978, without any legal right to possess the property. It is vehemently contended by sri shiv shankar that, in so far as the lease period expired by the 31st of october, 1978. The plaintiff, being a tenant - holding over without the consent of the true owner, is a mere trespasser and cannot claim the equitable relief of injunction against the true owner, who has every right of re - entry eversince the expiry of the lease.
(7) No doubt, if a party claims relief on a specific ground, it would not be open to the party to sustain the claim on the ground which is entirely now and not pleaded by him. In the instant case, the 1st defendant specifically pleaded that the plaintiff delivered possession volu tarlly, but from a consideration of the facts and circumstances of the case, the appellate court found that possession was taken from the plaintiff forcibly. In bhagwati v. Chandramaul, their lordships of the supreme court observed as follows :
"the general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings, would be purely formal and technical and cannot succeed in every case". What the court has to consider in dealing with such an objection is : did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? if it appears that the parties did not know that the matter was in issue at the trial and one of them has no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the court cannot do injustice to another. "
Where the vital issue is whether the plaintiff lost possession in the night of the 11th december, 1978 and did not thus have possession on the date of the suit, it cannot be said that the court is precluded from arriving at a conclusion of the plaintiff not having possession on the date of the suit, if the evidence shows that the plaintiff was forcibly dispossessed even though such forcible dispossession was not specifically pleaded by the defendants, who merely pleaded, perhaps due to fear, voluntary surrender of possession by the plaintiff. The question, however, is whether, in the state of the evidence available on record, the appellate court is justified in arriving at a finding of forcible dispossession of the plaintiff from the mill in ths night of the hth december, 1978.
(8) Soon after the suit was instituted on 13th december, 1978, a commissioner was appointed to inspect the premises. His report shows that there was a board in the mill displaying the stock position and price list of wheat and wheat products as on hth december, 1978. His report further shows that, on 15th december, 1978, when he inspected the mill, he found huge stocks of wheat, maida, rawa, etc. , in the mill premises. The stocks were found lying in various rooms and godowns. The commissioner further found unfinished products of rawa inside the machine with insects and part of the rawa was in the form of lumps. He also found some materials scattered on the floor and some running stock in the machine. The commissioner's report clearly shows that the mill was abruptly stopped while it was working and there were stocks in the mill scattered on the floors. In the first floor quarters, the commissioner found that all the four rooms were locked and when they were opened, he found some clothing material and beds etc. He also found two steel almyrahs and two tables. In one of the almyrahs, he found cash of rs. 1,501. In the drawers of a table, he found a receipt for rs. 60,000 issued in favour of the plaintiff. These facts unmistakably indicate that the plaintiff did not vacate from the premises in the night of hth december, 1978, despite a desperate attempt on the part of the 1st defendant to have forcible possession. Even according to the 1st defendant, the plaintiff's managing partner promised to vacate from the premises the next day, but did not. Under the circumstances, there can be little doubt that the plaintiff did not lose possession by the date of suit. A mere wrangle or scramble for possession without gaining actual possession does not amount to dispossession of the possessor. The essential elements of possession are corpus (occupation) and animus (intention) and loss of either results in the loss of possession. When neither element is lost possession is not lost, fugitive or clandestine acts attempting to dispossess the possessor cannot amount to dispossession of the possessor as long as the possessor has both corpus and animus. The entire mill premises was in the occupation of the plaintiff even after the 1st defendant entered the same with the assistance of the police. According to the 1st defendant himself, on a promise made by the managing partner of the plaintiff to vacate the next day, the plaintiff continued to occupy the premises. He locked all the rooms and went away. Next morning, he gave report to the police alleging attempts at forcible dispossession by the 1st defendant. In such circumstances, it would not be permissible to hold that the plaintiff lost possession of the mill premises merely because of the solitary act of trespass committed by the 1st defendant. Considering all the facts, the learned trial judge observed at the end of paragraph 8 of his order:
"whatever it be, the material on record does not show that d - 1 used force and took forcible possession of the mill premises"
. There was no proper material for the learned appellate judge to disturb this finding of fact arrived at by the learned trial judge. Under these circumstances, i have no hesitation to agree with the conclusion of the trial judge that the plaintiff did not lose possession of the mill premises by the date of the suit either because of any voluntary act on his part or because of any high - handed act on the part or the 1st defendant.
(9) The next question is whether, on the date of the suit, the plaintiff was a tenant or a mere tenant at sufferance. Though there is the letter of the defendants 3 and 5 on record showing the lease has been extended for a further period of three years from 1st november, 1978 and though the huge advance of more than rupees four lakhs made by the plaintiff to the defendants makes it probable that the lease was extended, according to the evidence available now on record in this interlocutory proceeding, it cannot be said that the 1st defendant also agreed for the extension of the lease. Where property belongs to several co - owners, valid extension of the lease can be made only by all the co - owners and not by some of them. It may therefore be taken for the purpose of this proceedings - though it may be possible to arrive at a different conclusion after the trial of the suit in the light of the evidence that may be adduced during the trial - that the plaintiff is a mere tenant at sufferance and not a regular tenant, who, however, has the possession of the premises and did not surrender possession soon after the expiry of the lease period.
(10) Sri shiv shankar contends that a tenant, whose period of the lease expired and whose continuance after the expiry of the lease is not consented to by the landlord, has no legal right to continue in possession, that his possession is wrongful and that, therefore, he is not entitled to obtain an injunction against the lessee, who has every right of re - entry soon after the determination of the lease. In support of this submission, reliance is placed on the decisions of n. H. Thadani v. Chief settlement commissioner alamelu achi v. Ponniah; ouseph lonan v. K. Pisharady and m. C. Chockalingam v. Manicka vasagam:
(11) In n. H. Thadani's case, a division bench of the punjab high court held that a tenant at sufferance stands very nearly on the same footing as a trespasser, that he is a wrong doer, that he has no terms nor estate nor title and that he stands in no privity with the owner who may re - enter when he pleases. These observations were made by the bench while considering whether the possession of a tenant at sufferance is lawful and whether such a tenant is entitled to claim the special protection afforded by section 29 of the displaced persons (compensation and rehabilitation) act, 1954. The special protection under section 29 of the said act can be claimed only by persons who are positively in lawful possession of immovable property. It is not enough if the possession of a person is merely not unlawful for him to claim the protection under section 29 of the said act. There can be no dispute that the possession of a tenant at sufferance is not positively lawful. The decision cannot therefore be of aay help to the respondent in support of his contention. Ii any however be noticed that the division bench merely observed that a tenant at sufferance stands "very nearly on the same footing as a trespasser" and did not hiwever, characterise him as a trespasser.
(12) In alamelu achi's case, a suit for declaration of title and for injunction against the defendant in respect of the suit property was filed, the trial court and the first appellate court concurrently found that the plaintiff was not entitled to the property by adverse possession. While the trial court dismissed the suit, the first appellate court issued an injunction against the defendant having found that, on the date of suit, the plaintiff was in possession, though such possession was not for the necessary statutory period to prescribe title. In second appeal, the injunction was vacated and the plaintiff's suit was dismissed by the high court. It was held that, if a person is in wrongful possession of the property, he is not entitled to be protected against the lawful owner by an order of injunction and that the fact that, if ths lawful owner were to institute a suit, hs might possibly fail on the ground that he was not in possession within 12 years of suit, would make no difference and cannot be a justification for the issue of an injunction maintaining the wrongful possession of the plaintiff. The plaintiff in thai case was a trespasser whose possession is positively wrongful. The decision is no authority in the case of applications for injunctions filed by tenants who were inducted into possession of property lawfully and later however continued to hold over the property even after the expiry of the period of lease against the consent or willingness of the landlord.
(13) In ouseph lonan't ease, it was observed that:
"when once there is an unequivocal demand for possession by the landlord after the termination of the tenancy either by efflux of time or by a legal notice to quit, the possession of the tenant, if he has no other valid claim to remain in possession, would assume the character of trespass"
.
This observation was made by the full bench in the course of its discussion. The full bench no doubt observed that the possession of a quondam tenant would assume the character of trespass; but the full bench did not give any express finding that the possession becomes the possession of a trespasser, the observation is very much akin to the observation in n. H. Thadani's case, where the division bench observed that a tenant at sufferance stands very nearly on the same footing as a trespasser. Though the distinction between possession which is trespass and possession which assumes the character of trespass it very slight, it is real and the two kinds of possession cannot be equated with each other. The possession of a tenant at sufferance is initially lawful and be cannot be equated to a trespasser whose possession is unlawful even in its inception. While ths possession of a trespasser is throughout unlawful, the possession of a tenant at sufferance is never unlawful though it ceases to be lawful as soon. As the lease period expires. In ouseph lonan's case, it was clearly held that, even though a tenancy has been determined by efflux of time or by notice to quit and a decree obt lined by the landlord for recovery of possession of the property, the quondam tenant remaining in possession will get fixity of tenure by virtue of section 13 of the kerala land reforms act (i of 1964). The full bsnch finally held that "the scheme of section 13 is to confer fixity of tenure on such 'trespassers' for the reason that they came into possession of the property as tenants and not by trespass, their continuance in possession, notwithstanding the determination of the tenancy though technically a trespass, being clearly referable to their lawful entry as tenants.
(14) In m. C. Chockalingam v. Manickavasagam, their lordships of the supreme court observed as follows in paragraph 16 of the judgment:
"in the instant case, under the terms of lease, the property had to be handed over to the lessor. Besides under section 108 (q) of the transfer of property act, on the determination of the lease, the lessee is bound to put the lessor into possession of the property. Since the landlord has not assented to the lessee's continuance in possession of the property, the lessee will be liable to mesne profits which can again be recovered only in terms of his wrongful possession"
.
Their lordships have pointed out how a lessee, who does not put the lessor in possession of the property after the expiry of the lease, would be liable to mesne profits and the observation cannot be construed as if their lordships held that the possession of a tenant at sufferance is unlawful or that of a trespasser. The possession of a tenant holding over against the consent of the landlord is technically wrongful in the sense that it is not positively lawful. In this very case, their lordships have clearly pointed out that the possession of a tenant after the expiry of the period of lease is juridical possession and that such possession is protected by law agaiast wrongful dispossession though it cannot be equated with lawful possession.
(15) The law in our country respects possession, even if there is no title to support it, and it discourages the use of force or violence even if such use is for the enforcement of a valid right. Though a tenant at sufferance las no legal right to continue and his possession is mostly wrongful, in the interests of public order and the maintenance of public peace and tranquillity, the courts in our country have recognised his possession to be juridical possession. A tenant at sufferance enters into possession of the property lawfully. He continues in possession lawfully until the term of his lease expires. The landlord may be entitled to the possession of the property after the expiry of the period of lease; but the law of our country does not permit the landlord to use violence or force to take possession. Though the law of injunctions originated from the equity courts in england and an injunction is essentially an equitable relief, the courts in our country have to deal with applications for injunctions in accordance with the provisions of the law contained in the specific relief act and the code of civil procedure. The provisions relating to injunctions in the indian law place the grant of an injunction in the discretion in the courts, which means discretion guided by law and regulated by well - settled judicial principles. Section 6 (old section 9) of the specific relief act provides that, if any person is dispossessed without his consent of immovable property otherwise than in due course of law he or any person claiming through him may, by suit instituted within six months from the date of dispossession, recover possession notwithstanding any other title that may be set up in such suit. The object of the provision is to provide a speedy remedy for persons in physical possession of the property if they are forcibly dispossessed from such property against their will and consent. The provision is intended to condemn self - help involving force or violence leading to breach of public peace. A landlord may have a right to take possession of the property from a tenant at sufferance, but he cannot do so forcibly when the tenant is unwilling to deliver possession. The proper course open to the landlord is to seek redress in a court of law. It is not open to the landlord to take the law into his own hands and enforce his right by the use of violence or force. If he does so without any reference to the superiority or absoluteness of his title, he will be directed to restore possession to the tenant at sufferance, if the latter institutes a suit 'under section 6 of the specific relief act within the period of limitation.
(16) Sri shiv shankar contends that section 6 of the specific relief act is a special provision which can be invoked by a tenant at sufferance only on forcible dispossession and that there is no similar provision enabling a tenant at sufferance to seek the equitable remedy of injunction before he is forcibly dispossessed. No doubt, section 6 of the specific relief act is a special provision enabling the institution of a suit for recovering possession; but the provision clearly recognises the right to retake possession once the possession is taken forcibly when the law recognises such a right it is not necessary for the person, in whose favour the right is recognised, to wait until the infringement of that right and seek redress only after the infringment. It is perfectly open to him to approach the court for an injunction prohibiting the threat to invade his right. As rightly pointed out by sri babulu reddy, the learned counsel for the petitioner, if the argument of sri shiv shankar that a tenant at sufferance has no right to maintain a suit for injunction, though he has a right to recover possession under section 6 of the specific relief act, is to be accepted, the result would be anomalous. A tenant at sufferance will have to file have a suit under section 6 of the specific relief act for recovering possession every time he is disposessed and the the process goes on for all time without the true owner taking recourse to law at any time and the law of our country does not countenance such a ridiculous situation. The possession of a tenant at sufferance is held by the courts to be juridical i. E. , legal. Such possession is entitled to be protected until the tenant at sufferance is evicted in due course of law.
(17) In k. K. Verma v. Naraindas c. Malkani chagla, c. J. Observed :
"under the indian law the possession of a tenant who has ceased to be a tenant is protected by law. Although he may not have a right to continue in possession after the termination of the tenancy his possession is juridical and that possession is protected by statute. Under section 9 of the specific relief act, a tenant who has ceased to be a tenant may sue for possession against his land - lord if the landlord deprives him of possession otherwise than in due course of law, but a trespasser who has been thrown out of possession cannot go to court under section 9 and claim possession against the true owner"
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This view of chagla, c. J. , has been approved by the supreme court in yeshwant singh v. Jagdish singh wherein their lordships held that a landlord commits trespass when he forcibly enters on land in the possession of a tenant whose tenancy has expired. In yeshwant singh's case their lordships have clearly expressed that they did not agree with the conclusion of the calcutta high court that a lessor is entitled in india to use force to throw out his lessee, and overruled the decision of the calcutta high court in state of west bengal v. Virendra nath basunia.
(18) In a. A. Abdul rasheed v. L. M. Basheer ahmed it was held that a lessee, who continues to be in possession after the expiry of the period of lease, has strong grounds to have his possession protected till the disposal of the suit, in which he seeks to get the suit properties for himself by means of a prayer for specific performance. There can, therefore, be no doubt that the possession of a tenant at sufferance is entitled to protection until he is evicted by due process of law. If the court is satisfied that there are attempts to forcibly deprive a tenant at sufferance of his juridical possession of the property, the court will restrain such attempts even if such attempts are by the true owner.
(19) In the light of the above discussion, i find that the order of injunction pending suit issued by the trial court in petitioner's favour is eminently justified and the appellate court ought not to nave vacated the same.
(20) Sri shiv shankar contends that, even if the order of the appellate court is erroneous, it would not be proper for the high court to interfere with the same while acting under section 115, civil procedure code. I am unable to find any substance in this contention also. No doubt, the appellate court had every jurisdiction to vacate the injunction but it is clear from the facts of the case that in exercising its jurisdiction as an appellate court, it acted illegally and with material irregularity. The order of injunction was vacated on two grounds : the first is that the plaintiff did not have possession in so far at he was forcibly dispossessed ; and the second is that the possession of the plaintiff is wrongful. The finding of the plaintiff having been forcibly dispossessed is wholly unwarranted and does not arise from the material available on record. The view that the possession of a tenant at sufferance is wrongful and that, therefore, he is not entitled to an injunction is totally incorrect and runs counter to the law enunciated by the supreme court in yeshwant singh v. Jagdish singh and m. C. Chockalingam v. Manickavasaga. It is therefore, not only open to this court, but it is its duty to set aside the highly improper order of the appellate court in the exercise of its revisional jurisdiction under section 115, civil procedure code.
(21) For the reasons recorded, this revision is allowed. The order of the learned first additional district judge passed in c. M. A. No. 44 of 1978 is set aside and the order of the learned principal subordinate judge passed in i. A. No. 917 of 1978 dated 23rd december, 1978 is restored. No costs. Revision allowed.