CHANDAPA BALAPA GUNJIKAR Vs. SILCA INDUSTRIES

JUDGEMENT

(1.) THE substantial questions of the law which arise for consideration in this appeal are:

(2.) THE facts in brief relevant for the decision are that the. respondent herein filed a suit for injunction and in the alternative for possession of the suit property on the ground that the appellant had granted lease of the eastern half of plot bearing Survey No. 28/2 situated at Dicarpale, Davorlim -Goa admeasuring an area of 483 sq. metres for annual rent of Rs. 3250/ - on execution of a lease deed for initial period of 11 months. Prior to the grant of lease by a document of sale dated 3rd March, 1987 the appellant had sold to the respondent a crusher installed in the suit plot and hypothecated to the Karnataka Bank and Dena Bank and the respondent had cleared the loan dues as well as paid all other dues except the amount of Rs. 10,000/ - outstanding with the Karnataka Bank. The respondent has thereafter constructed a platform in the suit plot for efficient performance of the crusher. The respondent also paid Rs. 3250/ - for the first year as rent and subsequent rent was due by the end of July, 1988. Till June, 1988 the respondent carried on business without any intervention by the appellant. However, since June, 1988 the appellant started obstructing the employees from operating the crusher. By notices dated 6th October, 1988 and 31st October, 1988 addressed on behalf of the appellant, the respondent was called upon to pay rent of Rs. 3250/ - from the year starting from August, 1988 and also to pay the Bank dues. In January, 1989 the compressor which was out of order was repaired and the respondent was about to commence the operation of the crusher when the appellant obstructed the employees of the respondent from entering the premises and thereby did not permit the respondent to operate the crusher, hence the suit. It is the case of the appellant that no lease in respect of the suit plot was created in favour of the respondent and there was only an understanding to the effect that as long as hypothecation of the crusher with the Bank continues, the respondent would operate the crusher and thereafter would remove and dismantle the crusher and would take it away. The amount of Rs. 3250/ - which was paid by the respondent was as compensation and not the rent for one year. On account of failure on the part of the respondent to pay the bank dues, the crusher was attached in execution of decree by the Court. It was only on account of pressure from the Bank for repayment of the entire loan against the crusher that the appellant had approached the respondent various times to help him and to operate the crusher till the end of 1988 and the same was agreed orally and there was no written agreement.

(3.) THE Trial Court held that all the facts brought on record show that the lease was for a period of one year initially and admittedly the lease deed was required to be registered and, therefore, the same having not been registered could not be looked into. However, the appellant has admitted that the respondent was allowed to use the suit plot only for a period of 6 months initially and thereafter the period was extended till the month of December, 1988 so that the respondent could repay the loan amount of the crusher. However, the possession of the suit plot with the respondent was admitted by the appellant. As regards the issue of lease the Trial Court held that the respondent had failed to establish that he is the lessee in respect of the suit plot since the document of lease could not be proved on account of want of registration. The Trial Court, however, held that considering the fact that the respondent was admittedly in possession of the suit plot and he was forcibly dispossessed by the appellant, the respondent was entitled for restoration of possession.