PETITIONER:
TAHERAKHATOON (D) BY LRS.
Vs.
RESPONDENT:
SALAMBIN MOHAMMAD
DATE OF JUDGMENT: 26/02/1999
BENCH:
S.B. MAJMUDAR. & M. JAGANNADHA RAO.
JUDGMENT
M.JAGANNADHA RAO,J.
This appeal has been preferred by the
plaintiff in the suit against the judgment and
decree of the Bombay High Court in S.A.No.543 of
1979 dated 19.1.1987. By that judgment the Second
Appeal was allowed, the judgment dated 16.3.1979 of
the lower appellate court decreeing the plaintiff-
appellant’s suit was set aside and the judgment of
the trial court in Civil Suit No. 151 of 1975
passed by the Third Joint Civil Judge, Junior
Division, Aurangabad dated 23.2.1977 was restored.
The dispute between the parties, who are
neighbours, covers an extent of 25’ x 11’ upon
which the defendant constructed two rooms. The
appellant’s case is that the above extent is part
of the appellant’s property and that the defendant-
respondent has encroached upon it and has made the
construction of the two rooms. The suit is for
possession of the area of 25’ x 11’ and for
directing removal of the two rooms. Pending these
proceedings, the plaintiff-appellant died and her
legal representatives were brought on record.
The brief facts of the case are as follows:
The plaintiff-appellant purchased open space
75’ x 25’ from the common-owner, one Mohd. Ali on
14.1.1966 for Rs.700 under a registered sale deed
in Mohalla Shahabazar in Aurangabad town.
According to the Plaintiff, she constructed two
rooms on Western side of the purchased portion
leaving some open space on the eastern side and
long thereafter, the defendant purchased land from
the same vendor, Mohd. Ali on the eastern side on
13.12.1967 and allegedly occupied the disputed area
of 25’ x 11’ in question on 30.12.1967.
Subsequently, defendant is said to have illegally
constructed those two rooms on this area without
the permission of the Municipality. Plaintiff
alleges she complained to the Town Surveyor who
came to survey the properties but he did not
consider her claim but advised her to go to a Civil
Court. The plaintiff issued notice on 14.6.1974
and the defendant sent reply refusing to vacate or
remove the construction. The suit was, therefore,
laid on 14.2.1975 for possession of the land, for
mandatory injunction for removal of the two rooms
and for damages for 3 years, at Rs.600 in all.
The defendant-respondent contended that prior
to his purchase under sale deed dated 13.12.1967,
he had entered into an agreement of purchase on
10.2.1962 for an extent of land of 53’ x 23 yards
2’ which included the disputed portion and that he
had constructed the two shops long before
14.1.1966, when the plaintiff purchased the vacant
piece of land by the side of the land which he had
purchased under the agreement. According to him,
there was no question of any encroachment on
30.12.1967.
On these pleadings, the trial Court framed
various issues and held that the evidence of the
witnesses produced by the plaintiff was not
acceptable and that plaintiff had failed to prove
her ownership over the disputed site.
Consequently, the plaintiff must be deemed to have
failed in proving encroachment by defendant from
30.12.1967. The defendant had examined DW2, the
attestor of the agreement of purchase dated
10.2.1962 who was also the mason who was engaged
for construction of the rooms. DW3 was one of the
attestors of the defendant’s sale deed. The trial
Court held that in view of the agreement of sale
and possession under the agreement of sale of
10.2.1962, the defendant was entitled to the
protection of section 53-A of the Transfer of
Property Act. The suit was, therefore, dismissed.
The plaintiff appealed before the Joint Judge
at Aurangabad who reversed the judgment and decree
of the trial Court holding, inter-alia, that the
suit site formed part of the land conveyed to the
plaintiff under the sale deed dated 14.1.1966 and
that if that be so, the same vendor had no right to
convey the disputed area by including the same in
the sale deed dated 13.12.1967 along with other
land sold in favour of the defendant. The
agreement of purchase dated 10.2.1962 set up by the
defendant was written up in Urdu on a small piece
of white paper (with a revenue stamp annexed) and
was not a genuine document but was obviously an
ante-dated one. If the agreement was not true, the
defendant could not have come into possession of
this overlapping part in 1962 nor could he have
constructed the two rooms before the sale deed
dated 13.12.1967 was executed in his favour. There
were also various other circumstances which proved
that the agreement of sale could not be true,
namely that while the consideration for the
agreement was Rs.300, only Rs.50/- was paid in 1962
and the balance of Rs.250/- remained payable at the
time of registration of the regular sale deed.
There was undue delay between the date of the
agreement of 1962 and the date of sale-deed in 1967
and this circumstance improbablised the agreement.
The defendant never gave any notice to his vendor
for 5 1/2 years seeking execution of sale deed.
The recitals in the latter sale-deed dated
13.12.1967 showed that defendant was aware of
plaintiff’s sale-deed dated 14.1.1966. The plea
that defendant constructed two rooms long before
plaintiff’s sale deed of 14.1.1966 was not
acceptable inasmuch as the plaintiff would have
objected if the vendor was selling land over which
the defendant had already built two rooms.
Further, the signature of Mohd. Ali, the vendor
was not on the revenue stamp. What was quite un-
understandable was that the boundary description of
the plot in the so called agreement of 1962 showed
the name of the plaintiff as the owner of the
property on the west, even though by 10.2.1962
plaintiff had not purchased the land on the West.
The Appellate Court observed that though the name
of the plaintiff was found mentioned in the
agreement of 1962, it appeared to have been struck
off later. All these circumstances showed that the
agreement was not true. Even if the agreement was
true, it would not create any title in favour of
the defendant unless a suit for specific
performance was filed and a sale deed was obtained.
Inasmuch as the plaintiff had proved title and the
defendant had encroached, the suit for possession
was required to be decreed and the two rooms were
liable to be removed. Mesne profits were
accordingly allowed at one rupee per month, in all,
Rs.36 for 3 years. In the result, the suit was
decreed as stated above.
In Second Appeal by the defendant, the learned
Single Judge of the High Court reversed the
appellate decree, in a brief judgment stating that
the "reasons given for not believing the agreement
by the learned (Appellate) Judge, are not cogent
and convincing". The learned Judge observed that
it was common knowledge that at the time of an
agreement, the entire consideration would not be
paid. The fact that the vendor’s signature was not
found on the revenue stamp was not relevant. The
first appellate court was wrong in thinking that
plaintiff’s name was found in the 1962 agreement
and was scored off. This was factually incorrect.
On these grounds, the learned Single Judge held
that the lower appellate court erred in not
accepting the genuineness of the agreement of 1962
set up by the defendant. The agreement was true.
Therefore the defendant must succeed. The Second
Appeal was accordingly allowed and the suit was
dismissed.
In this appeal by special leave, learned
counsel for the appellant-plaintiff contended
before us that the High Court did not frame any
substantial question of law and that it could not
have gone into the correctness of a finding of fact
and that the finding regarding the genuineness of
the agreement of 1962 was binding in Second Appeal.
On the otherhand, learned counsel for the
respondent-defendant contended that even assuming
that the agreement was not true, the plaintiff
having purchased the property on 14.1.1966 came
forward with a plea in the plaint that she knew
that the defendant trespassed into the site on
30.12.1967 but she did not issue any notice for
removal of the two rooms till 14.6.1974. She was
the next door neighbour. Notice dated 14.6.74 was
also belated and even then, she did not allege any
forcible trespass by the defendant, as now stated
in the plaint. The suit was filed only on
14.2.1975. The plaintiff should not have kept
quiet when the construction was going on if, as
alleged in the plaint, she was conscious of the
trespass by the defendant. It was contended that
inasmuch as the plaintiff stood by when the
construction was being made bonafide by the
defendant, this Court, in exercise of its
discretion under Article 136, which discretion is
available even after grant of leave - should not
interfere and the plaintiff should not be granted
possession coupled with a right to have the rooms
removed. This Court has also power under Article
136 to mould the relief and grant compensation. In
any event, this Court could invoke Article 142 of
the Constitution of India, in the interests of
justice.
The points that arise for consideration in the
appeal are:
(1) Whether the High Court could have
interfered with the finding of fact relating to the
genuineness of the agreement of sale deed dated
10.2.1962 and that too without framing a
substantial question of law?
(2) Whether the discretionary power available
to this Court at the time of grant of special leave
continues with the Court even after grant of
special leave and when the appeal is being heard on
merits and whether, this Court could declare the
law and yet not interfere or could mould the
relief? Or whether, once the law is declared, this
Court is bound to grant possession and the
mandatory injunction?
(3) Whether it is necessary to invoke the
powers of this Court under Article 142?
(4) To what relief?
Point 1:
At the outset, it must be stated that the High
Court erred in not framing a substantial question
of law as required by section 100 CPC. In view of
the Judgments of this Court in Kshitish Chandra
Purkait vs. Santosh Kumar Purkait & Others [1997
(5) SCC 438] and Sheel Chand vs. Prakash Chand
[1998 (6) SCC 683] the High Court should have
framed a substantial question of law and then only
disposed of the Second Appeal. Again it could not
have interfered with pure finding of fact. We have
earlier set out the basis of the finding of the
appellate court in this behalf. The finding is
based upon a rejection of the oral evidence adduced
in the case. It is true that one of the reasons
given by the first appellate Court namely that the
agreement of 1962 contained a reference to the
plaintiff’s name (who came into the picture only in
1966) is not factually correct and the High Court
was right in pointing out this error. But the
finding of the first appellate Court is not based
only on the said fact. The finding was based on
the rejection of the evidence of the attestor of
the agreement and the evidence of the defendant in
relation to the said agreement. Other facts relied
upon are the long gap of 5 1/2 years between the
date of the alleged agreement of sale and the
defendant’s sale deed and that the agreement is
written up on a small piece of paper with a revenue
stamp affixed thereon and not upon regular non-
judicial stamp papers. These circumstances are all
relevant in considering the genuineness of the
agreement. As long as there is some material for
the rejection of the document, the Second appellate
Court ought not to have interfered with the
abovesaid finding of fact. For the above reasons,
we are constrained to set aside the said finding of
the High Court. Point 1 is decided accordingly.
Points 2 and 3:
These points relate to the plea of the
defendant that on the facts of this case this Court
should not, in exercise of its discretion,
interfere under Article 136 even if this is a stage
long after the grant of special leave. Point also
is whether it is necessary to invoke Article 142.
It will be noticed that the plaintiff
purchased the land by sale deed dated 14.1.1966
while the defendant’s sale deed is dated
13.12.1967. The plaint says that the defendant
forcibly trespassed into this piece of land on
30.12.1967 with the help of anti social elements
and that the plaintiff protested. That means that
plaintiff was conscious of the trespass even on
30.12.1967. Though the plaintiff was the next door
neighbour the fact remains that the plaintiff did
not seek to intervene immediately either by issuing
a notice or by filing a suit for permanent
injunction with an application for temporary
injunction. On the otherhand, the plaintiff
allowed the defendant to construct the two rooms.
In the cross-examination, the plaintiff admitted as
follows:
"I cannot tell the day pertaining to this
encroachment, but the encroachment was
committed during night hours. We did not
tell any body on the very next day about
this encroachment. Thereafter also we
did not tell anybody.......We being
government servants, we did not lodge
complaint with the police in this
respect. It is true that I am not a
government servant."
The evidence of plaintiff who was the
immediate neighbour proceeds on the basis that she
knew about the trespass in December 1967 itself,
though she filed the suit in 1975. The explanation
was that inasmuch as the plaintiff’s husband was a
government servant, they did not make any
complaint.
It is in the background of the above
circumstances that we have to consider the plea of
the respondent defendant based upon Article 136 of
the Constitution of India. We should not, in this
connection, be understood as deciding any question
of estoppel for there is no plea of estoppel in the
written statement nor any argument in the Courts
below. Our discussion is confined only to exercise
of discretion under Article 136.
It is now well settled that though special
leave is granted, the discretionary power which
vested in the Court at the stage of the special
leave petition continues to remain with the Court
even at the stage when the appeal comes up for
hearing and when both sides are heard on merits in
the appeal. This principle is applicable to all
kinds of appeals admitted by special leave under
Article 136, irrespective of the nature of the
subject matter. It was so laid down by a
Constitution Bench of five learned Judges of this
Court in Pritam Singh vs. The State [1950 SCR
453]. In that case, it was argued for the
appellant that once special leave was granted and
the matter was registered as an appeal, the case
should be disposed of on merits on all points and
that the discretionary power available at the stage
of grant of special leave was not available when
the appeal was being heard on merits.
This Court rejected the said contention and
referred to the following dicta of the Privy
Council in Ibrahim vs. Rex [AIR 1914 A.C. 615]:
"........ the Board has repeatedly
treated applications for leave to appeal
and the hearing of criminal appeals as
being upon the same footing: Riel’s Case
[1885-10 A.C. 675 : 55 L.J. p.628]; Ex
parte Deeming [1892 AC 422]. The Board
cannot give leave to appeal where the
grounds suggested could not sustain the
appeal itself; and conversely, it cannot
allow an appeal on grounds that would not
have sufficed for the grant of permission
to bring it."
This Court observed that the rule laid down by
the Privy Council is based on sound principle and
only those points could be urged at the final
hearing of the appeal which were fit to be urged at
the preliminary stage when leave to appeal was
asked for and it would be illogical to adopt
different standards at two different stages of the
same case. This Court observed (para 8) that, so
far as Article 136 was concerned, it was to be
noted firstly that it was very general and was not
confined merely to criminal cases, and that (see
para 9), the wide discretionary power with which
the Court was concerned/was applicable to all types
of cases. The power under Article 136 according to
this Court,
"is to be exercised sparingly and in
exceptional cases only, and as far as
possible, a more or less uniform standard
should be adopted in granting special
leave in the wide range of matters which
can come up before it under this Article.
By virtue of this Article, we can grant
special leave in civil cases, in
criminal cases, in income tax cases, in
cases which come up before different
kinds of tribunals and in a variety of
other cases."
This Court emphasised:
"The only uniform standard which in our
opinion can be laid down in the
circumstances is that Court should grant
special leave to appeal in those cases
where special circumstances are shown to
exist."
This Court then concluded:
"Generally speaking, this Court will not
grant special leave, unless it is shown
that exceptional and special
circumstances exist, that substantial and
grave injustice has been done and that
the case in question present features of
sufficient gravity to warrant a review of
the decision appealed against."
The above principles were followed and
reiterated by a three Judge Bench in Hem Raj vs.
State of Ajmer [1954 SCR 1133], holding that that
even after the appeal is admitted and special leave
is granted, the appellant must show that
exceptional and special circumstances exist, and
that, if there is no interference, substantial and
grave injustice will result and that the case has
features of sufficient gravity to warrant a review
of the decision appealed against, on merits. Only
then would this Court exercise its overriding
powers under Article 136.
M/s Bengal Chemical & Pharmaceutical Works
Ltd. vs. Their Workmen [1959 Suppl. (2) SCR 136]
was an appeal by special leave against the Judgment
of the Industrial Tribunal. It was held that the
power under Article 136 was discretionary and
though the said Article 136 was couched in widest
terms, it was necessary for this Court to exercise
the discretionary jurisdiction only in cases where
awards were passed in violation of principles of
natural justice, and substantial and grave
injustice was caused to parties or the case raised
an important principle of industrial law requiring
elucidation and final decision by this Court or
disclosed such other exceptional or special
circumstances. Subba Rao,J. (as he then was) gave
two important reasons for the said principle and
they are set out in the following passage:
"The limits to the exercise of the
power under Article 136 cannot be made to
depend upon the appellant obtaining
special leave of this Court, for two
reasons, viz., (i) at that stage the
Court may not be in full possession of
all material circumstances to make up its
mind and (ii) the order is only an ex
parte one made in the absence of the
respondent. .... It would be illogical to
apply two different standards at two
different stages of the same case."
We may in this connection also refer to
Municipal Board, Pratapgarh & Another vs. Mahendra
Singh Chawla & Others [1982 (3) SCC 331], wherein
it was observed that in such cases, after declaring
the correct legal position, this Court might still
say that it would not exercise discretion to decide
the case on merits and that it would decide on the
basis of equitable considerations in the fact
situation of the case and "mould the final order"
In view of the above decisions, even though we
are now dealing with the appeal after grant of
special leave, we are not bound to go into merits
and even if we do so and declare the law or point
out the error - still we may not interfere if the
justice of the case on facts does not require
interference or if we feel that the relief could be
moulded in a different fashion. We have already,
referred to the various circumstances of the case
which show that the plaintiff, on her own
admission, had knowledge of the trespass in
December 1967 and did not raise any objection to
the construction of the two rooms though she was
the adjacent neighbour. She gave notice only after
7 years in 1974 and she filed suit in 1975. These
two rooms have been there for the last 30 years.
In those circumstances, we declare the law by
holding that the High Court while dealing with a
Second Appeal under Section 100 CPC erred in not
framing a substantial question of law and that it
also erred in interfering with a pure question of
fact relating to the genuineness of the agreement.
We declare that this was not permissible in law.
Even while so declaring, we hold that in the
peculiar circumstances referred to above, this is
not a fit case for interference and that in
exercise of our discretion under Article 136, -a
discretion which continues with us even after the
grant of special leave, - the decree passed by the
High Court dismissing the suit for possession need
not be interfered with and the two rooms need not
be demolished. The plaintiff could be adequately
compensated by way of damages. Point 2 is decided
accordingly. Point 3 regarding Article 142 need
not therefore be decided.
Point 4:
We had adjourned the case to find out if the
parties could agree in regard to the value of the
land so that some equitable order could be passed
directing the respondent to pay for the land of the
appellant under his occupation. But, in view of
the affidavit of the respondent dated 20.2.1999
circulated through the Court on 22.2.1999, it is
clear that there is no agreement in this behalf.
According to the respondent, the present value of
the land is Rs.275/- per sq.ft. Respondent says
that he is still carrying on as a rickshaw puller.
In the circumstances, we are of the view that
the judgment of the High Court setting aside the
judgment of the lower appellate Court and restoring
the judgment of the trial court should be confirmed
with a modification. We modify the decree of the
High Court by directing that the respondent-
defendant pay for the value of the suit extent of
land in his possession and that the value should be
as on 19.1.1987, the date on which the impugned
judgment in Second Appeal was granted in favour of
the respondent-defendant. The said value has to be
worked out by taking evidence. For this limited
purpose we remit the matter to the trial Court, the
Court of the 3rd Joint Judge, Junior Division,
Aurangabad, State of Maharashtra for deciding the
value of the suit land as on 19.1.1987. Parties
are at liberty to adduce evidence in the trial
Court in this behalf. The value as may be fixed by
the trial Court shall be paid by the respondent to
the appellant within such time as may be fixed by
the trial Court. If such amount is not paid by the
respondent-defendant, the plaintiff shall be
entitled to recover the said amount as if it is a
money decree for the said amount. The appeal is
dismissed subject to the above modification. There
will be no order as to costs.