SHAIKH ALI HOSSAIN AND ORS. v. SH. SHOWKATALI AND ANR

Citation: [2008] 8 S.C.R. 867

Court: Supreme Court of India

Bench: TARUN CHATTERJEE, R.V. RAVEENDRAN

Case summary

SHAIKH ALI HOSSAIN AND ORS. v. SH. SHOWKATALI AND ANR.pdf

Judgment text

[2008) 8 S. C. R. 867 SHAIKH ALI HOSSAIN AND ORS. v. SH. SHOWKATALI AND ANR. (Civil Appeal No. 3650 Of 2008) MAY 14, 2008 [TARUN CHATTERJEE AND R. V. RAVEENDRAN, JJ. ] Constitution of India, 19. 50 - Article 227- Dispute relating to extent of land possessed by the parties - Suit for declaration by respondent that appellant had no right in suit properties and application for injunction - Trial Court and First Appellate Court on interpretation of an order dated 24. 3. 1995 passed in earlier round of litigations rejected injunction application - Application before High Court under Article . 227 of Constitution - High Court set aside the concurrent orders of . ;. courts below and directed the parties to maintain status quo in respect of the suit properties till the disposal of the suit -:-Challenge against- Held: Per Raveendran, J. ~ Grant or refuse'!

of an injunction is within the judicial discretion of the trial court - High Court in exercise of supervisory jurisdiction under Article 227, was notjustified in interfering with the concurrent finding of courts below - High Court has re-examined the matter as if it was sitting in appeal over the orders of Courts below and reached different conclusion, which is erroneous - Held: + Per Tarun Chatterjee, J - The order ofthis court dated 24. 3. 1995 is capable of being interpreted in various ways and therefore, it must be held that a triable issue had been raised by the respondent for which the only order that could be passed, on the application for injunction, was to directthe parties to maintain status quo as regards the character and nature of the suit properties till the disposal of the suit - Per Court - In view of :ir difference of opinion, the Registry is directed to place this matter before Hon'b/e the Chief Justice of India for appropriate orders. Premises No.

108 measuring 37 decimals belonged to father and uncle of plaintiffs-respondents. They sold 33 decimals out of the said property to their nephew, 'SA' under registered sale deed. On the application of 'SA', the portion (33 decimals) purchased by him was bifurcated s and assigned a separate number identified as premises no. 108A. Both the parties filed suits. By common judgment, :. · suit for injunction by 'SA' was decreed and suit for declarationof-title by adverse possession filed by respondents was dismissed. Trial Court held that 'SA' had proved his possession of 33 decimals in premises no. 108A and respondents failed to prove their possession of premises no. 108A. The judgment of trial Court was upheld by the first appellate 0 Court and High Court. When matter came up before this ~· · Court, respondents admitted that 'SA' hc;d purchased 33 decimals. 'SA' confirmed that respondents were in possession of 6. 5 decimals of land and that they were the owners of the said 6.

5 decimals of land. The respondents admitted that 'SA' was in possession of the remaining land. This Court having recorded the said submissions disposed of the appeals by judgment dated 24. 3. 1995 directing each party to not to disturb the possession of the other. The plaintiffs filed present suit for declaration that appellants had no right, title and interest in the suit properties and an application for injunction restraining appellants from interfering with their possession. The plaintiffsrespondents in the present suit interpreted the decision of this Court dated 24. 3. 1995 as holding that they were entitled to 6. 5 decimals out of 33 decimals sold to 'SA' and -. that 'SA' was therefore entitled to only the remaining 26. 5 "' decimals. Plaintiffs also alleged that defendants 1 to 7 who were the 'SA' had entered into some deal with defendants 8 and 9 in regard to the entire extent of Premises SHOWKAT ALI AND ANR. No. 108A including the 6.

5 decimals owned and possessed by plaintiffs. The Trial Court on interpretation of order dated 24. 3. 1995 rejected injunction application, which was upheld by the First Appellate Court. Plaintiffs filed application before High Court under Article 227 of Constitution. The High Court set aside the concurrent orders of the courts below rejecting the application for injunction and directed the parties to maintain status quo in respect of the suit properties till the disposal of the suit. Hence the present appeal. Differing on the interpretation of theSupreme Court's order dated 24. 3. 1995, HELD: BY THE COURT: In view of difference of opinion, the Registry is directed to place this matter before Hon'ble the Chief Justice of India for appropriate orders. 1- PER RAVEENDRAN, J. - 1. On the factual background and contentions, the order dated 24. 3. 1995 of this Court is capable of being interpreted in different ways. A careful reading of the decision dated 24. 3.

1995 of this Court makes it clear that this Court merely confirmed that the area in the occupation of plaintiffs was 6. 5 decimals and the area in the occupation of 'SA' was 33 decimals. This Court used the words : "It is also not in dispute that the . + appellants are in possession of 6. 5 decimals of land. " It did not say that appellants were in possession of "6. 5 decimals of land in Premises No. 1 OBA" or "6. 5 decimals of land out of 33 decimals of land". The words 'rest of the land' used while referring to the land in possession of 'SA' when read in the context of the entire order and the subject matter of the dispute before this Court, clearly refer ) -discretion of the trial court. In this Court, the trial court had considered the facts in detail and found that the plaintiffs were not in a position to make out a prima facie case and rejected the application. That order was affirmed in appeal.

In the circumstances, the High Court in exercise of supervisory jurisdiction under Article 227, was not justified in interfering with the order. The High Court has re-examined the matter as if it was sitting in j.. ;. appeal over the orders of the trial court and appellate court and > reached a different conclusion, which as noticed earlier is erroneous. On the facts and on proper interpretation of the order of this Court, the view taken by the High Court is not warranted 1 and calls for interference. 13. I would therefore allow this appeal and set aside the order of the High Court, and restore the order of the trial court, as confirmed by appellate court rejecting the application for ternporary injunction. TARUN CHATTERJEE, J. A. By a separate Judgment, my learned brother R. V. Raveendran, J. has allowed the ap- ~ peal, whereas, by this Judgment, I have dismissed the appeal for the reasons set out in the Judgment. 1. Leave granted. · 2.

This appeal is directed against the judgment and order 1 dated 18 h May, 2005 passed by a learned Judge of the High Court at Calcutta in C. O. No. 3868 of 2004. By the impugned order, the learned Judge, in the exercise of his supervisory power under Article 227 of the Constitution, had set aside the concur- ~ rent ordeis of the courts below which had rejected tlle application for injunction filed by the plaintiffs-respondents and directed the parties to maintain status quo with regard to the suit properties which have been fully described in Schedules 'A' and 'B' to the plaint as follows: Schedule A "All that piece and parcel of land measuring 6. 5 decimal 4 together with structures standing thereon in Dag No. 129 ~ F. Khatian No. 943, R. S. Plot No. 233 being the portion of premises No. 10BA, Dr Girindra Sekhar Basu Road, Calcutta-700 039, Police Station Kasba, District South 24- Parganas..... Schedule B ~ All that the premises No. 108, Dr.

Girindra Sekhar Basu A Road, Calcutta-700 039 Police Station Kasba, being land with structure lying and situate at the South Western side under Dag No. 129, Khatian No. 943, Mouza Kasba, District South 24-Parganas..... " . A 3. The respondents as plaintiffs instituted the suit in the + First Court of the Civil Judge, Junior Division, Alipore, South 24 Parganas, West Bengal against the appellants, inter alia, praying for a decree for declaration that the appellants had no right, title and interest in the suit properties and for permanent injunction. In the aforesaid suit, the respondents filed an application for injunction restraining the defendants/appellants from disturbing, alienating, dealing, encroaching and/or interfering with the possession of the respondents in respect of the suit + properties (in short "the application for injunction") in which it was, inter alia, alleged that in view of an earlier order of this Court in SLP [CJ No.

4263-65 of 1992, the respondents were entitled to an order of injunction as prayed for. Both the courts below on the interpretation of the order of this court rejected the application for injunction of the respondents. Feeling aggrieved, the respondents moved an application before the High Court under Article 227 of the Constitution which was allowed by the impugned oraer. By the impugned order, the High Court had t set aside the concurrent orders of the courts below rejecting the application for injunction and directed the parties to maintain status quo in respect of the suit properties till the disposal of the suit. Aggrieved by this order, the instant special leave petition has been filed in respect of which leave has already been granted. 4. Having heard the learned counsel appearing for the . ;. parties and after examining the entire materials on record, in- ~ eluding the order passed by the High Court, the courts below as well as the order passed by this court in SLP [CJ No.

4263-65 of 1992, we find that the High Court as well as the courts below disposed of the application for injunction primarily on the interpretation given to the aforesaid order of this court in SLP [CJ No. 4263-65 of 1992. As the only question involved in this ap- ,... peal is whether the High Court was justified in setting aside the ~ concurrent orders of the courts below rejecting the application for injunction under Article 227 of the Constitution on a different interpretation given to the order of this court in SLP [CJ No. 4263- 65of1992, we propose to narrate the admitted facts in respect of which no dispute has been raised by the learned counsel for the parties and which would be required to decide the abovementioned question posed before us. 5. The predecessor-in-interest of the respondents namely Ujir Ali Mistry and Bahar Ali Mistry were originally the owners of Dag No. 129 under Khatian No. 943 of Mouza Kasba being holding No. 108, Dr.

Girindra Sekhar Basu Road, Calcutta comprising 37 decimals of land. The predecessor-in-interest of the respondents sold 33 decimals of land out of 37 decimals to Late Shaikh Anwar Hossain ("S. A. Hossain" for short), the predecessor-in-interest of the appellants 1 to 7, by a registered deed 1 of sale dated 27 h February, 1948. The 33 decimals. as aforesaid, was identified as holding No. 108A, Dr. Girindra Sekhar Basu Road, Calcutta 700 039. Subsequently, disputes and differences cropped up between the predecessor-in-interest of the parties with respect to the validity of the sale deed and title ~ and possession of the respective parties in connection with the premises No. 108A, Dr. Girindra Sekhar Basu Road, Calcutta. Three suits were filed by the predecessor-in-interest of the parties against each other concerning the aforesaid 33 decimals of land. However, the dispute that had arisen in respect of the aforesaid 33 decimals was resolved by this court by an order passed in SLP [CJ No.

4263-6. 5 of 1992 [Satkari Bibi @ Mata Bibi and Ors. Vs. Sk. Anwar Hossain and Ors. ] in the following manner: -+ • "Substitution allowed. Leave granted. We are happy to note that the parties have adopted a very fair stand in this Court. Admittedly the first respondent had purchased 33 decimals of land from their uncles Ujir .... • Ali Mistri and Bahar Ali Mistri. It is also not in dispute that the appellants are in possession of 6. 5 decimals of land. The respondents have fairly agreed that the appellants will be owners and to remain 'in possession and enjoyment in perpetuity of 6. 5 decimals of land. The respondent shall not interfere with the aforesaid land. Equally the appellant shall not interfere with the possession and enjoyment of rest of the land. This decision is in modification of the decree of the Trial Court in Suit No. 67/71, Title Suit No. 189/ 71and421/71. The decree of the Trial Court is accordingly modified.

' Both the parties are directed not to interfere with the possession and enjoyment of respective lands. The appeals are disposed of accordingly. No costs. " 6. The High Court as well as the courts below considered the aforesaid order of this court and interpreted the same in the manner indicated in their respective orders and the courts below, in so doing, rejected the application for injunction whereas the High Court directed for maintenance of status quo in respect of the suit properties till the disposal of the suit. 7. While rejecting the application for injunction on the interpretation of the order of this Court in SLP [CJ No. 4263-65 of 1992, the trial court recorded the following prima facie findings: "........ The plaintiff's main contention in this suit is that the 6. 5 decimal land remains in both A and B Schedule property as there is no demarcation by mets and bounds. I have gone through the solemn order of the Hon'ble !

Supreme Court, India in SLP 4263-65192 wherefrom I find that the appellants are in possession of 6. 5 decimal land and the respondents are in possession of 33 decimal land. The respondent shall not interfere in the appellants land and the appellants shall not interfere in the respondents land. Therefore, from the aforesaid judgment it is crystal clear that the plaintiffs and the defendants portions have been settled in perpetuity by order of the Hon'ble Court. The possession of the respective parties have been settled by their own· conduct in compromise. Therefore, I think that the plaintiffs cannot say that their land measuring 6. 5 decimal remains in both A and B Schedule land. " 8. It may also be noted that the trial court, while rejecting the application for injunction, also came to a conclusion that the respondents should file a suit for partition as they had made out a case to the effect that they had interest in both the schedule properties. 9.

In appeal, the Appellate Court, while affirming the order of the trial court, made the following findings: "Having considered the submi$sions made by the learned counsel on both sides and also after perusal of the order passed by the learned Trial Judge in this regard, we come to find that admittedly, the plaintiffs are in possession of 6. 5 decimals of land and in view of the ... order of the Hon'ble Supreme Court the parties are a/so injuncted from interfering with each other's possession in their respective lands. Under such circumstances, the balance of convenience and inconveniences does not favour the plaintiffs in any manner whatsoever ' Admittedly, they own 6. 5 decimals of land and there is no material to show that the defendants have threatened ... to invade their right or possession in respect of the said • 6. 5 decimals of land.

There is no prima facie material to support the a/legation of the plaintiffs that they would suffer irreparable loss and injury if no order of injunction was passed. Even if the plaintiffs are assumed to have triable issues to go to trial, then also it is not established from the materials produced that the plaintiffs, were entitled to get an order of injunction as prayed for, and • • therefore, I fail to agree with the submission made by the learned advocate appearing for the plaintiffs/appellants, that there has been an error by the learned trial judge in refusing the prayer for temporary injunction. " 'f 10. As noted hereinabove, by the impugned order, the High Court, by taking into consideration the order of this court passed in SLP [CJ No. 4263-65 of 1992 and thereafter interpreting the said order in the manner it had done, directed the parties to maintain status quo after setting aside the orders of the courts below. 11.

It is true that the High Court, while exercising its super- ... visory power under Article 227 of the Constitution will not interfere or set aside the orders of the courts below on a question of fact or law until and unless it appears to it that such decisions of the courts below were, on the face of it, peNerse and made on erroneous assumptions of law or that they were wrong which was apparent on the face of record. In Mohd. Shafi Vs. Addi. D & Sessions Judge [AIR 1977 SC 836], this court, however, pointed out as to when would the High Court be entitled to inter- . ,. r fere even with the concurrent findings of fact or law.

It was held t that when interpretation of a provision of an act is involved, which is admittedly a question of law, it would be open to the High Court to interpret the said provision of the act and come to a different conclusion than the one arrived at by the courts below, if it finds that the orders of the courts below were apparently " erroneous and de hors the legal position and accordingly, interference with the concurrent orders of the courts below was held to be proper and justified. Therefore, it is equally well settled ;. that the High Court may interfere with the concurrent orders of • the courts below if it finds that in reaching their conclusion, the courts below had proceeded on a wrong interpretation of the provisions of a particular act or statute. In this connection, we may readily rely on the obseNations of this Court in the case of Mohd. Shafi [supra], which are as follows: ) - court more minutely.

From a reading of the same, it appears to P us that the expression "rest of the land" appearing in the order of the Supreme Court must be given a special significance, as has been rightly held by the High Court in the impugned order. Therefore, we are to consider whether, by using the expression "rest of the land", their Lordships meant the balance of 33 decimals of i land after deducting 6. 5 decimals therefrom i. e. 26. 5 decimals of land or whether they meant something else. As noted hereinabove, this 33 decimals of land was purchased by the predecessor-in-interest of the a_ppellants 1 to 7 from the predecessor-ininterest of the respondents. It was this 33 decimals of land which was in dispute and accordingly, the subject matter of the suits filed by the predecessor-in-interest of the parties against each other and which were ultimately resolved by this court by an order passed in SLP [CJ No. 4263-65of1992, in the manner indicated hereinbefore.

For this reason, in our view, the expression "rest of the land" can validly be interpreted to mean the balance of 33 decimals after deducting 6. 5 decimals therefrom "i. e. 26. 5 decimals, because this court, when it passed the order in SLP (C) No. 4263-65 of 1992, it was deciding the dispute regarding 33 decimals of land and not 37 decimals or 39. 5 decimals, wrongly assumed as 37 decimals. This view of ours is strengthened by the fact that the land appertaining to Holding No. 108, Dr. Girindra Sekhar Basu Road, Calcutta-39 was never the subject matter of dispute in either ofthe suits out ofwhich the special leave petitions viz. SLP [CJ No. 4263-65of1992 had arisen in this court. In this context, we are in agreement with the finding of the High Court that the land appertaining to Holding No. 108, Dr. Girindra Sekhar Basu Road, Calcutta-39 was the subject matter of dispute in another suit, being Title Suit No. 3/1965, which also came to an end in this court in SLP Civil No.

7156of1982. Therefore, we are of the view that the findings of the High Court, on the interpretation ofthe order of this court in SLP [CJ No. 4263-65 of 1992, were prima facie not incorrect and in fact, the fi:-idings of the High Court were more plausible than the findings arrived at by the courts-below, as noted hereinbefore. Having said this, we feel it proper to discuss yet another · aspect of this matter. The contentions and the facts disclose that the order of this court in SLP [CJ No. 4263_;65 of 1992 is capable· of being interpreted in three more ways, as detailed below: i. The total extent originally held by Ujir Ali and Bahar. Ali was 39. 5 decimals (wrongly assumed as 37 decimals) and therefore, the respondents are in i' possession of 6. 5 decimals in Holding No. 108 and 6. 5 decimals in Holding No. 108A i. e. in all 13 decimals and the appellants are in possession of 26. 5 decimals in Holding No. 108A. ii.

The total extent was 37 decimals and though 33 decimals was sold and only 4 decimals was retained, the respondents continued in actual possession of 6. 5 decimals instead of 4 decimals after the sale. Consequently, it was held that the respondents are entitled to 6. 5 decimals (4 decimals in 108 and 2. 5 decimals in 1OBA) and the appellants are entitled to the remaining extent of 30. 5 decimals in 108A. iii. The parties had assumed that the total extent was · 37 decimals. As per the sale deed, 33 decimals were sold to S. A. Hossain and 4 decimals were i retained by UjirAli and his brother. But as the actual extent was 39. 5 decimals, the respondents were in possession of 6. 5 decimals in Holding No. 108 and the appellants shall be entitled to 33 decimals in Holding No. 1OBA. 15. From the above, it can be concluded that the order of this court in SLP [CJ No.

4263-65 of 1992 is capable of being interpreted in various ways and therefore, it must be held that a )I triable issue had been raised by the respondent for which the ' only order that could be passed, on the application for injunction, was to direct the parties to maintain status quo as regards the character and nature of the suit properties till the disposal of the suit. Ifthe parties are allowed to change the nature and char- · acter of the suit properties or to transfer the same before the suit is decided on evidence, it would be difficult for the court to )- decide the matter with third party interests having been created II? " in respect of the suit properties. In our view, when the suit is still pending and an application for injunction is filed, it would be appropriate for us to direct the parties to maintain status quo, not only in respect of the transfer of the suit properties but also 't' in respect of the possession thereof till the disposal of the suit.

I From the discussions made hereinabove, there cannot be any room for controversy that the court has to decide a fair and substantial question as to what would be the proper interpretation of the order of this court while deciding the suit on evidence and after holding local inspection in respect of the same. Under these circumstances and at this stage, in our view, the matter for consideration would be as to where does the balance of convenience -+ lie. Is it desirable to maintain status quo or should the appellants be allowed to dispossess or alter the character of the suit properties. It is well settled that the court will not refuse an injunction in case of this nature so as to give the party against whom the injunction is sought an undue advantage over the party seeking the injunction. From the record, it appears that the appellant sought to change the nature and character of the suit properties by making constructions on the land.

Therefore, it is indisputable that if the appellants 1to 7 are allowed to proceed with the construction ;. on the suit land, they will be placed in a far better position and would have an undue advantage over the respondents. In this state of affairs, we are of the view that the parties should be directed to maintain status quo in respect of the suit properties. In Gangubai Bab/ya Chaudhary and others Vs. Sitaram Bhalchandra Sukhtankar and others [AIR 1983 SC 742], this court held that when a dispute arose in respect of the title of the suit land and the parties were found to be in possession of the 'f disputed land, an order of injunction restraining the defendant I. from putting up construction on the suit land would be justified as after construction, the situation might become irreversible by the time the dispute is decided, if an order of injunction is not granted. 16.

In view of the above, we are, therefore, of the view that where different interpretations of the order of this court are available and the interpretation given by the High Court cannot be ~ said to be totally incorrect, in that situation, the parties should ""' be directed to maintain status quo in respect of the suit properties till the suit is decided. Under these circumstances, even if we are of the view that the High Court was wrong in interfering SHOWKAT ALI AND ANR. [TAR. UN CHATTERJEE, J. ] with the concurrent orders of the courts below which had rejected the application for injunction, even then, interference with the order of the High Court may not be necessary as we are of the view that justice of the case on facts does not require interference and in fact, by the impugned order, substantial justice has been done in the facts and circumstances of the case.

In the light of the aforesaid discussion, we are of the view that in ~ the present case, admittedly, the balance of convenience and inconvenience would lie in favour of the plaintiffs/respondents in directing the parties to maintain status quo in respect of the suit properties, in as much as, a triable issue has been found by the High Court to go for trial and in the event, injunction or status quo is not granted during the pendency of the suit, the nature and character of the suit properties can be changed at the instance of the appellants or even third party interests can also be created. Accordingly, we are of the view that it would not be just and proper to interfere with the impugned order of the High Court in the exercise of our discretionary power under Article 136 of the Constitution. 17. For the reasons aforesaid, we are not inclined to interfere with the impugned order of the High Court directing maintenance of status quo in respect of the suit properties.

However, we make it clear that the observations that have been made by us or the High Court shall not come in the way of the parties agitating before the trial Court at the time of disposal of the suit after evidence from both the sides is adduced. In the event the written statement in the suit has not yet been filed by the Appellants, the same shall be filed within 8 weeks from the date of production of a copy of this order in the trial court. The Trial court is directed to dispose of the suit within one year from the date of filing of the written statement positively without granting any unnecessary adjournment to either of the parties. - 18. The appeal thus fails and is hereby dismissed without any order as to costs. D. G. Appeal Dismissed.