SHRIDEVI AND ANR. v. MURALIDHAR AND ANR

Citation: [2007] 11 S.C.R. 375

Court: Supreme Court of India

Bench: S.B. SINHA, H.S. BEDI

Case summary

SHRIDEVI AND ANR. v. MURALIDHAR AND ANR.pdf

Judgment text

\ _,. SHRIDEVI AND ANR. v. MURALIDHAR AND ANR. OCTOBER 12, 2007 [S. B. SINHA AND HARJIT SINGH BEDI, JJ. ] LandAcquisition: Acquisition ofportion ofland in Survey No. I51I by Government- Filing ofsuit by owner ofSite No. 434 & 435 in the Survey against appellant No. I and others, owners ofSite Nos. 432 and 433 alleging· that lands in question not acquired by Government-Filing of application for injunction in the Suitfor not allowing appellant No.

I to raise construction and not to use bore well in the site for any purpose-Rejected by trial Court-Appeal allowed by High Court holding that a triable case has been made out-On appeal, Held: Prima fade, it appears that the land in question not acquired by the Government-While considering an application for injunction, requirement ofexistence ofprima facie case, balance ofconvenience ofparties, irreparable injuries to otherparty have to be considered by the Court-However, grant ofreliefandextent thereofwill depend upon facts and circumstances of each case-On facts and in the _,_ circumstances ofthe case, High Court rightly held that arguable case has been made out-Trial Courtfailed to consider the relevant question as to whether the authority had acquired the site in question or not- Thereby, it misdirected itself-Omission on the part oftrial Court to consider respective cases ofparties, therefore, deserve inte1ference by the appellate Court-Conduct ofappellant No.

I to complete the construction to make situation irretrievable must be deprecated-Jn such circumstances, in(erest ofjustice would be subservedifthe order dated 21. 6. 2007 ofDivision Bench ofthis Court, recalling the interim I '~. 1-- . order permitting construction ofthe site, is made absolute-Directed accordingly. Engaging common advocates by the Appellant and Respondent- Implication of-Discussed-Practice andProcedure. Respondent No. 1is said to be in possession ofsite Nos. 434 and 435 appurtenantto Survey No. 15/1 situate in a Village in the Bangalore ~ district. Appellant No. 1 purchased Site Nos.. 433 and 432 in the same Survey by registered sale deeds. Allegedly, her namewas also mutated "f in the record ofrights. A building plan was submitted by her, which was sanctioned by the authority concerned for construction ofa residential house on the said plots. Respondent No. 1 having apprehended that Appellant No. 1 would raise constructions on Site No.

433, he filed a suitagainstAppellantNos. 1 and 2, RespondentNo. 2and theAuthority in the Civil Court inter alia praying for directions to the respondents not to use the Borewell put up in site No. 433 for any purpose for all timeto come; and also not to put up any compound wall construction in >-. site No. 433 and also not to change the nature ofsite in any manner. The Authority sought to acquire 2 Acres 20 Gunthas ofland ofSurvey No. 15/lby a notificationdated 28. 10. 1971. The land in questionwas said to be belonging to two persons, namely, V' and 'B', and accordingly an award was made in their favour. In the said award again, the northern boundarywas shown as part ofSurvey No. 15/1. Later, respondentNo. 1 filed an application for grant oftemporary injunction in the said suit TheTrial Courtrejected theapplication forgrantoftemporary injunction in the said suit. Aggrieved, Respondent No. 1 ftled an appeal before the High Court.

The High Court, however, opining that a triable case ihas been made out by respondent No. 1, directed maintenance ofstatus quo. Hence theSpecial Leave Petition. While admittingSLP, this Court vide its order dated 8. 3. 2007, stayed the impugned order that any construction raised on the site in questionwill besubjectto the result of the appeal and at the risk and cost ofthe petitioners. Later, a Vacation Bench ofthis Court by an orderdated 21. 06. 2007directed maintenance .. l. \ ofstatus quo and the orde~dated 8. 03. 2007 permitting construction was recalled. I \ \ f SHRIDEVI v. MURALIDHAR ,. _ Appellants contended that the High Court committed a serious error in reversing a well-considered judgmentofthe Trial Court; th~t the respondents, even as far back in 1992, having not claimed any ownership in respect ofSite No. 433, were not entitled to an order of injunction; that the Trial Court had found as offact that the plaintiff. ,.

respondent had failed to show his right, title and interest in respect of SiteNo. 433; and that as about 80% ofthe construction is already over; ~ this Court should allow the appellant to completethe same as otherwise y shewillsuffer irreparable injury. Respondent No. I submitted that it is incorrectto contend that the' entire SmveyNo. 15/1 has been acquired,which would beevidentfrom . the fact that the name of the plaintiff's father was shown as owner of the land appertaining to the said Survey No. 15/1. Dismissing the appeal, the Court HELD: 1. 1. Primafade, itdoes not appear that the plot in question was acquired by the Government Had entire Survey No. 15/1 been the subject matter ofLand Acquisition proceeding, the portion ofthe land belongingto the respondentwould have also been acquired. Their names also would have found place in the notification. Possession would have been taken from them and an award would have been made in their favour.

The very fact that the northern boundary ofthe land sought to be acquired has been shown as Survey No. 15/l,primafacie, itappears that the entire Survey No. 15/1 had not been the subject matter of acquisition. In thatviewofthe mattertheHighCourtwas rightinopining that an arguable case has been made out. While considering an j application for injunction, existence of a primafacie case, balance of convenience of parties, irreparable injury were required to be considered by the Civil Court. Grant ofa reliefin regard to the nature and extent thereofwill depend upon the facts and circumstances ofeach case. [Para 21 and 22] (384-F, G, H; 385-A, BJ } M Gurudas & Ors. v. Rasaranjan & Ors. , (2006) AIR SCW4773, relied on. 1. 2. This Court, however, is not oblivious ofthe fact that ordinarily ~\ - that the entire Survey No. 15/1 had not been the subject matter of acquisition. 22. In that view ofthe matter the High Court was right in opining that an arguable case has been made out.

While considering an application for injunction, existence ofa prima facie case, balance of convenience 1 ofparties, irreparable injury were required to be considered by the Civil Court. Grant of a relief in regard to the nature and extent thereof will depend upon the facts and circumstances ofeach case. [See M Gurudas , & Ors. V. Rasaranjan & Ors. , reported in 2006 AIR sew 4773] 23. This Court, however, is not oblivious ofthe fact that ordinarily · a court of appeal does not interfere with the discretionary jurisdiction exercised by the learned Trial Judge. However, in this case the learned 1 Trial Judge while passing the order dated 16. 08. 2006 failed to consider the relevant question, viz. , as to whether the Authority had acquired Site No. 432 or not. That was the principal question on the basis whereofthe 'D learned Trial Judge ought to have proceeded with the matter. It did not do so; as a result whereof it misdirected itself.

Title claimed by the appellants herein is said to have been derived from the Authority. IfSite No. 433 was not the subject matter of acquisition, the question of execution of any deed of sale in favour ofRespondent No. 2 herein by · the Authority did not or could not arise. Consequently, Respondent No. , 2 could not have transferred her right, title and interest in favour ofthe appellant herein. 24. Omission on the part ofthe learned Tiial Judge to consider the respective cases ofthe parties, in this behalf, in our opinion, deserved , interference by the First Appellate Court. Ifthat be the legal position, whether the plaintiff- Respondent No. 1 herein had prayed for raising any construction on Site No. 433 or not may not strictly arise for ' consideration. 25. We may furthem1ore notice that although in the application for permission to raise construction, such a prayer had not been made, which according to Mr. Adsure, was an inadvertent error. 26.

The fact remains that the ownership of Site No. 433 whether . ~ .. r \ vested in the plaintiff- Respondent No. 1 or Venkata Reddy and B. S. Subba Rao is the core question which would fall for detennination ofthe learned Trial Judge. 27. Ordinarily this Court having regard to the fact that the appellant has raised substantial constructions would have allowed her to complete the same but the fact remains that she did not question the said order before this Court for a long time. The application for grant ofspecial leave I'was barred by limitation. In a situation of this nature, ordinarily, the aggrieved party is expected to approach this Court without any loss of "' time. We have noticed hereinbefore that in the meanwhile the plaintiff- .. ,.. Respondent No. 1had sought for production ofcertain original documents from the Authority which has been allowed. I r 28. The conduct of the appellant must be deprecated.

Upon obtaining an interim order from this court, she with a view to complete the construction so as to make the situation irretrievable, not only did not file processes; even without any rhyme or reason a set of complete ,L paperbooks had not been served on the Advocate for the plaintiff respondent. Although ad interim order passed by this Court had nothing to do with the hearing ofthe suit, which in tenns ofthe direction issued by the High Court deserved expeditious disposal; an application was filed through Respondent No. 2 herein for deferring the hearing ofthe suit on I r the premise that the matter is pending before this Court. Evidently, such j.. an application was filed at the behest ofthe appellant. 29. It is stated at the Bar that Mr. Nandkishore J. , Advocate appeared before this Court on 8. 03. 2007 on behalfofthe appellant but t 'ithe same learned Advocate had appeared for Respondent No. 2 before the court below. f 30.

The very fact that the appellant and the said respondent have a ? common Advocate also goes a long way to show that the said application t:: must have been filed at the instance ofthe appellants themselves paiticularly """I having regard to the fact that Respondent No. 2 had transferred her right ~ I title and interest in favour ofthe appellant herein. 31. Furthermore, no construction could be raised in view ofthe order ofa Division bench ofthis Court dated 21. 06. 2007. In that view ofthe matter, in our opinion, interest ofjustice would be subserved ifthe said order is made absolute. We would, however, direct the plaintiff - Respondent No. 1to furnish security for a sum ofRs.

2,00,000/- (Rupees two lakhs only) within four weeks from date so that in the event, the suit is dismissed and in the proceedings the appellants prove that she has suffered any damages by reason ofnot being able to raise any construction :from the date till disposal ofthe suit, they may be suitably compensated therefor. : 32. The appeal is dismissed subject to the aforementioned directions with costs. Counsel's fee assessed at Rs. 25,0001- (Rupees twenty five only). S. K. S. Appeal dismissed.