Important Points
1. In second appeal u/s 100 CPC the High Court cannot decide a case without framing substantial question of law and the High Court cannot interfere with pure finding of fact.
2. Though Special leave is granted, the discretionary power which vested in the Supreme Court at the stage of the SLP continues to remain with the Court even at the stage when the appeal comes up for hearing and when both sides are heared on merits; court is not bound to go into the merits and the Court can declare law or point out error and still may not interfere if justice of the case on facts does not require interference or relief could be moulded in a different fashion.

Headnote:(i) Code of Civil Procedure, 1908-Section 100-Second appeal-Disposal of second appeal without framing substantial question of law-Not permissible-Pure findings of fact of lower Court cannot be interfered with. (Paras 10 & 19)
       (ii) Constitution of India-Art. 136-Special leave to appeal-Discretionary power available to Court at the time of grant of SLP continues with the Court even at the stage when appeal comes up for hearing-Court not bound to go into merits-Court can declare law or point out error and still may not interfere if justice of the case on facts does not require interference or relief could be moulded in a different fashion.
       Held : 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. 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. (Paras 15 & 16)
       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. (Para 19)
       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. (Para 19)
       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 allowed 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. (Para 21)

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.

2. 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.

3. 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.

4. 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 D.W. 2, the attestor of the agreement of purchase dated 10.2.1962 who was also the mason who was engaged for construction of the rooms. D.W. 3 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.

5. 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 defe

Click Here to Read the rest of this document

1999 Supreme(SC) 259

Cases Referred (6)