TMI Blog1999 (2) TMI 679X X X X Extracts X X X X X X X X Extracts X X X X ..... 5' 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 ₹ 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, therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proved that the agreement of sale could not be true, namely that while the consideration for the agreement was ₹ 300, only ₹ 50/- was paid in 1962 and the balance of ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 74. 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 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rant 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: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
