# 8 S.C.R. 867 SHAIKH ALI HOSSAIN AND ORS v. SH. SHOWKATALI AND ANR

- **Citation:** [2008] 8 S.C.R. 867
- **Court:** Supreme Court of India
- **Decided:** 2008-05-14
- **Case number:** Civil Appeal No. 3650 Of 2008
- **Bench:** Tarun Chatterjee, R.V. Raveendran
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/8-s-c-r-867-shaikh-ali-hossain-and-ors-v-sh-showkatali-and-anr-24780
- **Pages:** 31

## Headnote

Constitution of India, 19.50 - Article 227- Dispute relatA
B
ing to extent of land possessed by the parties - Suit for declaration by respondent that appellant had no right in suit prop- c
erties 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 D
.;.
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 not justified in interfering with the concurrent findE
ing 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 of this court dated 24. 3. 1995
is capable of being interpreted in various ways and therefore,
F
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 G
:ir difference of opinion, the Registry is directed to place this
matter before Hon'b/e the Chief Justice of India for appropriate orders.
867
H
868
SUPREME COURT REPORTS
[2008] 8 S.C.R.
A
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
C 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
:.·
0 judgment of trial Court was upheld by the first appellate
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
E 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.
F
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
G 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 defenH dants 8 and 9 in regard to the entire extent of Premises
SHAIKH ALI HOSSAIN AND ORS. v.SH.
869
SHOWKAT ALI AND ANR.
No.108A including the 6.5 decimals owned and posA
sessed 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

## Text

_Characters 0–39,740 of 66,649. This is a partial read: ask again with offset=39740 for what follows._

[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 relatA
B
ing to extent of land possessed by the parties - Suit for declaration by respondent that appellant had no right in suit prop- c
erties 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 D
.;.
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 not justified in interfering with the concurrent findE
ing 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 of this court dated 24. 3. 1995
is capable of being interpreted in various ways and therefore,
F
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 G
:ir difference of opinion, the Registry is directed to place this
matter before Hon'b/e the Chief Justice of India for appropriate orders.
867
H
868
SUPREME COURT REPORTS
[2008] 8 S.C.R.
A
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
C 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
:.·
0 judgment of trial Court was upheld by the first appellate
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
E 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.
F
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
G 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 defenH dants 8 and 9 in regard to the entire extent of Premises
SHAIKH ALI HOSSAIN AND ORS. v.SH.
869
SHOWKAT ALI AND ANR.
No.108A including the 6.5 decimals owned and posA
sessed 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 B
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 c
order dated 24.3.1995,
HELD: BY THE COURT: In view of difference of opinion, the Registry is directed to place this matter before
1Hon'ble the Chief Justice of India for appropriate orders. D
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 E
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 F
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 sub-
)<
ject matter of the dispute before this Court, clearly refer G
to the rest of the land after excluding 6.5 decimals out of
the total original extent (which was assumed to be 37 decimals but actually 39.5 decimals), and not rest of land after
deducting 6.5 decimals from 33 decimals. The decision
of this Court merely reiterated what was agreed, that is H
870
SUPREME COURT REPORTS
[2008] 8 S.C.R.
A the plaintiffs were entitled to 6.5 decimals. The interpretation put forth by plaintiffs tha.t the decision of this Court
had recorded that plaintiffs were holding 6.5 decimals in
Premises No.108A in addition to 6.5 decimals in No.108,
is without basis. Neither the wording of the decision nor
B the background in which the decision was rendered ~up
port plaintiffs' interpretation. (Para 6] (879-D-H; 880-A]
2. 33 decimals out of 37 decimals having been sold by
father and uncle of plaintiff to 'SA', it is .uminderstandable
as to how the plaintiffs, could claim to be in possession
C · of 6.5 decimals as remaining land and also claim 6.5 .decimals out of the land sold, in all 13 decimals. The claim is
apparently unjust. Plaintiffs are making a belated attempt
to misinterpret the order of this Court dated 24.3.1995 taking advantage of the fact that it was not a detailed order.
D The interpretation sought to be placed by plaintiffs would
virtl!ally arpount to rewriting the. order of tlie court with a
different content. [Para 8] [881-B-C]
3. The suit is still pending and the matter has travE elled to this Court ii;i co.nnection with an interim order. The
appropriate course in the normal circumstances would
have beento set aside the judgment of the High Court as
unwarranted, without expressing any opinion on merits.
The entire. matter depends upon the interpretation of the
order of this Court in the earlier round of litigation. ConF sequently, the only question that would really fall for decision by the trial court is whether plaintiffs are in possession of an area of 6.5 decimals or an area which is
less than 6.5 decimals. If the total area of 108 and 1 OBA is
37 decimals and if plaintiffs are in possession of an area
G which is less than 6.5 decimals, then plaintiffs will be entitled to 6.5 decimals and the defendants will be entitled
to the remainder. That is, if the total area is 37 decimals
and if the plaintiffs are in possession of only 4 decimals
and if the LRs. of 'SA' are in possession of 33 decimals,
H
+
SHAIKH ALI HOSSAIN AND ORS. v.SH.
871
SHOWKAT ALI AND ANR.
.,.
having regard to the decision of this Court, the plaintiffs A
will be entitled to 6.5 decimals and the LRs. of 'SA' will be
entitled to 30.5 decimals. On the other hand, if the extent
already in the possession of plaintiffs is 6.5 decimals, then
the LRs. of 'SA' will be entitled to the entire remainder
(which will be 30.5 decimals if the total extent is 37 deciB
mals, or 33 decimals if the total extent is 39.5 decimals).
[Paras 9, 1 OJ [881-D-H; 882-A-B]
4. When the injunction application was argued before the trial court, the plaintiffs clearly admitted that the
extent of Premises No.108 was 6.5 decimals and not 4 c
decimals. Trial court found that as .the plaintiffs were in
possession of 6.5 decimals and defendants were in possession of 33 decimals. and there was no threat to the
plaintiffs' possession of 6.5 decimals, plaintiffs were not
entitled to the injunction sought for. In fact, the trial court D
~
examined the matter in detail, and did not find any triable
issue at all. The appellate court concurred with the findings of the trial court and dismissed the appeal. The High
Court while exercising the power under Article 227 of the
Constitution of India interfered with the said concurrent E
findings and held that there was a triable issue in the suit.
The High Court also interpreted the order of this Court as
holding that plaintiffs were entitled to 6.5 decimals out of
33 decimals in Premises No.1 OBA and that defendants
-+
were entitled only to the remaining 26.5 decimals. Such a F
•
finding was wholly unwarranted. [Para 11] [882-8-E]
5. Grant or refusal of an injunction is within the judicial discretion of the trial 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 G
~
rejected the application. That order was affirmed in ap-
•
peal. 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 reexamined the matter as if it was sitting in appeal over the H
872
SUPREME COURT REPORTS
[2008] 8 S.C.R.
A orders ofthe trial court and appellate court and reached
a different conclusion, which 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 and
B
calls for interference. [Para 12] [882-F-H; 883-A]
PER TARUN CHATTERJEE, J: 1. This court would
not interfere with the order of the High Court under Article 136 of the Constitution if the following conditions
exist: - a. Where two views are possible and the view taken
by the High Court is a plausible one; b. Where the order
C of the High Court rendered substantial justice to the parties or did· not prejudice either of the parties; c. W.here
there is nothing illegal in the reasoning of the order of the
High Court andthe conclusion~ arrived at by it appear to
be well merited and quite in accordance with the rule of
D interpretation; d. Where the order of the High Court is
based on the ground that the concurrent orders of the
courts below were wrong or incorrect on the face of
record; e; Where no special circumstance. is shown to
exist and the justice of the: case on facts does not require
E interference. [Para 13] [89:1-H; 892-A·D]
Mohd. Shafi v. Addi. D & Sessions Judge AIR 1977 SC
836; Savita Chemicals (P) Ltd. v. Dyes & Chemical Worker's
Union and Anr. (1999) 2 sec 143; Union of India & ors. v.
Gangadhar Narsingdas Aggarwal and Anr. ( 1997) 10 SCC 305;
F Yal/awwa v. Shantavva (1997) 11 SCC 159; Jai Mangat Oraon
v. Mira Nayak (Smt) and Ors. (2000) 5 SCC 141; Taherakhatoon
(D) By Lrs. v. Salambin Mohammad (1992) 2 SCC 635;
Gangubai Bab/ya Chaudhary and Ors. v. Sitaram Bhalchandra
SukhtaRkar AIR (1983) SC7 42 - relied on.
G
2. The order of this 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 foT which the only order that could be passed, on
H the .application for injunction, was to direct the parties to
+
SHAIKH ALI HOSSAIN AND ORS. v.SH.
873
SHOWKAT ALI AND ANR.
"'
maintain status quo as regards the character and nature A
of the suit properties till the disposal of the suit. If the parties
are allowed to change the nature and character 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 in reB
spect of the suit properties. When the suit is still pending
.....
and an application for injunction is filed, it would be appropriate to direct the parties to maintain status quo, not only in
respect of the transfer of the suit properties but also in respect of the possession thereof till the disposal of the suit. c
Under these circumstances and at this stage, 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. The appellant sought to D
1
change the nature and character of the suit properties by
making constructions on the land. Therefore, it is indisputable that if the appellants 1 to 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
E
,
the respondents. In this state of affairs, the parties should
...
be directed to maintain status quo in respect of the suit properties. [Para 15] [895-E-H; 896-A-E]
~
3. Where different interpretations of the order of this
•
court are available and the interpretation given by the High
F
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 the High Court was
wrong in interfering with the concurrent orders of the G
,lo
courts below which had rejected the application for in-
•
junction, even then, interference with the order of the High
Court may not be necessary as justice of the case on
facts does not require interference and in fact, by the impugned order, substantial justice has been done in the
H
874
SUPREME COURT REPORTS
[2008] 8 S.C.R.
A facts and circumstances of the case. Admittedly, the bal1'
ance 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
B 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, it would not be just
c and proper to interfere with the impugned order of the High
Court in the exercise of discretionary power under Article
136 of the Constitution. [Para 16] [896-G-H; 897-A-D]
D
E
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 3650
of 2008
From the Judgment and Order dated 18/5/2005 of the High
Court of Calcutta in C.O. No. 3868/2004
Sanjay Sen. Pabitra Kr. Biswal, C.B. Gururaja and Dipak
Kumar Jena for the Appellants.
Raj Kumar Gupta and A.N. Bardiyar for the Respondents.
R. V. RAVEENDRAN J., I have carefully gone through the
draft of the Judgment prepared by my noble brother Tarun
Chatterjee J. Having giving my anxious consideration to it, I have
F to respectfully disagree.
2. The facts are given in detail in the Judgment of Brother
Chatterjee J. Let me consider the undisputed facts. Premises
No. 108 measuring 37 decimals, belonged to Ujir Ali Mistri (father of plaintiffs) and his brother Bahar Ali Mistri. They sold 33
G decimals out of the said property to their nephew S. A. Hossain
(of whom defendants 1to7 are the LRs.) under registered saledeed dated 27 .2.1948. On the application of S. A. Hossain, the
portion (33 decimals) purchased by him was bifurcated and
assigned a separate number identified as Premises No. 1 OBA.
H
.; .
J
•
SHAIKH ALI HOSSAIN AND ORS. v.SH.
875
SHOWKAT ALI AND ANR. [R. V. RAVEENDRAN J.]
More th~n a decade later, Title Suit No. 143/1961 was filed by
A
Ujir Ali and LRs. of Bahar Ali for a declaration that the saledeed dated 27.2.1948 in favour of S.A.Hossain was obtained
i
by fraud and misrepresentation and therefore invalid. The said
suit was dismissed and title of S.A.Hossain was upheld. That
decision attained finality in view of dismissal of the appeal and
B
second appeal. Thereafter, S. A. Hossain filed Title Suit No.67/
-+-
1971 asserting his title and possession in respect of premises
No.1 OBA measuring 33 decimals and sought permanent injunction to restrain the legal heirs of Ujir Ali and Bahar Ali from interfering with his possession. Counter suits were filed in Suit Nos.
189/1971 (for permanent injunction) and Title Suit No.421 /1979 c
(for declaration of title by adverse possession) by the Legal heirs
of Ujir Ali (widow, son and daughter). In Title Suit No.421/1979,
S. A. Hossain was arrayed as the first defendant and the LRs.
of Bahar Ali as defendants 2 and 3 as by then they supported S.
D
~
A. Hossain. By common judgment dated 26.8.1982
S.A.Hossain's suit for injunction was decreed and the suits filed
by LRs of Ujir Ali were dismissed. The trial court held that
S.A.Hossain had proved his possession of 33 decimals in Premises No.108A and LRs of Ujir Ali had miserably failed to prove
E
that they were in possession of Premises No.108A. The said
judgment was affirmed in appeal by the Addi. District Judge,
Alipur by common judgment dated 18.5.1984. The Second ap-
"""'
peals filed by the LRs namely Ujir Ali we.re dismissed by the
'
High Court by a common judgment dated 14.3.1991. The said
common judgment was challenged by the LRs of Ujir Ali in Civil
F
Appeal No.3983-85/1995 (arising out of SLP (C) No. 4263-65/
1992). This. Court disposed of the said appeals by judgment
dated 24.3.1995, recording the submissions on both sides. LRs
of Ujir Ali (appellants therein) admitted that S.A. Hossain (first
respondent therein) had purchased 33 decimals from Ujir Ali
G
,..
•
and Bahar Ali. S. A. Hossain and other respondents in the said
appeals confirmed that the LRs. of Ujir Ali (the appellants
therein), were in possession of 6.5 decimals of land and that
they were the owners of the said 6.5 decimals of land. The LRs
of Ujir Ali (appellants therein) admitted that S. A. Hossain was H
876
SUPREME COURT REPORTS
[2008] 8 S.C.R.
A in possession of the remaining land. This Court having recorded
the said submissions disposed of the appeals with a direction
that each party shall not disturb the possession of the other.
3. The plaintiffs in the present suit (LRs. of Ujir Ali), interB
pret the decision of this Court as holding that they (LRs of Ujir
Ali) are entitled to 6.5 decimals out of 33 decimals sold to S. A.
Hossain and that S.A.Hossain is therefore entitled to only the
+
remaining 26.5 decimals. They therefore contend that in addition to the land retained by them (after sale of 33 decimals)
which continues to bear Premises No.108, they are also enc titled to 6.5 decimals out of Premises No.108A measuring 33
decimals. Plaintiffs also alleged that defendants 1 to 7 who were
the LRs. of S. A. Hossain had entered into some deal with defendants 8 and 9 in· regard to the entire extent of Premises
No.108A including the 6.5 decimals owned and possessed by
D plaintiffs. On the said averments, the plaintiffs have sought a
;
declaration that defendants did not have any right, title or inter~
~-
est in respect of the two suit properties, that is, part of Premises No.108A being 6.5 decimals out of 33 decimals (Schedule 'A' property) and Premises No.108 (Schedule 'B' property)
E and a permanent injunction restraining defendants from interfering with their possession.
4. On the other hand, the case of the defendants 1 to 7
(LRs. of S.A. Hossain) is that out of the total extent of 37 deci-
,..
mals in property No.108, Ujir Ali and his brother sold 33 deciF mals to S.A.Hossain in the year 1948; that it was subsequently
1 found that the actual extent of No.108 was 39.5 decimals; and
that LRs of Ujir Ali and Bahar Ali were therefore in actual possession of 6.5 decimals (instead of 4 decimals) in Premises
No.108 and S.A. Hossain was in possession of 33 decimals
G bearing No.108A. There were two rounds of litigation in regard
..,.._
to the 33 decimals sold to S. A.Hossain. The first round was by
•
alleging that sale deed in favour of S.A.Hossain was void and
the second round was on the basis of adverse possession of
entire land sold to S.A. Hossain. S. A. Hossain succeeded in
.H
both rounds in all three courts. On both occasions, the title and
SHAIKH ALI HOSSAIN AND ORS. v.SH.
B77
'¥-
SHOWKAT ALI AND ANR. [R. V. RAVEENDRAN J.]
possession of S.A.Hossain was upheld. In the second round A
the LRs. of Ujir Ali brought the matter to this Court. When the
appeals were finally heard by this Court, S. A. Hossain fairly
confirmed before this Court that the extent of land in the possession of LRs. of Ujir Ali was 6.5 decimals (and not 4 decimals, referring to Premises No.1 OB) and that the extent of propB
erty in his possession was 33 decimals (Premises No.1 OBA);
~
that position was also confirmed by LRs of Ujir Ali; and that this
Court recorded the said submissions and disposed of the appeals filed by the LRs. of Ujir Ali, without examining the merits,
as it found no reason to interfere with the decision of High Court, c
except to clarify that the extent held by LRs of Ujir Ali was 6.5
decimals. The effect of the decision of this Court dated
24.3.1995 was only to clarify that LRs of Ujir Ali were in possession of 6.5 decimals and not 4 decimals, and that the LRs of
"'
Ujir Ali were entitled to continue in possession of the said 6.5 D
~
decim~ls (in Premises No.1 OB) as owners, and S. A. Hossain
was entitled to continue in possession of 33 decimals (Premises
No.1 OBA) as owner. It was also contended that the 33 decimals
owned and possessed by them (LRs. of S. A. Hossain) and the
6.5 decimals owned and possessed by LRs of Ujir Ali were
E
clearly demarcated and separated by compound walls and
therefore, the question of LRs of Ujir Ali being in possession of
any land in addition to 6.5 decimals in Premises No.108 did
~
not arise. They submitted that the LRs. of Ujir Ali were attempt-
•
ing to misread and misrepresent the judgment of this Court in
Civil Appeal No.3983-85/1995 to grab an area of 6.5 decimals F
out of their 33 decimals in No.108A.
5. The order dated 24.3.2005 of this Court reads thus :
"We are happy to note that the parties have adopted a
~
very fair stand in this Court. Admittedly the first respondent G
•
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 H
B7B
SUPREME COURT REPORTS
· [200B] B S.C.R.
-'(
A
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.67171, Title Suit No.1B9/
B
71 and 421/71. 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.· On
the factual ·background and contentions, the order dated .
c
24.3.1995 of this Court in Civil Appeal No.39B3-B5/1995
is capable of being interpreted in the following four different
ways:
(a)
The total extent originally held by Ujir Ali and Bahar
. Ali was 39.5 decimals (wrongly assumed as 37
D
decimals) and plaintiffs are in possession of 6.5
decimals (No.108) and 6.5 decimals (out of Premies
No.1 OBA) in all 13 decimals and defendants {LRs of
S. A. Hossain) are in possession of 26.5 decimals
in Premises No.1 OBA.
E
(b)
The parties had assumed that the total extent was
37 decimals. As per sale deed, 33 decimals were
sold to S.A. Hossain and 4 decimals were'rntained
by Ujir· Ali and hii'brother. But as the actual total
textent was 39.5 decimals, the plaintiffs were in
•
F
possession of 6.5 decimals (Premises No.1 OB) and
S.A.Hossain was holding 33 decimals (Premises
No.1 OBA) (instead of plaintiffs holding 4 decimals
and S.A. Hossain holding the remaining extent of
35.5 decimals).
G
(c)
The total extent held by Ujir Ali and Bahar Ali was
;. .
37decimals and plaintiffs are in possession of 4
decimals in Premises No.1 OB and 6.5 ·decimals in
Premises No.10BA, in all 10.5 decimals·and
H
defendants are in posse.ssion of 26 .. _? decimals in
,
SHAIKH ALI HOSSAIN AND' ORS. v.SH,
B79
SHOWKAT ALI AND ANR. [R. V. RAVEENDRAN J.]
Premises No.1 OBA. ·
A
(d)
The total extent was 37 decimals and though 33
decimals was sold and only 4 decimals was retained,
the plaintiffs continued in actual possession of 6.5
decimals instead of 4 decimals after the sale.
Consequently, plaintiffs are entitled to 6.5 decimals B
(in No.1 OB) and the defendants are entitled to the .
·.
remaining extent of 30.5 decimals (No.1 OBA) .
....
The plaintiffs (respondents herein) have put forth interpretation (a). The defendants (appellants herein) have put forth c
interpretation (b). Interpretations (c) and (d) arise as corollaries to interpretations (a) and (b) respectively, if the total extent
is only 37 decimals and not 39.5 decimals. The question is which
interpretation is correct.
6. A careful reading of the decision dated 24.3.1995 of D
...
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 S.A.Hossain 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 'E
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 S. A. Hossain, when read in the con-
-li
text of the entire order and the subject matter of the dispute F
•
before this Court, clearly refer to the rest of the land after exeluding 6.5 decimals out of the total original extent (which was
assumed to be 37 decimals but actually 39.5 decimals), and
not rest of land after deducting 6.5 decimals from 33 decimals.
The decision of this Court merely reiterated what was agreed,
G
that is the LRs of Ujir Ali were entitled to 6.5 decimals. The in-
~·
terpretation put forth by plaintiffs that the decision of this Court
•
had recorded that plaintiffs were holding 6.5 decimals in Premises No.1 OBA in addition to 6.5 decimals in No.1 OB, is without basis. Neither the wording of the decision nor the background
H
880
SUPREME COURT REPORTS
[2008] 8 S.C.R.
A in which the decision was rendered support plaintiffs' interpre- "
tation.
7. I may also refer to the following circumstances which
favour the interpretation put forth by the appellants -defendants:
~.
(i) If the ti.tie and possession in regard to 6.5 decimals in
i\"
B
1:
Premises No.108A was already decided in favour of
plaintiffs by this Court by order dated 24.3.1995, and if
plaintiffs were already in possession of 6.5 decimals in
-tNo.108A, in addition to the extent held in No.108 (as
c
contended by plaintiffs), there was no need for plaintiffs to
file a fresh suit (present suit) seeking declaration that
defendants were not having any right, title or interest in 6.5
decimals in No.108A. All that they had to do was to seek
the relief of injunction on the basis of the earlier decision.
D
(ii) While plaintiffs specified the extent of Schedule 'P\
property as 6.5 decimals forming part of Premises
..
No.108A, significantly, they have not given the
~
measurement or extent of Schedule 'B' property that is
Premises No.108, which according to them, was the
E
remainder of land after sale under deed dated 27 .2.1948.
They did not disclose whether the extent of Premises
No.108 is 4 decimals, or 6.5 decimals, or more, or less.
Only when defendants pointed out that the extent of
Premises No.108 was 6.5 decimals, the plaintiffs submitted
F
before the trial court that the extent of Premises No.108
f
was 6.5 decimals. It is too much of a coincidence that
plaintiff retained 6.5 decimals in No.108 and also came
into possession of an exactly similar extent of 6.5 decimals
in No.108A.
G
(iii) The plaintiffs chose to seek a negative declaration
that 'defendants have no right, title or interest in the suit
~
properties' and not a positive declaration that plaintiffs
•
were the owners in possession of the suit properties. The
reason why they chose to seek such a negative prayer is
;
H
obvious. Any positive prayer for declaration of their title
SHAIKH ALI HOSSAIN AND ORS. v.SH.
881
SHOWKAT ALI AND ANR. [R. V. RAVEENDRAN J.]
+
would have been barred by principles of res judicata. The
A
maintainability of a claim for such a negative declaration
is also doubtful.
8. 33 decimals out of 37 decimals having been sold by
Ujir Ali and Bahar Ali to S. A. Hossain, it is ununderstandable as
B
to how the plaintiffs, who are the legal heirs of Ujir Ali, could
claim to be in possession of 6.5 decimals as remaining land
and also claim 6.5 decimals out of the land sold, in all 13 decimals. The claim is apparently unjust. Plaintiffs are making a
belated attempt to misinterpret the order of this Court dated
24.3.1995 taking advantage of the fact that it was not a de- c
tailed order. The interpretation sought to be placed by plaintiffs
would virtually amount to rewriting the order of the court with a
different content.
9. I am conscious of the fact that the suit is still pending
D
and the matter has travelled to this Court in connection with an
...
.,.
interim order. The appropriate course in the normal circumstances would have been to set aside the judgment of the High
Court as unwarranted, without expressing any opinion on merits. But as the Judgment proposed by Chatterjee J., approves
E
the findings recorded by the High Court, it became necessary
to refer to what I consider to be the correct interpretation of this
Court's order, as the entire matter depends upon the interpretation of the order of this Court in the earlier round of litigation.
-.I
10. Consequently, the only question that would really fall
•
F
for decision by the trial court is whether plaintiffs are in possession of an area of 6.5 decimals or an area which is less than 6.5
decimals. If the total area of 108 and 108A is 37 decimals and
if plaintiffs are in possession of an area which is less than 6.5
decimals, then plaintiffs will be entitled to 6.5 decimals and the
G
defendants will be entitled to the remainder. That is, if the total
...
area is decimals and if the plaintiffs are in possession of only 4
•
decimals and if the LRs. of S.A.Hossain are in possession of
33 decimals, having regard to the decision of this Court, the
plaintiffs will be entitled to 6.5 decimals and the LRs. of H
882
SUPREME COURT REPORTS
[2008] 8 S.C.R.
A S.A.Hossain will be entitled to 30.5 decimals. On the other hand,
-f
if the extent already in the possession of plaintiffs is 6.5 decimals, then the LRs. of S.A.Hossain will be entitled to the entire
remainder (which will be 30.5 decimals if the total extent is 37
decimals, or 33 decimals if the total extent is 39.5 decimals).
8
11. When the injunction application was argued before the
trial court, the plaintiffs clearly admitted that the extent of Schedule 'B' property (Premises No.108] was 6.5 decimals and not 4
+
decimals. Trial court found that as the plaintiffs were in possession of 6.5 decimals and defendants were in possession of 33
c decimals and there was no threat to the plaintiffs' possession ·
of 6.5 decimals, plaintiffs were not entitled .to the injunction
sought for. In fact, the trial court examined the matter in detail,
and did not find any triable issue at all. The appellate court concurred with the findings of the trial court and dismissed the ap0 peal. The High Court while exercising the power under Article.
227 of the Constitution of India interfered with the said concur-
...
· rent findings and:·held that there was a triable issue in the suit.
t
The High Court also interpreted the order of this Court as holding that plaintiffs were entitled to 6.5 decimals out of 33 deciE mals in Premises No.108A and that defendants were entitled
only to the remaining 26.5 decimals. I find that on the tenor and
wording of the order of this Court and the factual background,
f
such a finding was wholly unwarranted.
..
12. Grant or refusal of an injunction is within the judicial
>--
F 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
G 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
H this Court, the view taken by the High Court is not warranted
SHAIKH ALI HOSSAIN AND ORS. v.SH.
883
SHOWKAT ALI AND ANR. [TARUN CHATTERJEE, J.]
1
and calls for interference.
A
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.
B
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.
c
· 2. This appeal is directed against the judgment and order
dated 181h 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 D
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
E
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
~
Khatian No.943, R.S. Plot No.233 being the portion of F.
premises No.10BA, Dr Girindra Sekhar Basu Road,
Calcutta-700 039, Police Station Kasba, District South
24- Parganas .....
Schedule B
G
~
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 ..... "
H
884
SUPREME COURT REPORTS
[2008J 8 S.C.R.
.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
B 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
c 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,
D 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 mainE
tain 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
F 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 interG pretation given to the aforesaid order of this court in SLP [CJ
No.4263-65 of 1992. As the only question involved in this appeal 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
H interpretation given to the order of this court in SLP [CJ No.4263-
SHAIKH ALI HOSSAIN AND ORS. v.SH.
885
SHOWKAT ALI AND ANR. [TARUN CHATTERJEE, J.]
65of1992, we propose to narrate the admitted facts in respect A
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
B
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 prede- c
cessor-in-interest of the appellants 1 to 7, by a registered deed
of sale dated 271h 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 D
~
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 E
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:
F
•
"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 G
....
had purchased 33 decimals of land from their uncles Ujir
•
Ali Mistri and Bahar Ali Mistri.