REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3650 OF 2008 [Arising out of Special Leave Petition © No.16346 of 2005]

Shaikh Ali Hossain and Ors.                                  …Appellants

VERSUS

Sh. Showkat Ali and Anr.                                   …Respondents

J U D G M E N T

TARUN CHATTERJEE, J.

A. By  a  separate  Judgment,  my  learned  brother  R.V.

Raveendran, J. has allowed the appeal, 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

dated 18th May, 2005 passed by a learned Judge of the High

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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 concurrent  orders of  the courts below which

had  rejected  the  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  together  with  structures standing thereon in Dag No.129 Khatian No.943, R.S.  Plot  No.233  being  the  portion  of  premises No.108A,  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  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.....”  

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,

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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  [C]

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 order. By the impugned order, the

High Court had 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

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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, including

the order passed by the High Court, the courts below as well

as the order passed by this court in SLP [C] 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 [C] 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  interpretation  given  to  the

order  of  this  court  in  SLP  [C]  No.4263-65  of  1992,  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.  

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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 of sale dated 27th 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 [C] No.4263-65 of

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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.189/71 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.”

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.

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7. While  rejecting  the  application  for  injunction  on  the

interpretation of the order of this Court in SLP [C] 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- 65/92 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.   

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9. In appeal, the Appellate Court, while affirming the order of

the trial court, made the following findings:

“Having considered the submissions 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  also 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 allegation 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.”

10. As noted hereinabove, by the impugned order, the High

Court,  by  taking  into  consideration  the  order  of  this  court

passed  in  SLP  [C]  No.4263-65  of  1992  and  thereafter

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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

supervisory 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, perverse

and made on erroneous assumptions of law or that they were

wrong which was apparent  on the face of  record.  In  Mohd.

Shafi     Vs. Addl. D & Sessions Judge [AIR 1977 SC 836], this

court, however, pointed out as to when would the High Court be

entitled to interfere even with the concurrent findings of fact or

law. It was held 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

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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 observations of this

Court in the case of Mohd. Shafi  [supra], which are as follows:

“The High  Court  seemed to  take  the  view that  the finding of  the  Prescribed Authority  that  Explanation (iv) was applicable in the present case was a finding of fact and since this finding of fact was affirmed by the District Court in appeal, it was not competent to the High Court to interfere with it in the exercise of its extraordinary  jurisdiction  under  Article  226 of  the Constitution and that was presumably the reason why the High Court accepted the hypothesis that the case was covered by Explanation (iv). But this view of the High Court is plainly erroneous because the question whether  Explanation  (iv)  is  attracted  in  the  present case would depend on the applicability to the facts of the  correct  interpretation  of  the  Explanation  and  it would, therefore, clearly be a mixed question of law and fact, and if the High Court found that in reaching its  conclusion  on  this  question  the  District  Court proceeded  on  a  wrong  interpretation  of  the Explanation,  the  High  Court  could  certainly  correct the error and set aside the conclusion reached by the District Court. We must, therefore, first consider what is the proper construction of the language employed in Explanation (iv).”

12. Keeping  the  aforesaid  principles  laid  down  in  the

abovementioned  decision  of  this  court  in  mind,  which  of

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course was based on the interpretation of a provision of an

act, we hold that the High Court would, similarly, be entitled

to interfere with the concurrent orders of the courts below on

the interpretation of a judicial order, either of the High Court

or of this court. It is also, now, an established position in law

that if the High Court finds that the interpretation of an order

of this court given by the courts below was either wrong on

the face of  record or  even when two interpretations  were

possible and the interpretation given by the High Court was

more  plausible  in  nature,  this  court  in  the  exercise  of  its

discretionary  power  under  Article  136  of  the  Constitution

may not be inclined to interfere with the order of the High

Court, even if the High Court, by its order, had set aside the

concurrent orders of the courts below. The learned counsel

appearing on behalf  of  the  appellants  vehemently  argued

before  us  that  even  if  two  possible  interpretations  of  the

order  of  this  court  were  available,  this  court  would  be

entitled to interfere with the order of the High Court on the

footing that the High Court had gone wrong by interfering

with  the  concurrent  orders  of  the  courts  below.  We  are

unable to accept this contention of the learned counsel for

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the appellants. As observed earlier, this court in the case of

Mohd. Shafi [supra], has held that the High Court would be

entitled to interfere with the concurrent orders of the courts

below if it finds that the interpretation given to a provision of

an act  or statute by the courts below was wrong and the

view taken by the High Court was more plausible than the

views  expressed  by  the  courts  below.  This  court,  while

considering the scope of interference under Article 227 of

the Constitution has also held that when the orders of the

courts below are patently erroneous and de hors the factual

and legal  position on record, the High Court  is  entitled to

interfere with such an order in the exercise of its supervisory

power under  Article  227 of  the  Constitution.  (See  Savita

Chemicals (P) Ltd. Vs. Dyes & Chemical Worker’s Union

and another [(1999) 2 SCC 143]. In Union of India & ors.

Vs.  Gangadhar  Narsingdas  Aggarwal  and  another

[(1997) 10 SCC 305], this court has reiterated the principle

that even if two views are possible, the view taken by the

High  Court  being  a  plausible  one,  it  would  not  call  for

intervention  by  this  court  under  Article  136  of  the

Constitution.  Therefore,  it  cannot  be  said  that  the  High

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Court,  under Article 226 or 227 of the Constitution,  would

not at all be entitled to interfere with the concurrent orders of

the courts below, more so when the High Court finds that

the courts below had proceeded on a wrong interpretation or

that  the orders of  the courts  below were incorrect  on the

face of record and accordingly, if the High Court replaces its

own view on the basis of its interpretation of the order of this

court,  this  court  would  not  interfere  with  the  order  of  the

High Court, if the view taken by the High Court is a plausible

one, in the exercise of discretionary power under Article 136

of the Constitution. It is also well settled that if the order of

the High Court rendered substantial justice to the parties or

did not prejudice either of the parties, such order need not

be interfered with under Article 136 of the Constitution. In

Yallawwa  Vs.   Shantavva   [1997 (11) SCC 159],  this court

refused to interfere with the order of the High Court when it

was found that substantial justice was done to the parties by

the  same.  There  is  another  aspect  of  this  matter.  If  this

court,  while  exercising  its  power  under  Article  136 of  the

Constitution,  finds  that  there  is  nothing  illegal  in  the

reasoning of the order of the High Court and the conclusions

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arrived  at  by  it  appear  to  be  well  merited  and  quite  in

accordance with the rule of interpretation, there is no reason

to set aside the said order of the High Court, even though,

by  the  said  order,  the  High  Court  had  set  aside  the

concurrent orders of the courts below in the exercise of its

supervisory power under Article 227 of the Constitution. In

Jai  Mangal  Oraon  Vs.  Mira  Nayak  (Smt)  and  others

[(2000) 5 SCC 141], this court reiterated the same principle,

as noted hereinabove, and laid down that when there was

nothing illegal and wrong in the reasoning and conclusions

arrived at by the High Court and the same appeared to be

well  merited  and  in  accordance  with  the  interpretation  of

statutory provisions, this court would not interfere with the

order of the High Court under Article 136 of the Constitution.

It is equally well settled that if this court is of the view that

the law declared by the High Court was wrong, even then, in

the  exercise  of  its  power  under  Article  136  of  the

Constitution,  this  court,  in  its  discretion,  may refrain  from

interfering  with  the  order  of  the  High  Court  if  special

circumstances are not shown to exist and the justice of the

case  on  facts  does  not  require  interference.  In

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Taherakhatoon  (D)  By  Lrs.  Vs.  Salambin  Mohammad

[(1992)  2  SCC  635],  this  court  at  paragraph  20  has

observed as follows:  

“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......”

13.  From the aforesaid discussion and applying the principles

deduced  from the  decisions  referred  to  hereinabove,  we,

therefore, come to the conclusion that 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  of  the  High  Court  rendered substantial justice to the parties or did not prejudice either of the parties;

c. Where there is nothing illegal in the reasoning of the order of the High Court and the conclusions arrived at  by  it  appear  to  be  well  merited  and  quite  in accordance with the rule of 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 interference.

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14. Keeping  these  conditions  in  mind  and  applying  the

principles laid down by this court  in the decisions referred to

hereinabove, we now propose to take up the question whether

the High Court was justified in interfering with the concurrent

orders  of  the  courts  below in the  exercise of  its  supervisory

power under Article 227 of the Constitution and even if,  it  is

found  that  the  High Court  was not  so  justified,  whether  this

court shall interfere with such an order of the High Court in the

exercise  of  its  discretionary  power  under  Article  136  of  the

Constitution. To answer this question, we have to examine the

order of this court  passed in SLP [C] No.4263-65 of 1992  in

depth.   A bare  look  at  the  above order  of  this  Court  would

clearly show that the predecessor-in-interest of the appellants

had  purchased  33 decimals  of  land from Ujir  Ali  Mistry  and

Bahar Ali Mistry-the predecessor-in-interest of the respondents.

It  is  not  in  dispute  that  the  total  land  in  plot  No.108,  as  it

originally stood, was 37 decimals.  The order of this court would

show  that  the  appellants  in  SLP(C)No.4263-65  of  1992

(respondents in this appeal) were in possession of 6.5 decimals

of land and the predecessor-in-interest of the appellants herein

i.e. S.A. Hossain and others, had admitted that the appellants

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in  SLP(C)No.4263-65  of  1992  (respondents  in  this  appeal)

would  be  the  owners  and  in  possession  and  enjoyment  in

perpetuity of the said 6.5 decimals of land.  It  is also evident

from the order of this Court that the respondents herein shall

also  not  interfere  with  the  possession  and  enjoyment  of  the

rest  of  the  land.  It  appears  from  the  record  that  the

predecessor-in-interest of the present appellants had no right,

title and interest in the remaining four decimals of land in plot

No.108,  Dr.Girindra  Shekar  Basu  Road,  Calcutta.  This  is

because Schedule ‘B’ of the plaint of the instant suit relates to

the property which was the subject  matter  of  a partition  suit

which also ended before this Court in another SLP No.7156 of

1982  and  wherein  it  was  held  by  this  court  that  Late  S.A.

Hossain, the predecessor-in-interest of the present appellants,

did not acquire any share in respect  of the said‘B’  Schedule

property. The orders passed by the courts below would show

that  the  said  orders  were  passed,  inter  alia,  on  the

interpretation of the order of this court in SLP(C)No.4263-65 of

1992 by holding that the title of the predecessor-in-interest of

the appellants was declared by this court in the aforesaid order

in respect  of  33 decimals of  land in premises No. 108A,  Dr.

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Girindra Sekhar Basu Road, Calcutta. The Courts below also

held that the title of the respondents was declared by this court

in the aforesaid order in respect of the rest 6.5 decimals of land

in Premises No. 108, Dr. Girindra Sekhar Basu Road, Calcutta-

39. The case of the appellants 1 to 7 is that the actual extent of

Holding  No.  108  was  39.5  decimals,  which  was  wrongly

assumed as 37 decimals and therefore, the respondents were

in actual possession of 6.5 decimals (instead of 4 decimals) in

Holding No. 108.  At this stage, we prefer to read the order of

this  court  more  minutely.  From  a  reading  of  the  same,  it

appears to 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 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 appellants

1 to 7 from the predecessor-in-interest of the respondents. It

was  this  33  decimals  of  land  which  was  in  dispute  and

18

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  [C]  No.  4263-65  of  1992,  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 of the suits out of

which the special leave petitions viz. SLP [C] No. 4263-65 of

1992  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. 7156 of 1982. Therefore, we are of

19

the  view  that  the  findings  of  the  High  Court,  on  the

interpretation of the order of this court in SLP [C] No. 4263-65

of 1992, were prima facie not incorrect and in fact, the findings

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  [C]  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 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 108A) 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 retained by Ujir Ali 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. 108A.  

20

15. From the above, it can be concluded that the order of this

court  in  SLP  [C]  No.  4263-65  of  1992  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 direct the parties to maintain status quo as

regards the character and nature 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 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  in  respect  of  the

possession  thereof  till  the  disposal  of  the  suit.  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

21

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 a 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 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 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  Bablya  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

22

the  disputed  land,  an  order  of  injunction  restraining  the

defendant 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 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

23

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

24

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.

NEW DELHI       …………………………J.  MAY 14, 2008      [ TARUN CHATTERJEE ]

_____________________________________________

25

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3650./2008 (Arising out of Special Leave petition (C) No.16346/2005)

Shaikh Ali Hossain & Ors.     ……..Appellant (s)

Versus

Sk. Showkat Ali & Anr. ……. Respondent (s)

J U D G M E N T

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 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

26

Bahar Ali  Mistri.  They sold 33 decimals out of the said property to their

nephew S. A. Hossain (of whom defendants   1 to 7 are the LRs.)  under

registered sale-deed 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. 108A. More than a decade later,

Title Suit No. 143/1961 was filed by Ujir Ali and LRs. of Bahar Ali for a

declaration that the sale-deed dated 27.2.1948 in favour of S.A.Hossain was

obtained 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 second appeal. Thereafter, S.

A. Hossain filed Title Suit No.67/1971 asserting his title and possession in

respect of premises No.108A 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  (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. A. Hossain.  By common judgment  dated

26.8.1982 S.A.Hossain's suit for injunction was decreed and the suits filed

27

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 that they were in possession of Premises

No.108A. The said judgment was affirmed in appeal by the Addl. District

Judge, Alipur by common judgment dated 18.5.1984. The Second appeals

filed by the LRs namely Ujir Ali were 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 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  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  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.

28

3. The  plaintiffs  in  the  present  suit  (LRs.  of  Ujir  Ali),  interpret  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 entitled 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

plaintiffs.  On the said averments,  the plaintiffs have sought a declaration

that defendants did not have any right, title or interest 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) 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 decimals in property No.108,

Ujir Ali and his brother sold 33 decimals to S.A.Hossain in the year 1948;

29

that  it was subsequently 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  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

both rounds in all three courts. On both occasions, the title and possession

of  S.A.Hossain  was  upheld.   In  the  second  round  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.108) and that the extent of property in

his possession was 33 decimals (Premises No.108A); 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, 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

30

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 decimals  (in  Premises  No.108)  as

owners,  and S.  A.  Hossain  was entitled  to  continue  in  possession  of  33

decimals (Premises No.108A) 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 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

attempting to misread and misrepresent the judgment of this Court in Civil

Appeal  No.3983-85/1995 to grab an area of 6.5 decimals 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 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.189/71 and 421/71. The decree of the Trial Court is accordingly modified. Both the parties are directed not to interfere

31

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 24.3.1995 of

this Court in Civil Appeal No.3983-85/1995 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 decimals) and plaintiffs are in possession of 6.5 decimals  (No.108) and 6.5 decimals (out of  Premies No.108A) in all  13 decimals and defendants (LRs of S. A. Hossain) are in possession of 26.5 decimals in Premises No.108A.  

(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 retained by Ujir Ali and his brother. But as the actual  total  extent  was  39.5  decimals,  the  plaintiffs  were  in possession  of  6.5  decimals  (Premises  No.108)  and  S.A. Hossain was holding 33 decimals (Premises No.108A) (instead of plaintiffs holding 4 decimals and S.A. Hossain holding the remaining extent of 35.5 decimals).  

(c) The  total  extent  held  by  Ujir  Ali  and  Bahar  Ali  was  37 decimals  and  plaintiffs  are  in  possession  of  4  decimals  in Premises No.108 and 6.5 decimals in Premises No.108A, in all 10.5  decimals  and  defendants  are  in  possession  of  26.5 decimals in Premises No.108A.  

(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

32

(in No.108)  and the defendants  are entitled to  the  remaining extent of 30.5 decimals (No.108A).

The  plaintiffs  (respondents  herein)  have  put  forth  interpretation  (a).  The

defendants  (appellants  herein)  have  put  forth  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 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 say that

appellants  were  in  possession  of  "6.5  decimals  of  land  in  Premises

No.108A" 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 context of the entire order and the subject matter

of the dispute before this Court, clearly refer to the rest of the land after

excluding 6.5 decimals out of the total original extent (which was assumed

33

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 the LRs of Ujir Ali were entitled to 6.5

decimals. The interpretation put forth by plaintiffs that 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  the  background  in  which  the  decision  was

rendered support plaintiffs' interpretation.  

7. I  may also  refer  to  the  following  circumstances  which  favour  the

interpretation put forth by the appellants – defendants:  

(i) If  the  title  and  possession  in  regard  to  6.5  decimals  in  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  No.108A,  in  addition  to  the  extent  held  in  No.108  (as  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.

(ii) While plaintiffs specified the extent of Schedule 'A' property as 6.5

decimals  forming part  of  Premises  No.108A, significantly,  they have not

34

given the measurement or extent of Schedule 'B' property that is Premises

No.108, which according to them, was the 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  before  the trial  court  that  the extent  of  Premises

No.108  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.   

(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

obvious. Any positive prayer for declaration of their title would have been

barred by principles of res judicata. The 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 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

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taking  advantage  of  the  fact  that  it  was  not  a  detailed  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 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

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.  

10. Consequently, 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 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 defendants will be entitled to the remainder. That is, if the total area is

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37 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  S.A.Hossain  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 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).  

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  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 appeal. The High Court while exercising

the power under Article 227 of the Constitution of India interfered with the

said concurrent findings and held that there was a triable issue in the suit.

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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.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, such a finding was wholly unwarranted.  

12. Grant or refusal of an injunction is within the judicial 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 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

and calls for interference.  

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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 temporary injunction.  

……………………..J [R. V. Raveendran]

New Delhi;  May 14, 2008.

______________________________________________________

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REPORTABLE   

IN THE SUPREME COURT OF INDIA CIVIL APPELATE JURISDICTION

CIVIL APPEAL NO._3650_OF 2008 (arising out of SLP(C)NO.16346 of 2005)

SHAIKH ALI HOSSAIN & ORS. ....PETITIONERS/     APPELLANTS

VERSUS

SK. SHOWKAT ALI & ANR. .... RESPONDENTS

O R D E R

    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.

......................J. (TARUN CHATTERJEE)       

......................J. (R.V. RAVEENDRAN)        

New Delhi, May 14, 2008.

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