Hon'ble Mr. Justice Ashok Bhushan
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REPORTABLE
IN THE SUPREME COURT OFINDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 21 OF 2019
[Arising out of S.L.P. (C) No. 26645 of 2015]
The State of Jharkhand …Appellant
Versus
Surendra Kumar Srivastava & Ors. …Respondents
WITH
CIVIL APPEAL NO. 22 OF 2019
[Arising out of S.L.P. (C) No. 24684 of 2015]
J U D G M E N T
INDU MALHOTRA,J.
Leave granted.
1. The present Civil Appeals arise out of S.L.P. (C) Nos. 26645
and 24684 of 2015 which have been filed to challenge the
Judgment dated May 19, 2015 passed by the Jharkhand
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High Court in W.P. (C) No. 2081 of 2015. The Writ Petition
had been filed by Respondent Nos. 1 to 3 herein to
challenge the Order dated 07.04.2015 refusing to grant
Interim Relief in an Application filed under Order XXXIX
Rules 1 and 2 of the CPC in Title Suit No. 45/2015, and
Order dated 21.04.2015 passed by the District Court.
2. A brief factual background of this case is set out herein
below:
2.1. According to the Writ Petitioners/Respondent Nos. 1
to 3 herein, their mother – late Smt. Shyal Devi had
purchased about 3.61 acres of land1 (“suit property”)
from Raju Gour and Shatrughan Gour by way of two
unregistered Sale Deeds dated 30.04.1958. According
to Respondent Nos. 1 to 3, late Smt. Shyal Devi had
raised a structure over a part of the suit property,
and was cultivating the rest of it. The said land was
1 Recorded in R.S. Khatian of 1937 under Khata No. 19 (Plot Nos. 3737,
3733, 3710, 3741, 3749, 3751, 3752, 3753, 3754 and 3755), Khata No.
21 (Plot No. 3742), Khata No. 33 [Plot Nos. 3718, New Plot Nos. 2657,
2658, 2659, 2660, a portion of 2650, 2626(p), 2656(p), 2653(p), 2655(p)
Thana No. 1198 and 1151]. The above-described land was stated to be
situated in mouza agricultural and bara, P.S. Sidhgora, District
Singhbhum East, and was incorporated in new Khatian No. 24 in the
finally published record of rights of Jamshedpur Notified Area (1995-
1996).
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situated adjacent to the land belonging to the Bihar
State Road Transport Corporation.
2.2. In 1992, Smt. Shyal Devi filed Title Suit No.
153/1992 before the Additional Munsif, Jamshedpur
alleging that the officials of the Bihar State Road
Transport Corporation were disturbing her possession
of the suit property since 1990.
The Additional Munsif vide Judgment and
Decree dated 18/27.02.1999 decreed the Suit in
favour of the Plaintiff – late Smt. Shyal Devi, and
confirmed her possession since 1958. The Bihar
State Road Transport Corporation was restrained
from interfering with the peaceful possession of Smt.
Shyal Devi. The relevant extract of the findings of the
Additional Munsif contained in the Judgment is
reproduced hereinbelow:
“11. In view of the aforesaid discussion, I
found that plaintiff [Smt. Shyal Devi] has
proved her possession of the suit land since
1958 and as such these issues are decided in
favour of the plaintiff and against the
defendant.”
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2.3. The Bihar State Road Transport Corporation filed
Title Appeal No. 20/1999 to challenge the Judgment
and Decree dated 18/27.02.1999 before the
Additional District Judge, East Singhbhum,
Jamshedpur.
The Title Appeal No. 20/1999 was dismissed
by the Additional District Judge on the ground of
possession. However, the District Judge held that
the Plaintiff had failed to establish her title, and it
would be open for the Bihar State Road Transport
Corporation to file a suit against late Smt. Shyal Devi
for declaration of title over the land, and to seek her
eviction.
2.4. The Bihar State Road Transport Corporation
preferred Second Appeal No. 17509/2005 against the
Judgment dated 29.08.2005 passed by the Additional
District Judge before the Jharkhand High Court,
which is currently pending adjudication.
2.5. It is relevant to mention that late Smt. Shyal Devi did
not challenge the finding that she had failed to
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establish her title before the High Court. Hence, the
finding of the Additional District Judge attained
finality.
2.6. During the pendency of the Second Appeal, the
Deputy Commissioner, East Singhbhum,
Jamshedpur sought a No-Objection Certificate vide
letter dated 13.10.2012 from the Transport
Commissioner, Jharkhand for the construction of an
Electricity Sub-station on the land comprised in
Khata No. 24 (Plot Nos. 2650, 2652, 2656, and 2657)
in Jamshedpur, recorded in the name of the Bihar
State Road Transport Corporation.
The Transport Commissioner vide letter dated
04.03.2015 conveyed that it had no objection for
transfer of the said land for the construction of an
Electricity Sub-station thereupon.
2.7. During the pendency of proceedings before the High
Court, Smt. Shyal Devi expired 24.02.2014 leaving
behind three sons i.e. Respondent Nos. 1 to 3, as her
legal representatives and successors.
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2.8. Respondent Nos. 1 to 3 filed Title Suit No. 45/2015
before the Civil Judge (Junior Division – I),
Jamshedpur seeking permanent injunction to
restrain the Appellant –The General Manager,
Jharkhand State Electricity Board [in S.L.P. (C) No.
24684 of 2015] from interfering with their alleged
possession of the suit property, along with an
Application for Temporary Injunction.
2.9. The Civil Judge (Junior Division – I) vide Order dated
07.04.2015 dismissed the Application for Temporary
Injunction filed by Respondent Nos. 1 to 3. It was
held that Respondent Nos. 1 to 3 failed to describe
the specific area/portion of the suit property which
was in their alleged possession, over which the
construction of the Electricity Sub-station was being
carried out by the Jharkhand State Electricity Board.
The Civil Judge (Junior Division – I)
concluded that Respondent Nos. 1 to 3 had failed to
make out a prima facie case, and held that no
irreparable loss would be caused, which could not be
compensated in terms of money.
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2.10. Aggrieved by the Order dated 07.04.2015,
Respondent Nos. 1 to 3 filed an Appeal under Order
XLIII, Rule 1(r) of the CPC before the District Judge
III-cum-MACT, East Singhbhum, Jamshedpur.
The Appeal was dismissed vide Order dated
21.04.2015 whereby the District Judge affirmed the
Order passed by the Civil Judge (Junior Division – I)
dated 07.04.2015.
It was held that Respondent Nos. 1 to 3 had
failed to demarcate the suit property in the Plaint to
show that the construction activity was taking place
on their land. The Plaintiffs had not placed on record
the old Khatian, or the new Khatian.
Respondent Nos. 1 to 3 were making a claim
of possession with respect to 3.61 acres of land
recorded in R.S. Khatian of 1937 under Khata No. 19
(Plot Nos. 3737, 3733, 3710, 3741, 3749, 3751,
3752, 3753, 3754 and 3755), Khata No. 21 (Plot No.
3742), Khata No. 33 [Plot Nos. 3718, New Plot Nos.
2657, 2658, 2659, 2660, a portion of 2650, 2626(p),
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2656(p), 2653(p), 2655(p) Thana No. 1198 and
1151]. The said land stated to be situated in Mouza
Baridih and Bara, P.S. Sidhgora, District Singhbhum
East, in new Khatian No. 24 in the finally published
record of rights of Jamshedpur Notified Area (1995-
1996).
On the other hand, the Counsel for the State
Electricity Board stated that 1.47 acres of land
recorded as Khata No. 24 (Plot Nos. 2650, 2652,
2656 and 2657) was registered in the name of the
Bihar State Road Transport Corporation, as Anabad
land. The Board placed reliance on trace map, and a
letter dated March 4, 2015 addressed by the
Transport Commissioner, Ranchi, Jharkhand to the
Deputy Commissioner, East Singhbhum,
Jamshedpur making the land available for the
Jharkhand State Electricity Board.
The District Court held that the Plaintiffs had
produced no rent receipts, or municipal receipts to
corroborate their plea of alleged possession over the
disputed suit property.
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The District Court found that Respondent No.
3 – Narendra Kumar Srivastava had concealed a
material fact that he had filed a Writ Petition before
the High Court seeking an injunction from
construction of a boundary wall and digging on the
suit property by the Appellant – The General
Manager, Jharkhand State Electricity Board [in
S.L.P. (C) No. 24684 of 2015]. The Writ Petition came
to be withdrawn on 24.04.2015. The suppression of
a material fact warranted the drawing of an adverse
inference against the Respondents. The grant of
injunction being a discretionary relief, Respondent
Nos. 1 to 3 were found to not be entitled to the same.
2.11. Aggrieved by the judgment of the District Judge,
Respondent Nos. 1 to 3 filed W.P. (C) No. 2081 of
2015 before the Jharkhand High Court seeking a writ
of certiorari to quash the Order dated 07.04.2015
passed by the Civil Judge (Junior Division – I) in Title
Suit No. 45/2015, and Order dated 21.04.2015
passed by the District Court in Misc. Appeal No.
5/2015.
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2.12. The Electricity Board filed a Counter Affidavit along
with photographs of the construction of the Electricity
Sub-station. It was submitted that almost 90% of the
construction work of the Electricity Sub-station had
already been completed. It was further stated that the
grant of an injunction would seriously affect public
interest, and the welfare scheme for providing
electricity to the local populace at subsidised rates.
2.13. The learned Single Judge of the High Court vide the
impugned Judgment dated 19.05.2015 allowed W.P.
(C) No. 2081 of 2015 filed by Respondent Nos. 1 to 3,
and directed the parties to maintain status quo with
respect to the suit property. It was clarified, that the
Appellant – The General Manager, Jharkhand State
Electricity Board [in S.L.P. (C) No. 24684 of 2015]
was, however, at liberty to raise construction on any
other land, except the disputed suit property.
The learned Single Judge held that the
findings of the courts below with respect to there
being no prima facie case in favour of Respondents
No. 1 to 3 was erroneous in view of the judicial
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findings in their favour in the previous round of
litigation in Title Suit No. 153/1992, and Title
Appeal No. 20/1999.
The Single Judge held that the courts below
dismissed the Application for Temporary Injunction
filed by Respondent Nos 1 to 3 on the ground that
Respondent Nos. 1 to 3 (Plaintiffs) had failed to
specifically describe the disputed suit property, even
though the description of the disputed suit property
was not objected by the Jharkhand State Electricity
Board.
On balance of convenience, the Single Judge
held that in case the Appellant – The General
Manager, Jharkhand State Electricity Board [in
S.L.P. (C) No. 24684 of 2015] completes the
construction of the Electricity Sub-station,
Respondent Nos. 1 to 3 would be under a
compulsion to accept compensation, even if the Title
Suit No. 45/2015 was decreed in their favour.
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The Single Judge held that the photographs
produced by the Appellant Electricity Board only
indicated the raising of electricity poles, and no other
construction had been raised on the disputed Suit
Land.
3. Aggrieved by the impugned Judgment dated 19.05.2015
passed by the learned Single Judge of the High Court, the
State of Jharkhand filed the present S.L.P. (C) No. 26645 of
2015, and the General Manager, Jharkhand State
Electricity Board filed S.L.P. (C) No. 24684 of 2015.
3.1. This Court vide Interim Order dated 14.12.2015,
granted liberty to the Appellant – The General
Manager, Jharkhand State Electricity Board [in S.L.P.
(C) No. 24684 of 2015] to draw the supply lines.
3.2. The Appellant – The General Manager, Jharkhand
State Electricity Board [in S.L.P. (C) No. 24684 of
2015] in I.A. Nos. 91857 & 91859/2018, sought
permission to energise the Electricity Sub-station,
after depositing the costs of the suit property as
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assessed by the Circle Officer, Jamshedpur before the
Deputy Commissioner, Jamshedpur.
3.3. During the pendency of the proceedings, the
Electricity Sub-station has been fully constructed
having a capacity of 33/11 K.V. As per the Executive
Engineer, Electricity Supply Division, Jamshedpur
approximately 1 lakh people residing in the nearby
areas would be benefitted by the supply of electricity,
and it would result in reduction of loss of load on
other Electricity Sub-stations situated in the vicinity.
4. The Appellants and Respondent No. 4 in both the Special
Leave Petitions were represented by Mr. Ajit Kumar Sinha,
Senior Advocate, while Respondent Nos. 1 to 3 were
represented by Mr. Satpal Singh, Advocate.
4.1. The learned Senior Counsel appearing for the
Appellants, inter alia submitted that Writ Petition No.
2081 of 2015, seeking a writ of certiorari, was not
maintainable, as it was filed to challenge judicial
orders passed by civil courts. Learned Counsel placed
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reliance on the decision of a three-judge bench in
Radhey Shyam v. Chhabi Nath & Ors.2.
4.2. On merits, it was submitted that Respondent Nos. 1
to 3 did not have title to the disputed suit property.
The Counsel relied on the findings in the Judgment
dated 29.09.2005 passed in Title Appeal No. 20/1999
wherein the Additional District Judge had clearly held
that the mother of Respondent Nos. 1 to 3 had failed
to prove her title with respect to the disputed suit
property. The said finding attained finality, since late
Smt. Shyal Devi, or her legal heirs and successors i.e.
Respondent Nos. 1 to 3 had not challenged the
finding any further.
4.3. It was further submitted that the State of Jharkhand
was the owner of the suit property, which was
evidenced from the revenue records of the suit
property recorded in the name of the Bihar State
Road Transport Corporation.
2 (2015) 5 SCC 423.
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The learned Senior Counsel submitted that
TISCO Ltd. had transferred 16.529 acres of land to
the Bihar State Road Transport Corporation. The
suit property was recorded in the name of the Bihar
State Road Transport Corporation in the recent
survey (khatiyal). The Electricity Sub-station has
been constructed on 1.47 acres of land registered as
Khata No. 24 (Plot Nos. 2650, 2652, 2656 and 2657)
made available to the Jharkhand State Electricity
Board by the Transport Department, Ranchi,
Jharkhand vide letter dated 04.03.2015.
4.4. Pursuant to the interim Order dated 14.12.2015, the
Electricity Sub-station had been completely
constructed, and would provide electricity to over 1
lakh people residing in the vicinity.
4.5. It was further submitted that the learned Single
Judge erred in allowing W.P. (C) No. 2081 of 2015
since Respondent Nos. 1 to 3 had failed to make out a
prima facie case in their favour. They had also failed
to demarcate the area in their alleged possession, in
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the Plaint, on which the electricity Sub-station was
being constructed.
The balance of convenience was in favour of
the Appellant-Electricity Board, in view of the overriding public interest in providing electricity to over 1
lakh people. Further, no irreparable loss or injury
would be caused to Respondent Nos. 1 to 3 as they
could always be adequately compensated under
Section 67 of the Electricity Act, 2003, if found
entitled.
4.6. On the other hand, Advocate Mr. Satpal Singh
supported the findings of the learned Single Judge of
the High Court.
It was submitted that the title to the disputed
suit property vested in Respondent Nos. 1 to 3 since
the issue pertaining to title was decided by the
Additional Munsif in favour of the mother of
Respondent Nos. 1 to 3, vide Judgment dated
18.02.1999. Title Appeal No. 20/1999 filed by the
Bihar State Road Transport Corporation against the
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Judgment of the Additional Munsif was dismissed by
the Additional District Judge, vide Judgment dated
29.08.2005. Although, Second Appeal No.
17509/2005 had been filed by the Bihar State
Transport Corporation against the Judgment dated
29.08.2005 passed by the Additional District Judge,
it was pending final determination before the High
Court.
The learned Advocate contended that the
mere pendency of the Second Appeal No.
17059/2005 would not entitle the Bihar State Road
Transport Corporation to transfer the disputed suit
property to the Appellant – General Manager,
Jharkhand State Electricity Board [in SLP (Civil) No.
24684 of 2015].
The Appellant–State Electricity Board failed to
establish its title or possession over the disputed
Suit property, since it had not produced any material
except the letter of the Transport Commissioner
dated 04.03.2015 and a map.
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The learned Counsel relied on the decisions of
this Court in Meghmala & Ors. v. G. Narasimha
Reddy & Ors.3 and Rame Gowda (dead) by LRs v. M.
Varadappa Naidu (dead) by LRs & Anr.4 to submit
that a person who is in settled possession, even in
case he is a trespasser, has the right to be protected
against forcible eviction, and can be evicted only
after following the procedure prescribed by law.
5. The limited issue which arises for consideration in the
present Civil Appeals is whether the learned Single Judge
of the High Court was justified in directing the parties to
maintain status quo during the pendency of the Title Suit
No. 45/2015 before the Court of Civil Judge (Junior
Division – I), Jamshedpur.
6. DISCUSSION AND ANALYSIS
We have heard the Counsel for both parties at
length, perused the pleadings, and the written
submissions filed in the present Civil Appeals.
3 (2010) 8 SCC 383, paragraphs 46-48.
4 (2004) 1 SCC 769.
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6.1. With respect to the first submission of the learned
counsel for the Appellants that the Writ Petition filed
by Respondent Nos. 1 to 3/Plaintiffs for a writ of
certiorari to quash the Order dated 07.04.2015
passed by the Civil Judge (Junior Division) and the
Order dated 21.04.2015 passed by the District Judge
was not maintainable in view of the judgment of the
three-judge bench in Radhey Shyam v. Chhabi Nath &
Ors.5, there cannot be any dispute to the law laid
down by this Court in Radhey Shyam v. Chhabi Nath
& Ors. (supra), but in the facts of the present case, we
do not propose to unsettle the judgment of the High
Court on the above ground due to two reasons, firstly,
in the High Court, the Appellants, who were
Respondents in the Writ Petition, did not challenge
the maintainability of the Writ Petition under Article
226 of the Constitution of India, and secondly, had
the Appellants raised the above objection regarding
maintainability of the Writ Petition, the course open
for Plaintiffs/Respondent Nos. 1 to 3 was to amend
5 (2015) 5 SCC 423.
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the cause title of the writ petition under Article 227 of
the Constitution, and such a Writ Petition under
Article 227 would have been clearly maintainable.
6.2. The Writ Petition under Article 227 challenging the
orders passed by Civil Courts refusing to grant
interim injunction under Order XXXIX, Rules 1 and 2
of the CPC could very well be maintainable, and the
opportunity to amend the cause title by Respondent
Nos. 1 to 3 by raising any objection to that effect
having been denied to them, we, instead of setting
aside the judgment of the High Court on the above
ground, proceed to examine the contentions on
merits.
6.3. The Learned Single Judge granted an order of status
quo with respect to the construction of the Electricity
Sub-station even though the Plaintiffs/Respondent
Nos. 1 to 3 herein had failed to produce any
documentary evidence whatsoever to establish their
title to the suit property.
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The Additional District Judge in the earlier
round of litigation, in Title Appeal No. 20/1999 vide
Judgment dated 29.08.2005 had categorically held
that late Smt. Shyal Devi, the mother of Respondents
No. 1 to 3 and the predecessor in title, had failed to
establish her title to the suit property. The said
finding has admittedly not been challenged by
Respondent Nos. 1 to 3. The said finding has
attained finality. In this view of the matter, the
Respondents failed to make out a prima facie case,
which would have justified the grant of an interim
injunction.
6.4. Furthermore, the Plaintiffs/Respondent Nos. 1 to 3
also failed to establish that the Electricity Sub-station
was being constructed on their land. The
Respondents No. 1 to 3 failed to describe the specific
area which was in their alleged possession over which
the Electricity Sub-station was being constructed.
6.5. The balance of convenience lies entirely in favour of
the Appellant – The General Manager, Jharkhand
State Electricity Board [in S.L.P. (C) No. 24684 of
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2015] since the entire Electricity Sub-station has
been fully constructed, and is now at the stage of
being energised for supply of electricity inter alia to
four feeders viz. Bhuiyadih (BHU), Baridih (BRD),
Vidyapatinagar (VPN). It is estimated to provide
electricity to approximately 1 lakh people. The Board
is statutorily empowered under Section 67 of the
Electricity Act, 2003 to undertake all actions
necessary for transmission or supply of electricity,
subject to the procedure under the Electricity Act,
2003.
6.6. Respondent Nos. 1 to 3 have failed to produce any
evidence of their possession over the vacant land, no
undue hardship or prejudice would be caused to
them, in the event the Appellant – The General
Manager, Jharkhand State Electricity Board [in S.L.P.
(C) No. 24684 of 2015] is permitted to proceed with
the energisation of the Electricity sub-station.
6.7. In the event that Respondents No. 1 to 3 are able to
establish their title and possession to any part of the
property utilised for the Electricity Sub-station, they
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would be entitled to compensation for any damage,
detriment or inconvenience caused, in accordance
with S. 67(3) of the Electricity Act, 2003, and/or any
other law for the time being in force.
6.8. The Electricity Sub-station is complete in all respects
and ready to be energised, as per the documentary
evidence placed before the Court. The overriding
public interest of providing electricity to the local
populace would far outweigh the alleged interest of
Respondent Nos.1 to 3.
In view of the aforesaid facts and
circumstances, the decision of the Civil Judge
(Junior Division – I) and the District Judge in
refusing to grant a Temporary Injunction in Title Suit
No. 45/2015, was justified, and is restored.
7. In view of the aforesaid reasons, the Civil Appeals are
allowed, and the impugned Judgment dated May 19, 2005
passed by the Learned Single Judge of the Jharkhand High
Court in Writ Petition No. 2081 of 2015 is hereby set aside.
The impugned Judgment ordering the maintenance of
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status quo with respect to the Suit property till the final
disposal of the Title Suit No. 45/2015 stands vacated.
The findings given in this judgment are prima facie
in nature given at the interim stage, and will not influence
the trial of the case.
The pending applications be disposed of accordingly.
Ordered accordingly.
…..……...........................J.
(ASHOK BHUSHAN)
..….……..........................J.
(INDU MALHOTRA)
New Delhi;
January 03, 2019
