Holding

The High Court erred in not framing a substantial question of law and in interfering with a pure factual finding, and the case was not fit for interference under Article 136, so the appeal was dismissed with a modification ordering payment of land value.

Summary

Therakhatoon purchased land in 1966 and later alleged that her neighbour, Slambin Mohammad, illegally occupied part of it and constructed two rooms in 1967. After a delay of several years, she filed a suit for possession, injunction and damages, which was initially dismissed by the trial court, reversed by an appellate court on the ground that the neighbour's 1962 agreement of sale was not genuine, and then set aside by the High Court in a second appeal without framing a substantial question of law. The Supreme Court held that the High Court erred in not framing a substantial question of law under Section 100 CPC and in interfering with a pure factual finding on the agreement's genuineness, but found that the case did not merit interference under Article 136. Consequently, the appeal was dismissed, the High Court's decree restored, and the decree modified to order the respondent to pay the value of the land occupied.

Issues considered

Whether the High Court could interfere with a pure finding of fact on the genuineness of the 1962 agreement without framing a substantial question of law under Section 100 CPC.
Whether the discretionary power under Article 136 continues after grant of special leave and can be exercised to declare law without interfering, or to mould relief.
Whether it was necessary to invoke Article 142 of the Constitution.
What relief, if any, should be granted to the appellant.

Legislation cited

Code of Civil Procedure, 1908s. Section 100
Constitution of Indias. Article 136
Indian Evidence Act, 1872s. Section 3, s. Section 91
Transfer of Property Acts. Section 53-A

Subjects

Special LeaveArticle 136Section 100 CPCSubstantial question of lawSecond appealFactual findingDiscretionary jurisdictionLand encroachmentPossession suitCompensation

Judgment

THERAKHATOON (D) BY LRS. A
v.
SLAMBIN MOHAMMAD

FEBRUARY 26, 1999
B
[S.B. MAJMUDAR AND M. JAGANNADHA RAO, JJ.]
"1

Constitution of India, 1950 :

Article 136-Scope and ambit of-Special Leave-Grant of-Discre-
tion of Supreme Court-Continuance of-Held: Supreme Court's discretion c
at the stage of grant of Special Leave continues when the appeal is heard
thereafter-This principle is applicable to all kinds of appeals-Even after
SLP is admitted, the appellant must show exceptional and special circumstan-
ces to warrant interference-Therefore, Supreme Court may declare the law
or point out the error of the lower court but still it may not interfere if special
.. on fact circumstances are not shown and the justice of the case does not D
require interference or if the relief could be moulded in a different f ashion-ln
the circumstances of the case, the High Court erred in not framing a substan-
tial question of law and in interfering on a pure question offact-Such a
course not pennissible in law-However, in the peculiar circumstances not a
fit case for interference under Art. 136-The plaintiff could be adequately E
compensated by wiry of damages.

Code of Civil Procedure, 1908: Section 100.

Second appeal-Appellate court-Scope and powers of-Held : Appel-
late court must frame a substantial question of law when hearing second F
aPl'eal-Further appellate court cannot interfere with a pure finding offact
when dealing with second appeals-However, appellate court is within its
jurisdiction to point out factual errors in a judgment appealed against.

Evidence Act, 1872: Sections 3 and 91.
G
Document-Genuineness of-Factors affecting-Long gap of five and
a half years between date of agreement for sale and execution of sale
-f deed-Also it was written on a small piece of paper with a revenue stamp
affixed thereon and not on regular non-judicial stamp papel'-fleld: These
circumstances are all relevant in considering the genuineness of the agreement. H
901
902 SUPREME COURT REPORTS (1999] 1 S.C.R.
A The appellant plaintiff had purchased a piece of land under a
registered sale deed dated 14.1.1966. The respondent- defendant purchased
from the same vendor an adjacent piece of land on 13.12.1967. According
to the appellant-plaintiff, on 30.12.1967 the respondent-defendant illegally
occupied a portion of the land belonging to the appellant and also con-
B structed two rooms upon it. However, the appellant did not raise any
objections till seven years after the trespass and illegal construction and
issued notice only on 14.6.1974. But the respondent refused to vacate or >-
remove the construction. Thereupon, the appellant filed a suit on 14.7.1975
for possession of the disputed portion, for mandatory injunction, for
removal of the two rooms and for damages. The respondent contended
C before the· trial court that he had entered into an agreement for sale on
10.12.1962 in respect of the said adjacent piece of land including the
disputed portion and that he had constructed the two rooms long before
the appellant purchased her land.

D The Trial Court dismissed the suit. However, the appellate court
decreed the suit on the ground that the agreement of purchase set up by : j.

the respondent was not genuine inasmuch as there was a long gap of five
and a half years between the agreement of sale and execution of sale deed;
that it was written on a small piece of paper with a revenue stamp amxed·
thereon and not upon regular non-judicial stamp paper. However, the
E High Court, in second appeal set aside the decree without even framing a
substantial question of law. Hence this appeal.

On behalf o( the appellant-plaintiff it was contended that the High ·
Court was not right in setting aside the decree without framing any
p substantial question of law; and that the High Court could not have
interfered with a pure question of fact relating to the genuineness of""he
agreement of sale in second appeal.

On behalf of the respondent-defendant it was contended that this -
Court in exercise of its discretion under Article 136, which discretion was
G available even after grant of special leave, should not interfere and grant
possession coupled with a direction for removal of the rooms; and that
this Court under Article 136 could mould the relief and grant compensa-
tion. ..-

H Dismissing the appeal, this Court
THERAKHATOON v. SLAMBIN MOHAMMAD 903

HELD : 1.1. Though special leave is granted, the discretionary power A
which vested in the Court at the stage of the special leave petition con-
tinues to remain with the Court even at the stage when the appeal comes
up for hearing and when both sides are heard on merits in the appeal. This
principle is applicable to all kinds of appeals admitted by special leave
under Article 136, irrespective of the nature of subject matter. [910-D]
B
P1itam Singh v. State, [1950) SCR 453, followed.

Ibrahim v. Rex, AIR (1914) PC 615, approved.

Riel's Case 1885-10 AC 675 and Ex palte Deeming, (1892) AC 422,
cited. c
1.2. Therefore, even after the appeal is admitted and special leave is
granted, the appellant must show that exceptional and special circumstan-
ces exist, and that, if there is no interference, substantial and grave injus·
tice will result and that the case has features of sufficient gravity to warrant D
a review of the decision appealed against, on merits. Only then would this
Court exercise its over-riding powers under Article 136. [911-G-H]

Hem Raj v. State of Ajmer, [1954] SCR 1133, followed.

1.3. Hence, even if this Court is dealing with the appeal after grant E
of special leave, it is not bound to go into merits and even if it does so it
may not interfere if the justice of the case on facts does not require
interference or if it feels that the relief could be moulded in a different
fashion. [912-G]

Bengal Chemical & Phannaceutical Works Ltd. v. Their Workman, F
[1959] Suppl. 2 SCR 136 and Municipal Board, Pratapgarh v. Mahendra
Singh Chawla, [1982] 3 SCC 331, relied on.

1.4. Therefore, this court declares the law by holding that the High
Court while dealing with a second Appeal under Section 100 of the Code
of Civil Procedure, 1908 erred in not framing a substantial question of law G
and that it also erred in interfering with a pure question of fact relating
to the genuineness of the agreement. It is declared that this was not
permissible in law. However, in the peculiar circumstances this is not a fit
case for interference under Article 136. The appellant-plaintiff could be
adequately compensated by way of namages. [913-A-C] H
~

904 SUPREME COURT REPORTS [1999] 1 S.C.R.

A 2. The High Court erred in not framing a substantial question of law ,.
as required by Section 100 CPC. Again the High Court should not have
interfered with a pure finding of fact regarding the genuineness of the
agreement of sale when dealing with second appeals under Section 100
CPC. However, the High Court is right in pointing out factual errors in a
judgment under appeal. [908-F-H]
B
Kshitish Chandra Pwkait v. Santosh Kumar Purkait, [1997) 5 SCC 438 ..
and Sheet Chand v. Prakash Chand, [1998) 6 SCC 683, relied on.
~

3. There was a long gap of 5 and a half years between the date of the
alleged agreement of sale and the defendant's sale deed and that the
c agreement is written up on a small piece of paper with a revenue stamp
affixed thereon and not upon regular non-judicial stamp paper. These
circumstances are all relevant in considering the genuineness of the agree-
ment. [909-B)

D CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4341 of
;..
1988.

From the Judgment and Order dated 19.9.87 of the Bombay High
Court in Second Appeal No. 543 of 1979.

E Subrat Birla, Ms. Vipin Gupta and S.C. Birla for the Appellants.

A.P. Mayee and A.M. Khanwilkar for the Respondent.

The Judgment of the Court was delivered by

F M. JAGANNADHA RAO, J. This appeal has been preferred by the
plaintiff in the suit against the judgment and decree of the Bombay High ""
Court in S.A.No.543 of 1979 dated 19.9.1987. By that judgment the Second
Appeal was allowed, the judgment dated 16.3.1979 of the lower appellate
court decreeing the plaintiff-appellant's suit was set aside and the judgment j...

of the Trial Court in Civil Suit No. 151 of 1975 passed by the Third Joint
G Civil Judge, Junior Division, Aurangabad dated 23.2.1977 was restored.
The dispute between the parties, who are neighbours, covers an extent of
25' x 11' upon which the defendant constructed two rooms. The appellant's
case is that the above extent is part of the appellant's property and that the ~

defendant-respondent has encroached upon it and has made the construe-
H tion of the two rooms. The suit is for possession of the area of 25' x 11' and
1HERAKHAT00Nv. SLAMBINMOHAMMAD [M.JAGANNADHARAO,J.] 905

for directing removal of the two rooms. Pending these proceedings, the A
plaintiff-appellant died and her legal representatives were brought on
record.

The brief facts of the case are as follows:

The plaintiff-appellant purchased open space 75' x 25' from the B
common-owner, one Mohd. Ali on 14.1.1966 for Rs.700 under a registered
sale deed in Mohalla Shahabazar in Aurangabad town. According to the
Plaintiff, she constructed two rooms on western side of the purchased
portion leaving some open space on the eastern side and long thereafter,
the defendant purchased land from the same vendor, Mohd. Ali on the c
eastern side on 13.12.1967 and allegedly occupied the disputed area of 25'
x 11' in question on 30.12.1967. Subsequently, defendant is said to have
illegally constructed those two rooms on this area without the permission
of the Municipality. Plaintiff alleges she complained to the Town Surveyor
who came to survey the properties but he did not consider her claim but D
advised her to go to a Civil Court. The plaintiff issued notice on 14.6.1974
and the defendant sent reply refusing to vacate or remove the construction.
The suit was, therefore, laid on 14.2.1975 for possession of the land, for
mandatory injunction for removal of the two rooms and for damages for 3
years, at Rs.600 in all.
E
The defendant-respondent contended that prior to his purchase
under sale deed dated 13.12.1967, he had entered into an agreement of
purchase on 10.2.1962 for an extent of land of 53' x 23 yards 2' which
included the disputed portion and that he had constructed the two shops
J.. long before 14.1.1966, when the plaintiff purchased the vacant piece of land F
by the side of the land which he had purchased under the agreement.
According to him, there was no question of any encroachment on
30.12.1967.

On these pleadings, the Trial Court framed various issues and held
that the evidence of the witnesses produced by the plaintiff was not G
acceptable and that plaintiff had failed to prove her ownership over the
disputed site. Consequently, the plaintiff must be deemed to have failed in
proving encroachment by defendant from 30.12.1967. The defendant had
examined DW2, the attestor of the agreement of purchase dated 10.2.1962
who was also the mason who was engaged for construction of the rooms. H
906 SUPREME COURT REPORTS (1999) 1 S.C.R.

A DW3 was one of the attestors of the defendant's sale deed. The Trial Court .II

held that in view of the agreement of sale and possession under the
agreement of sale of 10.2.1962, the defendant was entitled to the protection
of section 53~A of the Transfer of Property Act. The suit was, therefore,
dismissed.

B
The plaintiff appealed before the Joint Judge at Aurangabad who ,.
reversed the judgment and decree of the Trial Court holding, inter-alia,
that the suit site formed part of the land conveyed to the plaintiff under '"'"'
the sale deed dated 14.1.1966 and that if that be so, the same vendor had
no right to convey the disputed area by including the same in the sale deed
c dated 13.12.1967 along with other land sold in favour of the defendant. The
agreement of purchase dated 10.2.1962 set up by the defendant was written
up in Urdu on a small piece of white paper (with a revenue stamp annexed)
and was not a genuine document but was obviously an ante-dated one. If
the agreement was not true, the defendant could not have come into
D possession of this overlapping part in 1962 nor could he have constructed
the two rooms before the sale deed dated 13.12.1967 was executed in his
favour. There were also various other circumstances which proved that the
agreement of sale could not be true, namely that while the consideration
for the agreement was Rs.300, only Rs.50 was paid in 1962 and the balance -
of Rs.250 remained payable at the time of registration of the regular sale
E deed. There was undue delay between the date of the agreement of 1962
and the date of sale- deed in 1967 and this circumstance improbablised the
agreement. The defendant never gave any notice to his vendor for 5 1/2
years seeking execution of sale deed. The recitals in the latter sale- deed
dated 13.12.1967 showed that defendant was aware of plaintiff's sale-deed
F dated 14.1.1966. The plea that defendant constructed two rooms long )_

before plaintiffs sale deed of 14.1.1966 was not acceptable inasmuch as the
plaintiff would have objected if the vendor was selling land over which the
defendant had already built two rooms. Further, the signature of Mohd.
-,
Ali, the vendor was not on the revenue stamp. What was quite un- under-
standable -was that the boundary description of the plot in the so called
G agreement of 1962 showed the name of the plaintiff as the owner of the
property on the west, even though by 10.2.1962 plaintiff had not purchased
the land on the West. The Appellate Court observed that though the name
....
of the plaiiltiff was found mentioned in the agreement of 1962, it appeared
to -have been struck off later. All thes_e circumstances showed thaVthe
H agreement was not true. Even if the agreement was true, it would not create
\-
''

THERAKHATOONv. SLAMBINMOHAMMAD [M.JAGANNADHARAO,J.] 907

any title in favour of the defendant unless a suit for specific performance A
was filed and a sale deed was obtained. Inasmuch as the plaintiff had
proved title and the defendant had encroached, the suit for possession was
required to be decreed and the two rooms were liable to be removed.
Mesne profits were accordingly allowed at one rupee per month, in all,
Rs.36 for 3 years. In the result, the suit was decreed as stated above.
B

. In Second Appea.l by the defendant, the learned single judge of the
High Court reversed the appellate decree, in a brief judgment stating that
the "reasons given for not believing the agreement by the learned (Appel-
late) Judge, are not cogent and convincing". The learned Judge observed
that it was common knowledge that at the time of an agreement, the entire G
consideration would not be paid. The fact that the vendor's signature was
not found un the revenue stamp was not relevant. The first appellate court
was wrong in thinking that plaintiffs name was found in the 1962 agree-
ment and was scored off. This was factually incorrect. On these grounds,
the learned single judge held that the lower appellate court erred in not D
accepting the genuineness of the agreement of 1962 set up by the defen-
dant. The agreement was true. Therefore, the defendant must succeed. The
Second Appeal was accordingly allowed and the suit was dismissed.

In this appeal by special leave, learned counsel for the appellant- E
plaintiff contended before us that the High Court did not frame any
substantial question of law and that it could not have gone into the
correctness of a finding of fact and that the finding regarding the genuine-
ness of the agreement of 1962 was binding in Second Appeal.

On the otherhand, learned counsel for the respondent-defendant F
contended that even assuming that the agreement was not true, the plaintiff
having purchased the property on 14.1.1966 came forward with a plea in
the plaint that she knew that the defendant trespassed into the site on
30.12.1967 but she did not issue any notice for removal of the two rooms
till 14.6.1974. She was the next door neighbour. Notice dated 14.6.74 was G
also belated and even then, she did not allege any forcible trespass by the
defendant, as now stated in the plaint. The suit was filed only on 14.2.1975.
The plaintiff should not have kept quiet when the construction was going
on if, as alleged in the plaint, she was conscious of the tresp·ass by the
defendant. It was contended that inasmuch as the plaintiff stood by ~hen H
908 SUPREME COURT REPORTS (1999) 1 S.C.R.
A the construction was being made bonajide by the defendant, this Court, in
exercise of its discretion under Article 136, which discretion is available
even /after grant of leave • should not interfere and the plaintiff should not
be granted possession coupled with a right to have the rooms removed.
" ·This Court has also power under Article 136 to mould the relief and grant
B compensation. In any event, this Court could invoke Article 142 of the
Constitution of India, in the interests of justice.

The points that arise for consideration in the appeal are: ..
(1) Whether the High Court could have interfered with the finding
C" of fact relating to the genuineness of the agreement of sale deed dated
10.2.1962 and that too without framing a substantial question of law?

· (2) Whether the discretionary power available to this Court at the
time of grant of special leave continues with the Court even after grant of
special leave and when the appeal is being heard on merits and whether,
D this Court could declare the law and yet not interfere or could mould the
relief? Or whether, once the law is declared, this Court is bound to grant
possession and the mandatory injunction?

(3) Whether it is necessary to invoke the powers of this Court under
E Article 142?
(4) To what relief?

Point 1:

F At the outset, it must be stated that the High Court erred in not
framing a substantial question of law as required by section 100 CPC. In
view of the Judgments of this Court in Kshitish Chandra Purkait v. Sa11tosh
Kumar Purkait & Others, (1997) 5 SCC 438 and Sheel Chand v. Prakash
Chand, (1998) 6 SCC 683 the High Court should have framed a substantial
question of law and then only disposed of the Second Appeal. Again it
G could not have interfered with pure finding of fact. We have earlier set out
the basis of the finding of the appeUate court in this behalf. The finding is
based upon a rejecti6n of the oral evidence adduced in the case. IJ is true
that one of the reasons given by the first appeUate Court namely that the ·l(

agreement of 1962 contained a reference to the plaintiffs name (who came
H into the picture only in 1966) is not factually correct and the High Court
lHERAKHATOON v. SLAMBIN MOHAMMAD [M. JAGANNADHARAO, J.) 909

was right in pointing out this error. But the finding of the first appellate A
Court is not based only on the said fact. The finding was based on the
rejection of the evidence of the attestor of the agreement and the evidence
of the defendant in relation to the said agreement. Other facts relied upon
are the long gap of 5 1/2 years between the date of the alleged agreement
of sale and the defendant's sale deed and that the agreement is written up
on a small piece of paper with a revenue stamp affixe!l thereon and not
B
'I
upon regular non- judicial ,stamp papers. These circumstances are all
relevant in considering the genuineness of the agreement. As long as there
is some material for the rejection of the document, the second appellate
Court ought not to have interfered with the abovesaid finding of fact. For
the above reasons, we are constrained to set aside the said finding of the c
High Court. Point 1 is decided accordingly.

Points 2 and 3:

These points relate to the plea of the defendant that on the facts of
this case this Court should not, in exercise of its discretion, interfere under
D
Article 136 even if this is a stage long after the grant of special leave. Point
also is whether it is necessary to invoke Article 142.

It will be noticed that the plaintiff purchased the land by sale deed
dated 14.1.1966 while the defendant's sale deed is dated 13.12.1967. The E
plaint says that the defendant forcibly trespassed into this piece of land on
30.12.1967 with the help of anti social elements and that the plaintiff
protested. That means that plaintiff was conscious of the trespass even on
30.12.1967. Though the plaintiff was the next door neighbour the fact
remains that the plaintiff did not seek to intervene immediately either by F
•.&,
issuing a notice or by filing a suit for permanent injunction with an
application for temporary injunction. On the otherhand, the plaintiff al-
lowed the defendant to construct the two rooms. In the cross-examination,
the plaintiff admitted as follows:

"I cannot tell the day pertaining to this encroachment, but the G
encroachment was committed during night hours. We did not tell
any body on the very next day about this encroachment. Thereafter
)f also we did not tell anybody....... We being government servants, we
did not lodge complaint with the police in this respect. It is true
that I am pot a government servant." H
910 SUPREME COURT REPORTS . (1999] 1 S.C.R.
A The evidence of plaintiff who was the immediate neighbour proceeds
on the basis that she knew about the trespass in December 1967 itself,
though she filed the suit in 1975. The explanation was that inasmuch as the
plaintiffs husband was a government servant, they did not make any
complaint.

B It is in the background of the above circumstances that we have to
consider' the plea of the respondent defendant based upon Article 136 of
the Constitution of India. We should not, in this connection, be understood
as deciding any question of estoppel for there is no plea of estoppel in the
written statement nor any argument in the Courts below. Our discussion is
C confined only to exercise of discretion under Article 136.

It is now well settled that though special leave is granted, the discre-
tionary power which vested in the Court at the stage of the special leave
petition continues to remain with the Court even at the stage when the
appeal comes up for hearing and when both sides are heard on merits in
D the appeal. This principle is applicable to all kinds of appeals admitted by
special leave under Article 136, irrespective of the nature of the subject
matter. It was so laid down by a Constitution Bench of five learned Judges
of this Court in Pritam Singh v. The State, (1950) SCR 453. In that case, it
was argued for the appellant that once special leave was granted and the
E matter was registered as an appeal, the case should be disposed of on
merits on all points and that the discretionary power available at the stage
of grant of special leave was not available when the appeal was being heard
on merits.

This Court rejected the said contention and referred to the following
F dicta of the Privy Council in Ibrahim v. Rex, AIR (1914) P.C. 615:

".......·. the Board has repeatedly treated applications for leave
to appeal and the hearing of criminal appeals as being upon the
same footing: Riel's Case (1885-10 A.C. 675 : 55 L.J. p.628); &
parte Deeming (1892] AC 422. The Board cannot give leave to
G
appeal where the grounds suggested could not sustain the appeal
itself; and conversely, it cannot allow an appeal on grounds that
would not have sufficed for the grant of permission to bring it."

This Court observed that the rule laid down by the Privy Council is based
H on sound principle and only those points could be urged at the final hearing
THERAKHATOONv. SLAMBJNMOHAMMAD [M.JAGANNADHARAO,J.) 911

of the appeal which were fit to be urged at the preliminary stage when A
leave to appeal was asked for and it would be illogical to adopt different
standards at two different stages of the same case. This Court observed (para
8) that, so far as Article 136 was concerned, it was to be noted firstly thl)l
it was very general and was not confined merely to criminal cases, and that
(see para 9), the wide discretionary power with which the Court was
concerned/was applicable to all types of cases. The power under Article
B
,. 136 according to this Court,

"is to be exercised spa1ingly and in exceptional cases only, and
as far as possible, a more or less uniform standard should be
adopted in granting special leave in the wide range of matters C
which can come up before it under this Article. By virtue of this
Article, we can grant special leave in civil cases, in criminal cases,
in income tax cases, in cases which come up before different kinds
of tribunals and in a variety of other cases."

This Court emphasised: D
"The only uniform standard which in our opinion can be laid
down in the circumstances is that Court should grant special leave
to appeal in those cases where special circumstances are shown to
exist."
E
This Court then concluded:

"Generally speaking, this Court will not grant special leave,
unless it is shown that exceptional and special circumstances exist,
that substantial and grave injustice has been done and that the case F
in question present features of sufficient gravity to warrant a review
of the decision appealed against."

The above principles were followed and reiterated by a three Judge Bench
in Hem Raj v. State of Ajmer, [1954] SCR 1133, holding that that even after
the appeal is admitted and special leave is granted, the appellant must show G
that exceptional and special circumstances exist, and that, if there is no
interference, substantial and grave injustice will result and that the case has
features of sufficient gravity to warrant a review of the decision appealed
against, on merits. Only then would this Court exercise its overriding
powers under Article 136. H
912 SUPREME COURT REPORTS [1999] 1 S.C.R.
A Mis Bengal Chemical & Phannaceutical Works Ltd. v. Their Workmen,
(1959) Suppl. 2 SCR 136 was an appeal by special leave against the
Judgment of the Industrial Tribunal. It was held that the power under
Article 136 was discretionary and though the said Article 136 was couched
in widest terms, it was necessary for this Court to exercise the discretionary
B jurisdiction only in cases where awards were passed in violation of prin-
ciples of natural justice, and substantial and grave injustice was caused to
parties or the case raised an important principle of industrial law requiring r
elucidation and final decision by this Court or disclosed such other excep-
tional or special circumstances. Subba Rao, J. (as he then was) gave two
important reasons for the said principle and they are set out m the
C following passage:

• "The limits to the exercise of the power under Article 136
cannot be made to depend upon the appellant obtaining special
leave of this Court, for two reasons, viz., (i) at that stage the Court
D may not be in full possession of all material circumstances to make
up its mind and (ii) the order is only an ex parte one made in the
absence of the respondent. .... It would be illogical to apply two
different standards at two different stages of the same case."

E We may in this connection also refer to Municipal Board, Pratapgarh
& Another v. Mahendra Singh Chawla & Others, (1982] 3 SCC 331, wherein
it was observed that in such cases, after declaring the correct legal position,
this Court might still say that it would not exercise discretion to decide the
case on merits and that it would decide on the basis of equitable considera-
F tions in the fact situation of the case and "mould the final order"

In view of the above decisions, even though we are now dealing with
the appeal after grant of special leave, we are not bound to go into merits
and even if we do so and declare the law or point out the error - still we
may not interfere if the justice of the case on facts does not require
G interference or if we feel that the relief could be moulded in a different
fashion. We have already, referred to the various circumstances of the case
which snow that the plaintiff, on her own admission, had knowledge of the
trespass in December 1967 and did not raise any objection to the construc-
tion of the two rooms though she was the adjacent neighbour. She gave
H notice only after 7 years in 1974 and she filed suit in 1975. These two rooms
~HERAKHATOONv. SLAMBINMOHAMMAD [M.JAGANNADHARAO,J.] 913

have been there for the last 30 years. In those circumstances, we declare A
the law by holding that the High Court while dealing with a Second Appeal
under Section 100 CPC erred in not framing a substantial question oHaw
and that it also erred in interfering with a pure question of fact relating to
the genuineness of the agreement. We declare that this was not permissible
in law. Even while so declaring, we hold that in the peculiar circumstances
B
referred to above, this is not a fit case for interference and that in exercise
..,, of our discretion under Article 136, -a discretion which continues with us
even after the grant of special leave, - the decree pa~sed by the High Court
dismissing the suit for possession need not be interfered with and the two
rooms need not be demolished. The plaintiff could be adequately compen-
sated by way of damages. Point 2 is decided accordingly. Point 3 regarding c
Article 142 need not therefore be decided.

Point 4:

We had adjourned the case to find out if the parties could agree in D
~ regard to the value of the land so that some equitable order could be
passed directing the respondent to pay for the land of the appellant under
°' his occupation. But, in view of the affidavit of the respondent dated
20.2.1999 circulated through the Court on 22.2.1999, it is clear that there
is no agreement in this behalf. According to the respondent, the present
E
value of the land is Rs. 275 per sq. ft. respondent says that he is still
carrying on as a rickshaw puller.

In the circumstances, we are of the view that the judgment of the
High Court setting aside the judgment of the lower appellate Court and
-<\ restoring the judgment of the Trial Court should be confirmed with a F
modification. We modify the decree of the High Court by directing that
the respondent- defendant pay for the value of the suit extent of land in
his possession and that the value should be as on 19.9.1987, the date on
which the impugned judgment in Second Appeal was allowed in favour of
the respondent-defendant. The said value has to be worked out by taking G
evidence. For this limited purpose we remit the matter to the Trial Court,
the Court of the 3rd Joint Judge, Junior Division, Aurangabad, State of
Maharashtra for deciding the value of the suit land as on 19.9.1987. Parties
are at liberty to adduce evidence in the Trial Court in this behalf. The value
as may be fixed by the Trial Court shall be paid by the respondent to the H
914 SUPREME COURT REPORTS [1999) 1 S.C.R.
A appellant within such time as may be fixed by the Trill.I Court. If such
amount is .not paid by the respondent-defendant, the plaintiff shall be
entitled to recover the said amount as if it is a money decree for the said
amount. The appeal is dismissed subject to the above modification. There
will be no order as to costs.
B v.s.s. Appeal dismissed.

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