LexTHERAKHATOON (D) BY LRS. versus SLAMBIN MOHAMMAD
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
THERAKHATOON (D) BY LRS. A v. SLAMBIN MOHAMMAD FEBRUARY 26, 1999 [S.B. MAJMUDAR AND M. JAGANNADHA RAO, JJ.] B "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 D .. on fact circumstances are not shown and the justice of the case does not 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 off act-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 off act 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 grante
Excerpt shown. Read the full judgment & AI analysis in Lexace.