Gauhati High Court
CRP/105/2024 on 27 May, 2025
GAHC010218952024
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
Principal Seat at Guwahati
CRP/105/2024
1. The State of Nagaland, represented by the
Secretary to the Government of Nagaland,
Department of Land and Revenue, Nagaland,
Kohima.
2. The Deputy Commissioner, Dimapur,
Nagaland.
3. The Revenue Officer, Dimapur,
Nagaland.
4. The Land Record Survey Officer, Dimapur,
Nagaland.
........Petitioners
-Versus-
1. Smti. Tohuli,
W/o - Late V. Atoshe Sumi,
Hovukhu Village, Niuland , Nagaland.
.......Respondent
2. Airport Authority of India, represented by the Deputy General Manager, Dimapur, Nagaland.
.......Proforma Respondent Page 1 of 59
- B E F O R E-
HON'BLE MR. JUSTICE ROBIN PHUKAN Advocate for the petitioners : Mr. K.N. Balgopal, Advocate General;
Ms. T. Khro, Addl. Advocate General;
Ms. M. Kechi, Addl. Advocate General.
Advocate for the respondents : Mr. A. Das;
Ms. P. Chetri.
Date of hearing : 27.02.2025
Date of judgment : 27.05.2025
JUDGMENT & ORDER (CAV)
Heard Mr. K.N. Balgopal, learned Advocate General, Nagaland, assisted by Ms. T. Khro, learned Additional Advocate General and Ms. M. Kechi, learned Additional Advocate General for the petitioners. Also heard Mr. A. Das, learned counsel for the respondent No. 1 and Ms. P. Chetri, learned counsel for the proforma respondent No. 2.
2. This revision petition, under Section 115 of the CPC, read with Article 227 of the Constitution of India, is directed against the order dated 29.09.2023, passed by the Principal District Judge, Dimapur, in Civil Appeal No. 25/2023.
Page 2 of 593. It is to be noted here that vide impugned order, dated 29.09.2023, the learned Principal District Judge, Dimapur („Appellate Court‟, for short) had dismissed the Civil Appeal No. 25/2023, and thereby, upheld the order, dated 22.11.2021, passed by the learned Civil Judge (Senior Division), Dimapur („Trial Court‟, for short) in I.A. (Civil) No. 314/2019, arising out of Civil Suit No. 22/2019, wherein the learned Trial Court had granted temporary injunction in favour of the respondent No. 1/plaintiff, in respect of the land under Patta No. 45, Dag No. 40/100 and 117 of Dimapur Mouza No. 3 by directing the parties to maintain „status quo' over the suit land, and not to change the nature, character and feature of the suit land or any part during the pendency of the suit.
4. The background facts, leading to filing of the present petition, are briefly stated as under: -
"The deceased husband of the respondent No. 1, Late V. Atoshe Sumi as plaintiff had instituted a civil suit, being Civil Suit No. 22/2019, against the petitioners herein, seeking following relief(s):-
(i) A decree for declaration of right and title in respect of the suit land measuring 33 bighas 2 kathas 13 lechas (44,856 square meters) covered by Patta No. 45, under Dag No. 40/100 and 117 of Mouza No. 3 Dimapur, situated at Diphupar village.
(ii) Perpetual injunction;
(iii) Cost;Page 3 of 59
(iv) Any other reliefs.
Along with the said civil suit, the respondent/plaintiff also filed an application, under Order 39 Rule 1 and 2 CPC, for granting temporary injunction.
The case of the respondent/plaintiff is that he is the beneficial, rightful owner and patta holder of a plot of land, measuring 33 bighas 2 kathas 13 lechas (44,856 square meters), situated at Diphupar village. In 1985, his father, namely, Late Viniho Sumi entered into possession of the land, by clearing the jungle. After development of the land, the same was initially used for agricultural purpose. Thereafter, other people also started living there and the father of the plaintiff also constructed houses thereon in a stretch and continued to use the vacant area for agricultural and horticultural purpose. Then considering the continuous physical occupation of the land by the respondent/plaintiff, the Additional Deputy Commissioner (ADC), Dimapur had issued temporary allotment of the land, vide order No. VLS-5/75-
D/111/10646-48, dated 27.10.1993 to the
respondent/plaintiff. Thereafter, the competent revenue
authority had deputed a Surveyor, under LRS Office, Dimapur, to conduct survey of the land, on an application preferred by the respondent/plaintiff, for regularization of the land. Accordingly, one Surveyor had surveyed the land and submitted his report on 09.07.1996, and in the said report, it is stated that the land of the plaintiff, under Dag No. 40 of Page 4 of 59 Diphupar village, falls outside the fencing of the acquired land of Airport Authority of India (AAI)/the proforma respondent No. 2 herein, and on the basis of the aforesaid report, dated 09.07.1996, taking into consideration the continuous occupation of the land and temporary allotment, dated 27.10.1993, the ADC, Dimapur had issued regularization order, No. VLS-25/90-D6444-47, dated 02.09.1996, in respect of the land of the plaintiff, measuring 9 bighas 4 kathas 3 lechas (13,150 square meters) with a direction to deposit premium against the land. The respondent/plaintiff had duly complied with the said direction by paying a premium of Rs. 6,547/- vide Treasury Challan No. 8, dated 05.12.2005, in favour of the Deputy Commissioner, Dimapur. Thereafter, the Deputy Commissioner, Dimapur, vide order No. VLS-31/76- D/Pt/2840-44, dated 23.05.2007, had issued jamabandi and/or patta in respect of the land, measuring 9 bighas 4 kathas 3 lechas (13,150 square meters) in the name of the plaintiff, which was duly recorded in the record of rights, vide Patta No. 45, under Dag No. 40/100, and the class of the land is defined as homestead land, under Mouza No. 3 Dimapur, Diphupar Village. The plaintiff had constructed katcha houses, thereon after regularization of the said land.
Thereafter, the Deputy Commissioner had also regularised the adjoining area of land, measuring 23 bighas 3 kathas 10 lechas, which was marshy land and utilized for panikheti, was recorded as khas land in the chitha record, Page 5 of 59 in favour of the respondent/plaintiff, vide order No. VLS/91- D/Pt.file/1502-05, dated 10.08.2009. Thereafter, the revenue authority, on 14.05.2010, rectified the jamanbandi/patta No. 45 of the plaintiff, by including the area, measuring 23 bighas 3 kathas 10 lechas of barren land at Diphupar village in the said patta, under Dag No. 117 and thus, total area of the respondent/plaintiff, inclusive of both homestead and barren land, comes to 33 bighas 2 kathas 13 lechas, and the said plot of land stands under Dimapur Mouza No. 3 and situated at Diphupar village and on the southern side of the said plot of land, there is a boundary fencing of Airport Authority of India (AAI)/the proforma respondent No. 2 herein.
It was the case of the respondent/plaintiff that AAI is disturbing the peaceful possession and enjoyment of his land, on a false pretext, although the land of the respondent/plaintiff falls outside the boundary fencing of AAI and at no point of time, the land of the plaintiff was acquired by the State Government. The Surveyor, under Land Revenue Survey Office (LRSO), Dimapur in 2007, had surveyed the land at Diphupar village, under Dag No. 40/100 and 117 of Mouza No. 3 and the survey report categorically stated that the land of the plaintiff does not fall within the land, earmarked for AAI and that the respondent/plaintiff and his family members have been enjoying peaceful possession of the land since 1985, after developing the same. The respondent/plaintiff, being disturbed in peaceful possession of the said plot of land, by Page 6 of 59 the petitioners, had preferred one civil suit, being Civil Suit No. 22/2019, and in the said suit, the respondent/plaintiff also filed one interlocutory application, being I.A. (Civil) No. 314/2019, praying for temporary injunction and after hearing learned Advocates of both the parties, the learned Trial Court was pleased to grant temporary injunction in favour of the respondent/plaintiff in respect of the land, under Dag Nos. 38 and 40 situated at Diphupar village, and directed them to maintain „status quo‟ over the suit land, from the date of passing of the order, till disposal of the main suit, with further direction not to change the nature, character or feature of the disputed land and also directed not to undertake construction on the suit land during the pendency of the suit, vide order dated 22.11.2021.
Thereafter, being aggrieved, the present petitioners had preferred one civil appeal, being Civil Appeal No. 25/2023, before the learned Appellate Court challenging the order dated 22.11.2021, passed by the learned Trial Court in I.A.(Civil) No. 314/2019, arising out of Civil Suit No. 22/2019. In the said Civil Appeal No. 25/2023, after hearing learned Advocates of both the parties, the learned Appellate Court had dismissed the appeal, vide impugned judgment and order dated 29.09.2023, and thereby affirmed the order, so passed by the learned Trial Court in respect of maintaining „status quo‟ over the suit land."
Page 7 of 595. Being highly aggrieved by the order of the learned Appellate Court, dated 29.09.2023, the petitioners/defendants have preferred this revision petition on the following grounds:
(i) That, the learned Appellate Court had arbitrarily and deliberately reiterated all the findings of the trial court and dismissed the appeal without giving any independent observation/finding.
(ii) That, the learned Appellate Court though totally agreed to the submission of the State that under Section 14 of the Nagaland Eviction of Persons in Unauthorised Occupation of Public Land Act, 1971 („Act of 1971‟, for short), there is a bar to suits or legal proceedings and that the learned trial Court acted contrary to the law and usurped the jurisdiction not vested in it by law, by granting temporary injunction in favour of the plaintiff in violation of the express provisions of the statutes.
But, the learned Appellate Court, came to a conclusion that the civil suit was instituted by the plaintiff/deceased husband of the respondent No. 1 herein, praying for a decree for declaration of right and title of the respondent/plaintiff in respect of his land and that the suit was instituted before any proceedings for eviction, under Sections 5 and 6 of the Act of 1971, could be initiated by the competent authority and thus, the bar to suits or legal proceedings as contemplated by Section 14 of the Act of 1971, will not operate against the respondent No. 1 herein and this finding is blatantly false, as on 17.05.2005, the respondent/plaintiff was served with Page 8 of 59 eviction order under the Act of 1971, for illegal occupation of public land.
(iii) That, the respondent/plaintiff No. 1 herein, could not show any documents of his right and title over the suit land for the reason that his allotment under Dag No. A/40 was already cancelled on 31.05.2005, by the Deputy Commissioner, Dimapur, which order had attained finality. Further, the Commissioner, Nagaland by order dated 30.11.2019, had declared the plaintiff and the transferees as encroachers, and even presuming that the plaintiff had got the right and title over the suit land, then it is only restricted to Dag No. A/40 and not to Dag Nos. 38 and 40, and as such, the plaintiff and the transferees encroached into Dag Nos. 38 and 40 without any title.
(iv) That, several show cause notices, under the Act of 1971 were served upon the plaintiff and the fact that his allotment under Dag No. A/40 was already cancelled on 31.05.2005, by the Deputy Commissioner, Dimapur and the said order attained finality, and thereafter, the Commissioner, Nagaland, vide order dated 30.11.2019, declared the respondent/plaintiff and 22 transferees to be in illegal possession of the land at Dag Nos. 38 and 40, which has been acquired for expansion of Dimapur Airport and these orders were not challenged by the respondent No. 1 herein or by her deceased husband, and as such, the same attained finality. Thereafter, in the month of December, 2020, the respondent/plaintiff (deceased husband Page 9 of 59 of the respondent No. 1) had filed a Civil Suit No. 22/2019, seeking relief of declaration of title over Dag No. 40/100 and Dag No. 117 and he suppressed the order, passed against him by the Commissioner on 30.11.2019, and also concealed the fact that his allotment in 1996, was cancelled in 2005 and therefore, entertaining of the civil suit and the grant of temporary injunction in favour of the deceased husband of the respondent No. 1, by impugned Order dated 22.11.2021 passed by the Civil Judge (Senior Division), Dimapur is without jurisdiction and non-est in the eye of law. But, despite, these facts being substantiated by materials available on record, the Appellate Court took a contrary view and came to the conclusion that though the plaintiff and the 22 transferees were declared as encroachers and the allotment issued to the plalintiff and the mutation and the pattas, flowing from the plaintiff‟s pattas issued to the transferees were cancelled, but the process of eviction as contemplated by Section 5 and 6 of the Act of 1971, were yet to be initiated against the plaintiff and the 22 transferees and as such, the bar to suits or legal proceedings as contemplated by Section 14 of the Act of 1971 will not operate against the plaintiff and such finding of the learned appellate court is perverse.
(v) That, the plaintiff/deceased husband of the respondent No. 1, basing on forged and fabricated documents, claimed an additional area of land of 23 bighas 3 kathas 10 lechas, which he claimed to have been regularised in favour of him vide Page 10 of 59 order No.VLS/91-D/Pt.file/1502-05, dated 10.08.2009 and rectified the Patta No. 45, under Dag No.117, on 14.05.2010. But, the Office do not have any record of the alleged order No. VLS/91-D/Pt.file/1502-05, dated 10.08.2009 and the issue No.1502-05, is fabricated and on 10.08.2009, serial Nos. 3711 to 3812, have been entered for different matters and on that day, nothing has been recorded about the land rectification order, in the name of the husband of the respondent No. 1, as seen from the Issue Register, and there is no Dag No. 40/100, 117 recorded in the survey map, maintained by the DC Office, Dimapur. Despite all these facts being supported by documents, the learned Appellate Court had dismissed the civil appeal filed by the petitioners/defendants herein.
(vi) That, Section 41(ha) of the Specific Relief Act, inhibits the grant of injunction with regard to infrastructure projects like Airport and on such count, the grant of temporary injunction in favour of the plaintiff is against the statute, and the said provision and also the law, as laid down in N.G. Projects Limited vs. Vinod Kumar Jain and Others, reported in (2022) 6 SCC 127, was totally ignored by the learned Appellate Court, and instead, it had held that the statutory bar as projected in N.G Projects Ltd. (supra) will not operate in the present case for the reason that the instant suit was instituted by the respondent/plaintiff praying for a decree for declaration of right and title in respect of his land and is not with regard to any construction of infrastructure project, and Page 11 of 59 such finding is completely perverse, since the land was acquired for infrastructure project, namely, the development and expansion of the Dimapur Airport. Further, the learned Appellate Court went on to hold that the learned Trial Court, after discussing the three golden principles of injunction went on to determine the fourth dimension, since the suit involves question of public interest/policy and it is a fit case for grant of injunction in favour of the plaintiff, and such findings of the learned Appellate Court are arbitrary and contrary to law.
(vii) That, the finding of the learned Appellate Court is that "It is the case of the appellants that the land in question is government acquired land, but there is no material on record to substantiate the claim"
and the further finding that "The learned Civil Judge while discussing the point for determination No. 4 with regard to fourth dimension and public interest/policy has observed that the question of acquisition of the suit land by the State appellants is yet to be adjudicated and went on to hold that the plea of the State appellant that it is for public interest that the suit land is required to be vacated cannot be accepted", and this finding is erroneous for the reason that the petitioners herein, have placed on record sufficient documents to establish the acquisition of the property in Dag Nos. 38 and 40 and also established the vesting of the property in the Government, Page 12 of 59 vide Notification dated 23.09.1992, published in the Nagaland Gazatte and as per Section 6(2) of the Nagaland Land (Requisition and Acquisition) Act, 1965, once the notice for requisition of land and premises is published in the Official Gazette, the land and premises, vest absolutely with the State Government and the plaintiff has not established his right and title over the suit land as his allotted land was already cancelled on 31.05.2005, and the burden of proving the title to the property is on the person claiming the title and not on the State petitioners.
(viii) That, the finding of the learned appellate court on the question of prima facie case, is erroneous as there is no valid patta issued by the Government nor the same could be issued without the approval of the Government and no such approval has been placed on record by the respondent/plaintiff and therefore, the necessity of trial does not arise, and such finding is erroneous and contrary to a decision of the Division Bench of this Court in case of State of Nagaland & Anr.
vs. Avio Naleo & Ors, reported in (2023) 1 GLT 634, wherein it has been specifically held that the Deputy Commissioner has to take the approval of the Government before issuing any patta, and there is not even an allegation in the entire pleadings to the fact that such permission has been granted for the simple reason that the Government did not approve this transaction, which is completely against the law, and despite the same, the learned Appellate Court concluded Page 13 of 59 that there is no any infirmity and/or illegality in the impugned order and held that the plaintiff has made out a „prima-facie‟ case.
(ix) That, the husband of the respondent No. 1, based his claim on a forged and fabricated documents claiming land under Dag No. 40/100 and Dag No. 117 at Diphupar village and there is no Dag No. 40/100, 117 recorded in the survey map maintained by the DC Office, Dimapur, and the husband of the respondent No. 1 could not establish his right and title over the suit land. Despite, the learned Appellate Court had reiterated the finding of the learned Trial Court.
(x) That, on the question of „balance of convenience‟, the learned Appellate Court, without giving his independent observation/finding, had arbitrarily and deliberately, reiterated the finding of the learned Trial Court and recorded a finding that balance of convenience is in favour of the plaintiff/defendant, the deceased husband of the respondent No. 1, herein.
(xi) That, on the question of „irreparable injury‟ also, the learned appellate court, without giving his independent observation/finding, had arbitrarily and deliberately, reiterated the finding of the learned Trial Court.
(xii) That, the learned Appellate Court had ignored the submission of the State appellants/petitioners‟ herein, that the land situated at Diphupar village, Ekranipathar village and Page 14 of 59 Ekaranigaon Village were acquired by the State Government from various land owners in phased manner and compensation for the land was paid between the year 1988 and 2008, and the said lands were acquired for extension of the existing Dimapur Airport and the same was leased by the State Government to the Airport Authority of India. But, the learned Appellate Court had ignored the same and arrived at an erroneous finding that physical possession of the suit land is with the encroachers on the basis of land pattas, issued by the competent authority, where structures have been erected and buildings have come up there and as such, it is a fit case for grant of temporary injunction.
(xiii) That, the learned Appellate Court had come to a whimsical finding that the Commissioner, under the Act of 1971, does not possess any original jurisdiction and therefore, the order dated 30.11.2019, passed by the Commissioner was not on the basis of appellate jurisdiction, but on the basis of his capacity as original jurisdiction, which he does not possess under the Act of 1971, and the aforesaid finding is perverse.
(xiv) That, the learned Appellate Court ignored the principle laid down by the Bombay High Court in Jai Bholenath Construction vs. The Chief Executive Officer & Ors., in W.P. No. 14156 of 2021, and the learned Appellate Court also ignored several of decisions of this Court as well as of the Apex Court and deliberately ignored all the settled principles of law, regarding grant of injunction to the Page 15 of 59 encroachers and without considering all the materials available on record, without expressing his independent observation, recorded concurrence with the finding of the learned Trial Court, and as such, the impugned order dated 29.09.2023, is liable to be interfered with.
(xv) That, the learned Appellate Court had failed to appreciate the fact that Dimapur Airport is the only airport in Nagaland and there is an urgent need for extension of the same and the construction of the same is put on hold due to litigation, as a result of which the public at large are affected as they are unable to access the service, and that the finding of the learned Appellate Court is erroneous, whimsical and perverse and it had ignored the principle of law laid down in the case of Avio Naleo & Ors.(supra), Naga United/Inavi Village & Ors. vs. State of Nagaland & Ors.
reported in 2011 SCC OnLine Gau 121 and in the case of State of Nagaland vs. Thilixu 'B', reported in 2014 (2) GLT 829. Therefore, it is contended to allow this revision petition.
6. Mr. Balgopal, learned Advocate General for the petitioners has reiterated the grounds mentioned in this revision petition. He submits that though the plaintiff/deceased husband of the respondent No. 1 claimed to have allotted the land, yet, he has not been allotted any land with permission of the Government and the Commissioner of the department has denied the same. The earlier allotment of land to him was cancelled and he was never granted Page 16 of 59 any patta and the Officer who had allegedly issued the patta to respondent No.1 had clarified that the signature appearing in the jamabandi is forged. Mr. Balgopal also submits that Section 41 (ha) of the Specific Relief Act prohibits granting of injunction against any infrastructure project, being undertaken in relation to Airport as provided in the Schedule in Clause 1(e) of the Specific Relief Act. It is the further submission of Mr. Balgopal that in the Civil Suit No. 22/2019, the respondent/plaintiff had never prayed for any consequential relief i.e. for declaration/confirmation of possession of the suit land, though it had made a substantive prayer for declaration of right, title and interest and without there being any prayer for possession, and as such, the suit is not maintainable in view of Section 34 of the Specific Relief Act. Mr. Balgopal further submits that the land belongs to the State Government and that public interest will always prevail over individual interest and that the plaintiff had not approached the Court with clean hands and as such, the case of the plaintiff/respondent, ought to have been thrown out at the very threshold. Mr. Balgopal also submits that the finding of the learned courts in respect of prima-facie case, balance of convenience and irreparable loss and also in respect of the fourth dimension, i.e. public interest is erroneous as on the date of granting injunction the respondent/plaintiff had no valid title over the suit land, and the learned Trial Court had erroneously granted injunction and also the learned Appellate Court had erroneously agreed upon the same by upholding the order of the learned Trial Court. Under such circumstances, Mr. Balgopal has contended to Page 17 of 59 allow this petition by setting aside the impugned judgment and orders.
7. Per contra, Mr. Das, learned counsel for the respondent No. 1 submits that this petition itself is not maintainable as the learned Appellate Court has no pecuniary jurisdiction to try a suit, the value of which is Rs. 10,00,00,000/- in view of the provisions of the Bengal, Agra and Assam Civil Courts Act, 1887. Mr. Das also submits that this petition under Section 115 of the CPC is not maintainable. Further, Mr. Das has pointed out that as per Chapter 5A Rule 1 of the Gauhati High Court Rules, affidavit has not been filed by the petitioners herein. Mr. Das further submits that the order of the learned Appellate Court is nullity and as such, it is not sustainable. Mr. Das also submits that the suit was filed prior to issuance of notice under the Act of 1971, and that the case of the plaintiff is based on genuine documents and he had not relied upon any forged document and the learned courts below had also discussed the three golden principles including the fourth dimension and found the same in favour of the plaintiff/respondent No. 1, and that any interference of this court is not warranted. It is the further submission of Mr. Das that Section 41(ha) of the Specific Relief Act is not attracted herein this case, and the learned Appellate Court and the learned Trial Court had dealt with each and all aspects of the matter and there is no perversity in the orders, and therefore, it is contended to dismiss this petition.
Page 18 of 598. Ms. Chetri, learned counsel for the proforma respondent No. 2 has also subscribed to the submission of Mr. Balgopal, learned Advocate General for the petitioners.
9. Having heard the submissions of learned Advocates of both sides, I have carefully gone through the petition and the documents placed on record, and also perused the impugned order dated 29.09.2023, passed by the learned first Appellate COURT, in Civil Appeal No. 25/2023, and the order, dated 21.11.2021, passed by the learned Trial Court, in I.A. (Civil) No. 314/2019, arising out of Civil Suit No. 22/2019.
The Issue of Jurisdiction:-
10. In the case in hand, Mr. A. Das, learned counsel for the respondent No. 1, had taken a categorical stand that the suit value, being Rs.10 crore, the learned Appellate Court had no jurisdiction to entertain the appeal and, on this count, the order of the learned Appellate Court is liable to set aside.
10.1. Per contra, Mr. Balgopal, the learned Advocate General, Nagaland, submits that the learned counsels for the respondent, for the first time raised objection regarding maintainability of the order passed in appeal by the learned Appellate Court, though the order was in their favour, coupled with the fact that throughout the proceedings in appeal they did not raise the issue of maintainability of the appeal, on the grounds of pecuniary jurisdiction. Mr. Balgopal further submits that the law is settled that in such cases, objection on question of jurisdiction etc. should have been taken at the court Page 19 of 59 of first instance and having kept quiet throughout the entire proceedings, before the learned Appellate Court, now they cannot turn around and challenge the order passed by the learned Appellate Court on the ground of want of pecuniary jurisdiction.
More so, in view of the fact the respondents/plaintiff had not suffered any prejudice, whatsoever. It is also the contention of Mr. Balgopal that the law, in this context, had already been settled in the case of Kiran Singh & Others Vs. Chaman Paswan & Others, reported in (1954) 1 Supreme Court Cases 710 and the said proposition of law, later on, was followed in the case of Om Prakash Agarwal Vs. Vishal Dayal Rajpoot and Another, reported in (2019) 14 Supreme Court Cases 526. Under the given facts and circumstances, Mr. Balgopal submits that the contention of the respondent No. 1, regarding maintainability of the appeal before the learned Appellate Court and this civil revision petition is not at all sustainable.
10.2. It is to be noted here that Section 21(2) CPC deals with objections to pecuniary jurisdiction. It provides that no objection as to the competence of a Court, with reference to the pecuniary limits of its jurisdiction, shall be allowed by an appellate or revisional Court unless such objection was taken:
(i) In the Court of first instance at earliest possible opportunity, and
(ii) In all cases, where issues are settled, at or before such settlement, and Page 20 of 59
(iii) Unless there has been a consequent failure of justice.
10.3. The use of word „and‟ in the section signifies that all three conditions must be fulfilled simultaneously. In the case in hand, and as submitted by Mr. Balgopal, the Advocate General for the petitioners that for the first time, the respondent No. 1 had objected to the maintainability of the order passed in appeal by the learned Appellate Court, however, remaining silent throughout the proceedings in appeal, while he got the earliest possible opportunity, and he kept quiet, and he also got a favourable order and now they cannot turn around and challenge the order passed by the learned Appellate Court on the ground of want of pecuniary jurisdiction. Besides, he could not show that they suffered any prejudice whatsoever, or that there was failure of justice.
10.4. It is true, the issue of jurisdiction can be raised at any stage of the proceedings and even in collateral proceedings also, as held by the Hon'ble Supreme Court in the case of Kiran Singh & Others (supra). Same proposition of law is laid down in the case of Dr. Jagmittar Sain Bhagat vs. Dir., Health Services, Haryana & Others, reported in AIR 2013 SC page 3060, wherein it has been held that the issue of jurisdiction can be raised at any stage and doctrine of waiver does not apply. In the case of Kamala & Others vs. K.T.Eshwara SA & Others, reported in AIR 2008 SC 3174, also the same principle is reiterated.
10.5. But, the question remains whether a party, who had appeared before the learned Appellate Court on receipt of notice in Page 21 of 59 the appeal being filed, and contested the appeal and also got an order in his favour, can raise the issue of jurisdiction before this Court in a revision petition. The answer is obvious, that a person, who entered appearance upon receipt of a notice from the court, he exposes himself to acceptance of jurisdiction of that court. And later on, he cannot make a somersault. The case rests on the simple and universally admitted principle that a litigant, who has voluntarily submitted himself to the jurisdiction of a court by appearing before it, cannot afterwards dispute its jurisdiction. Where such a litigant, though a defendant rather than a claimant, appears and pleads to the merits without contesting the jurisdiction, there is clearly a voluntary submission. The same is the case, where he does indeed contest the jurisdiction, but nevertheless proceeds further to plead to the merits, or agrees to a consent order dismissing the claims and cross-claims, or where he fails to appear in proceedings at first instance, but appeals on the merits.
10.6. Reference in this context can be made to some overseas decisions also. In the case of Golden Endurance Shipping SA v RMA Watanya SA [2016] EWHC 2110 at para. 28, Phillips J3 (MANU/UKCM/0064/2016), the England and Wales High Court (Commercial Court) has described the theoretical basis for such a submission as being that: "a party, who voluntarily appears or participates in proceedings is considered by the common law, to have accepted an offer from the opposing party, who commenced the proceedings to accept the jurisdiction and be bound by its judgment. The touchstone of submission on this basis is therefore Page 22 of 59 consent, although the question of whether consent has been given is to be judged objectively."
10.7. In the case of Williams & Glyn's Bank Plc. v. Astro Dinamico Compania Naviera S.A. [1984] 1 W.L.R. 438 (MANU/UKHL/22018/1984), the House of Lords described the test for implying such consent as being: "in order to establish a waiver, you must show that the party alleged to have waived his objection has taken some step which is only necessary or only useful if the objection has been actually waived, or if the objection has never been entertained at all."
10.8. Thus, it appears that the conduct of the parties, in fact, give rise to a submission to the jurisdiction. However, there remains the question of whether or not there has been a voluntary submission and the same requires wider investigation into the conduct of the parties.
10.9. In the case of Om Prakash Agarwal (supra), while dealing with the issue, Hon‟ble Supreme Court has held as under:-
‚57. The policy underlying Section 21 of Code of Civil Procedure is that when the case has been tried by a court on merits and the judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it has resulted in failure of justice. The provisions akin to Section 21 are also contained in Section
11 of the Suit Valuation Act, 1887 and Section 99 of the Code of Civil Procedure. This Court had the Page 23 of 59 occasion to consider the principle behind Section 21, Code of Civil Procedure and Section 11 of the Suit Valuation Act, 1887 in Kiran Singh v. Chaman Paswan [Kiran Singh v. Chaman Paswan, AIR 1954 SC 340]. In para 7 of the judgment following was laid down: (AIR p. 342) ‚7. ... The policy underlying Sections 21 and 99 of the Civil Procedure Code and Section 11 of the Suits Valuation Act is the same, namely, that when a case had been tried by a court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice, and the policy of the legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate court, unless there has been a prejudice on the merits. The contention of the appellants, therefore, that the decree and judgment of the District Court, Monghyr, should be treated as a nullity cannot be sustained under Section 11 of the Suits Valuation Act.‛ Thereafter, summing up the discussion, Hon‟ble Supreme Court has held as under:-
‚69. We thus hold that even when the Court of Additional District Judge was not competent to decide the small causes suit in question on the ground that the pecuniary jurisdiction is vested in the Court of Small Causes i.e. Civil Judge, Senior Division w.e.f. 7-12-2015, no Page 24 of 59 interference was called in the judgment of the Additional District Judge in the exercise of revisional jurisdiction by the High Court in view of the provisions of Section 21 of the Civil Procedure Code.‛ 10.10. In the case in hand, admittedly the respondent/plaintiff could not show that any prejudice has been caused to him, being the order was passed in his favour. It is well settled that unless there has been a prejudice on the merits, purely on technical grounds, the impugned judgment of the learned appellate court cannot be treated as nullity. Thus, drawing premises from the illuminating discourse herein above, it can safely be concluded that the impugned judgment of the learned Appellate Court in deciding the appeal in question cannot be treated as nullity and on this Court alone, the contentions raised by the respondent and the submissions of his counsel, failed to command an acceptance of this Court, and accordingly, the same stands repudiated.
The Three Golden Principles of Granting Injunction:
11. It is no more res-integra that in order to grant temporary injunction, the party applying for the same has to satisfy three golden principles. This aspect has elaborately been dealt with by Hon‟ble Supreme Court in the case of Dalpat Kumar vs. Prahlad Singh, reported in (1992) 1 SCC 719, while dealing with Order 39 Rule 1(C) CPC, Hon‟ble Supreme Court has held as under:Page 25 of 59
(iv) It is settled law that the grant of injunction is a discretionary relief. The exercise thereof is subject to the court satisfying that (1) there is a serious disputed question to be tried in the suit and that an act, on the facts before the court, there is probability of his being entitled to the relief asked for by the plaintiff/defendant;
(2) the court's interference is necessary to protect the party from the species of injury. In other words, irreparable injury or damage would ensue before the legal right would be established at trial; and (3) that the comparative hardship or mischief or inconvenience which is likely to occur from withholding the injunction will be greater than that would be likely to arise from granting it.
5. Therefore, the burden is on the plaintiff by evidence aliunde by affidavit or otherwise that there is ‚a prima facie case‛ in his favour which needs adjudication at the trial. The existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established, on evidence at the trial.
Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court Page 26 of 59 further has to satisfy that non-interference by the Court would result in ‚irreparable injury‛ to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The third condition also is that ‚the balance of convenience‛ must be in favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject matter should be maintained in status quo, an injunction would be issued. Thus the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit.
11.1. Again, in the case of Seema Arshad Zaheer vs. Municipal Corpn. of Greater Mumbai, reported in (2006) 5 SCC 282, same principles are reiterated as under: -
Page 27 of 59‚30. The discretion of the court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff:
(i) existence of a prima facie case as pleaded, necessitating protection of the plaintiff's rights by issue of a temporary injunction;
(ii) when the need for protection of the plaintiff's rights is compared with or weighed against the need for protection of the defendant's rights or likely infringement of the defendant's rights, the balance of convenience tilting in favour of the plaintiff; and
(iii) clear possibility of irreparable injury being caused to the plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff's conduct is free from blame and he approaches the court with clean hands.‛ Public Interest, the Fourth Dimension: -
11.3. It is also to be mentioned here that in the case of Mahadeo Savlaram Shelke and Ors. vs. Pune Municipal Corporation and Ors., reported in (1995) 3 SCC 33, Hon‟ble Supreme Court has held additionally that public interest is one of the material and relevant considerations in either exercising or refusing to grant ad interim injunction.Page 28 of 59
Finding of the Trial Court: -
12. It is to be noted here that while deciding the injunction application, being I.A. (Civil) No.314/2019, in the Civil Suit No. 22 of 2019, the learned Trial Court had formulated following points for determination: -
1. Whether or not prima facie case has been made out by the plaintiff/petitioner in his favour?
2. Whether or not Balance of Convenience favours the case of the plaintiff/petitioner?
3. Whether or not plaintiff/ petitioner is going to suffer irreparable injury?
4. The fourth dimension will also be determined since the suit involves question on public interest /policy.
12.1. Thereafter, the learned Trial Court, solely relying on the pleadings of the parties and the documents relied upon by the parties, and without going into the merits of the case, opined that the plaintiffs has succeeded in establishing „prima-facie‟ case in his favour and decided the point No.1, in favour of the plaintiff/the respondent No. 1 herein.
12.2. Thereafter, the learned Trial Court had held that - ‚from the pleadings as projected in the plaint by the respondent/plaintiff, it appears that the respondent/plaintiff is presently is in possession of the disputed suit land. It is also pleaded that the Page 29 of 59 plaintiff had been peaceful possession of the suit land since 1985. It is contended that the land of the plaintiff is a private land and at no point of time acquired by the government. And the document relied upon by the plaintiff to prove his title and ownership over the suit land, are patta No. 45 under Dag No. 40/100, 177 of Dimapur Mouza No.3 measuring 33 Bighas - 02 Kathas -13 Lechas (44,856 Sqm), the land premium payment and revenue receipt.‛ 12.3. It is also held that the claim of the respondent/plaintiff is denied in to-to by the defendant and it is the categorical contention of the defendants that the land in question is a government land which has been acquired, however, no material documents had been relied upon to substantiate their claim. The contention raised is that the patta in the possession of the respondent/plaintiff is obtained by unlawful means without following the procedure, and as such, the same are fabricated and forged. It is also held that these allegations are disputed question of facts and law and will require mature considerations at the time of trial. The court is, at this stage not to conduct mini trial, but to confine to the material placed before it and decide on the face of it, and it is a fit case to go for trial. And accordingly, it has been held that a prima-facie case has been made out by the respondent/plaintiff.
12.4. Thereafter, the learned Trial Court held that- ‚from the pleadings in the plaint and in the I.A. of the plaintiff, it appears that the plaintiff is in Page 30 of 59 possession of the suit land. It appears that the suit land is being occupied by him and his tenants, which implies that there are buildings and structures in the suit land. If we are to compare the mischief and inconveniences of the parties in the event of granting or not granting injunction to the parties, the scale of inconvenience leans more towards the side of the plaintiff, as the hardships the plaintiff will have to undergo is more apparent than the defendants. Suffice to say, since no development has taken place in the suit land from the end of the defendants as per materials placed on record, less inconvenience will be caused to the defendants if injunction as prayed for, is allowed.‛ Thereafter, the learned trial court had decided point No.2 in positive in favour of the respondent/plaintiff.
12.5. Thereafter, the learned Trial Court had decided point No.3 in favour of plaintiff observing that - ‚the present suit has been filed for a decree of declaration of right and title of the plaintiff in respect of a plot of land covered by patta No. 45 under Dag No. 40/100 and 117 of Mouza No.3-Dimapur, situated at Diphupar village, Dimapur, Nagaland. In a suit of this nature, keeping the subject matter of the suit intact is of prime importance.
Considering the facts and circumstances of the case in hand, there is every likelihood that if the defendants are not restrained, the present standing structures will be demolished, which ultimately will change the Page 31 of 59 nature of the property and also result in multiplicity of proceedings which will prejudice the plaintiff which cannot be compensated in terms of money.‛ 12.6. The learned Trial Court thereafter, in deciding the fourth point, as the suit involves the question on public interest/policy, and having discussed the materials placed on record, had held that - ‚even presuming the question of acquisition is not under dispute, it is seen that, the land in question is required for expansion of the existing Dimapur airport only. It is seen that the present existing airport is fully functional and operating on daily basis even now. It is not a case, where the structures had been built on the suit land and the construction work had been kept on hold/left unfinished because of litigation and the public as a result of which are affected and unable to access the service. It is seen that developmental work is yet to be initiated. It had also observed that ‚once permanent structures are set up on the suit land it will cause irreparable loss and injury to the respondent/plaintiff."
12.7. Thereafter, the learned Trial Court had held that the respondent/plaintiff has satisfied the three golden principles for granting temporary injunction in his favour. Thereafter, it had allowed the I.A. (Civil) No.314/2019, arising out of Civil suit No.22/2019, ordering the parties to maintain „status quo‟, till disposal of the suit and further directed that no party will change Page 32 of 59 the nature, character, or feature of the disputed land nor any party during pendency of suit shall raise any construction on the suit land.
Finding of the Appellate Court:-
13. The order dated 22.11.2021, in IA (Civil) No.314/2019, arising out of Civil Suit No. 22/2019, being challenged by the petitioner/defendant, before the learned Appellate Court, in Civil Appeal No.25 of 2023, and the learned Appellate Court had held as under: -
14. Prima facie case: - In respect of prima-facie case, the learned Appellate Court had held that the learned Trial Court, had first, discussed the meaning of „prima-facie‟ as held by the Hon'ble Supreme Court in Marin Burn Ltd. v. R.N. Banerjee, 1958-I LLJ 247; and in Gujurat Electricity Board, Gandhinagar vs. Maheshkumar & Co. Ahmedabad, 1995 (5) SCC 545.
14.1. The learned Appellate Court then proceeded to hold that - ‚the learned Trial Court, on the basis of the pleadings of the parties, observed that the plaintiff is presently in possession of the disputed suit land. The plaintiff has been in peaceful possession of the suit land since 1985 and that the same is a private land and at no point of time, was acquired by the Government. The plaintiff has in his possession the land with patta No. 45, under Dag No. 40/100, 117 of Dimapur Mouza No.3 Page 33 of 59 and measuring 33 B-02K-13Lechas (44,856 Sqm) together with the land premium payment and revenue receipt to show his title and ownership over the suit land.‛ 14.2. The learned Appellate Court also proceeded to hold that - ‚It is the case of the appellants that the land in question is government acquired land, but there is no material on record to substantiate the claim. It is contended that the patta in possession of the plaintiff was obtained by unlawful means, without following the procedure and are fabricated and forged. Considering the above, the learned trial court came to the conclusion that the allegations are disputed question of facts and law, which will require mature considerations at the time of trial. The court at this stage is not to conduct a mini trial, but to confine to the materials placed before it and decide on the face of it.‛ Thereafter, the learned Appellate Court had recorded its agreement to the conclusion arrived at by the learned trial court in respect of the prima-facie case.
15. Balance of Convenience:- In respect of balance of convenience, the learned Appellate Court had observed that the learned trial court first discussed and observed the meaning of balance of convenience' as held by the Courts, in the case of Orissa State Commercial Transport Corporation Ltd. vs. Satyanarayan Singh, (1974) 40 Cut LT 336; wherein it was held that -
Page 34 of 59"Balance of Convenience" means the comparative mischief or inconvenience to the parties. The inconvenience to the plaintiff, if temporary injunction is refused, would be balanced and compared with that to the defendant if it is granted. If the scale of inconvenience leans to the side of the plaintiff, then interlocutory injunction alone should be granted."
15.1. Then, it had discussed about the decision in Bikash Chandra Deb v. Vijaya Minerals Pvt Ltd, 2005 (1) CHN 582; wherein the Calcutta High Court observed as under: -
"Issue of balance of convenience, it is to be noted that the Court shall lean in favour of introduction of the concept of balance of convenience, but does not mean and imply that the balance would be on one side and not in favour of the other. There must be proper balance between the parties and the balance cannot be a one-sided affair."
15.2. Thereafter, it proceeded to hold that- "keeping the aforesaid principles in mind, the learned trial court went on to observe that a perusal of the record the plaintiff was in possession of the suit land. The suit land is being occupied by the plaintiff and his tenants, which implies that there are buildings and structures in the suit land. If we are to compare the mischief and inconveniences of the parties in the event of granting or not injunction to the parties, the scale of inconvenience leans more towards the side of the Page 35 of 59 plaintiff as hardships the plaintiff will have to undergo is more apparent than the defendants.‛ 15.3. Then, the learned Appellate Court proceeded to hold that - ‚thus, the learned Trial Court went on to hold that since no development has taken place in the suit land from the end of the appellants (petitioners herein), as per the materials placed on record, less inconvenience will be caused to the defendants vis-a-vis the plaintiff, if the injunction as prayed for is allowed in favour of the plaintiff and decided the point for determination No.2 in favour of the plaintiff.‛ 15.4. From the aforesaid discussion, the learned Appellate Court had held that- ‚the learned trial court had correctly applied the golden principles with regard to balance of convenience to the facts of the instant case and decided the point for determination No.2 in favour of the plaintiff (respondent herein) and that no infirmity and/or illegality to the conclusion arrived at by the learned trial court in deciding the point No.2, so as to take a view contrary to that of the learned trial court.‛ Accordingly, it had recorded concurrence with the finding of the trial court.
16. Irreparable injury: In respect of irreparable injury, at point No.3, the learned Appellate Court had discussed a decision Orrissa High Court in Orissa State Commercial Transport Page 36 of 59 Corporation Ltd. vs. Satyanarayan Singh, reported in (1974) 40 Cut LT 336; wherein it has been held as under: -
"Irreparable injury means such injury which cannot be adequately remedied by damages. The remedy by damages would be inadequate if the compensation ultimately payable to the plaintiff in case of success in the suit would not place him in the position in which he was before injunction was refused."
16.1. Then the learned Appellate Court had held that - "basing on the above observation, the learned trial court had observed that the present suit pertains to a prayer for injunction against an eviction order issued by the Deputy Commissioner, Dimapur. From the pleadings, as projected in the plaint, by the plaintiff/respondent in the suit, the respondents are in actual physical possession of the suit land. The plaintiff/respondent and their families are occupying the suit land. From the aforesaid observation, the respondent need to be protected from being dispossessed. In the instant case, if the injunction as prayed for is not allowed, the respondent will suffer irreparable loss and injury which cannot be compensated in terms of money and decided the point for determination No.3 in affirmative in favour of the respondent."
16.2. Thereafter, the learned Appellate Court proceeded to observe that it is in total agreement to the above view arrived at by the learned Trial Court and thereby deciding the point for determination No.3 in favour of the plaintiff.
Page 37 of 5916.3. The learned Appellate Court also observed that there is every likelihood that if the appellants/petitioners herein are not restrained by way of injunction, the present standing structures on the suit land will be demolished, which ultimately will change the nature of the property and also result in multiplicity of proceedings which will cause prejudice to the plaintiff/respondent herein, which cannot be compensated in terms of money.
16.4. The learned appellate court had also discussed following precedents of the Hon'ble Supreme Court and of the High Courts which were relied upon by the appellants/petitioners hrein to buttress their arguments:
(i) In Jai Bholenath Construction vs. The Chief Executive Officer & Ors, 923 WP No.14156 of 2021; the Aurangabad Bench of the Bombay High Court in its decision, dated 30.03.2022, at Para 9 reiterated the view as expressed in N.G. Projects Ltd. (supra) by holding that -
"26. A word of caution ought to be mentioned herein that any contract of public service should not be interfered with lightly and in any case, there should not be any interim order derailing the entire process of the services meant for larger public good."
16.5. Then the learned Appellate Court held that - ‚the instant case is not with regard to contract, but for right, and title of the suit land. Whereas, the appellants submits Page 38 of 59 that the land has been acquired for expansion of the Dimapur Airport, but it is seen that the plaintiff and the transferees are in physical possession of the suit land on the basis of valid land patta, issued by competent authority. As such, the AAI would also first like to clear the doubts with regard to the title before starting any developmental work.‛ 16.6. Thereafter, the learned Appellate Court had discussed the decision of this Court in State of Nagaland & Anr vs. Avio Naleo & Ors, reported in (2023) 1 GLT 634; wherein it was held at Para 43 that -
"(iv) The directions passed in the order dated 06.12.2005, by the Deputy Commissioner thereby allowing the respondent No.3 to enjoy his rights over the disputed land on the basis of long standing and continued occupation over the disputed land, would merely be a permission being Commissioner to remain in occupation of the land granted by the Deputy Commissioner Boatang pending allotment/settlement made in favour of the respondent No.3. In that view of the matter, the respondent No.3 would have no rights as a proprietor, land holder, settlement holder over the land measuring 40 Bighas, 0 Katha, 0 Lecha which was covered by Dag No.36 of Patta No.19. The rights of the respondent No.3 over the said land to continue in possession would be subject to revocation of such permission by the Deputy Commissioner or by the State Government in accordance with law."Page 39 of 59
16.7. Then, the learned Appellate Court had observed that- ‚with regard to the above, there are also various Notifications and Office Memorandums banning the allotment of Government lands to private individuals without prior and specific approval of the Government. Further, the temporary allotment is also subject to approval of the Government.‛ 16.8. Then, the learned Appellate Court had discussed the decision of this Court in Naga United/Inavi Village & Ors v. State of Nagaland & Ors, reported in 2011 SCC OnLine Gau 121; wherein it was held that -
"26. Whichever way we look at the problem, there is no doubt that the Villagers are rank encroachers in Intangki Wild Life Sanctuary and Intangki National Park and the State of Nagaland is fully entitled to evict them therefrom and to ensure that they do not continue with their encroachment in the Intangki Wild Life Sanctuary or the Intangki National Park.
33. .......However, if they continue to remain in occupation, then they will have to pay Rs. 5 lakhs per hectare per month to the State of Nagaland."
16.9. The learned Appellate Court then observed that - ‚there is no dispute to the above proposition of law. Once a person is shown and declared to be an encroacher, the state can initiate the process of eviction against him.
Page 40 of 59However, in the instant case, the process of eviction as contemplated by Section 5 and 6 of the Act, is yet to be initiated against the plaintiff and the transferee.‛ 16.10. The learned Appellate Court then discussed a decision of this court in State of Nagaland v. Thilixu 'B', reported in 2014 (2) GLT 829; wherein it was held that-
"11. Subsequently, the fourth dimension of public interest has been found to be a relevant consideration while deciding claim of injunction in appropriate cases. Obviously, the claimants of injunction here are opposing public Interest. The Government purportedly has been protecting Rangapahar Wildlife Sanctuary from encroachers. Whether the plaintiffs are encroachers or not would be decided in course of trial but undoubtedly the question of public interest appears relevant in the present case. The learned trial court has not considered even the said aspect of the matter. The one-page judgment, granting injunction, against the Government and that too against purported protection of Wild Life Sanctuary without there being necessary ingredients referred to above cannot be in any way be upheld. The impugned order dated 24.04.2012 lacks necessary ingredients for being a judgment at all. The learned trial court not having framed the point for determination in such an important issue involving public interest and thereafter not having objectively decided the same, the impugned order has been vitiated. On totality of Page 41 of 59 circumstances, the impugned order dated 24.04.2012 is liable to be rejected."
17. That, with regard to the Fourth Dimension i.e. Public Interest/Policy, the learned Appellate Court observed "The learned Trial Court had observed that - ‚perusal of the impugned order dated 22.11.2021, shows that the learned Trial Court had formulated the point for determination No.4 to consider the fourth dimension as the suit, that involves question on public interest/policy and went on to hold that the question of acquisition of the suit land by the state appellants is yet to be adjudicated and as such, the plea of the state appellants that it is for public interest that the suit land is required to be vacated, cannot be accepted.‛
18. Thereafter, the learned Appellate Court had arrived at a finding that - ‚in view of the above discussion and the findings arrived at and also considering the matter in its entirety, the instant appeal fails and the impugned order dated 22.11.2021, passed by the learned Trial Court, in I.A. (Civil) No.314/2019 arising from Civil Suit No.22/2019, is hereby upheld.‛ Consideration of Submissions of the Parties: -
19. While the submissions of learned Advocates for both the parties are examined in the light of given facts and circumstances on the record, and in the light of legal framework and the Page 42 of 59 precedents, presently occupying the field, I find substance in the submission of Mr. Balgopal, learned Advocate General, Nagaland who had contended that the learned Appellate Court had discussed nothing in its order independently; rather, it had only recorded its concurrence with the finding of the learned Trial Court. There is also substance in his submission that the finding so recorded by the learned Appellate Court, as well as by the Trial Court, in respect of the three golden principles in granting temporary injunction, is based on erroneous interpretation of law as well as erroneous application of the same to the facts herein this case. It is being pointed out by Mr. Balgopal that there is a statutory bar under Section 41(ha) of the Specific Relief Act, against granting of injunction in respect of infrastructure projects as in view of the inclusion of infrastructure project like Airports in the Schedule in Clause 1(e) of the said Act. This proposition, according to Mr. Balgopal, stands fortified from the decision of the Hon'ble Supreme Court in N.J. Projects Ltd. (supra). It is also being contended by Mr. Balgopal that despite the injunctions being granted by the learned Trial Court giving the public interest a complete go bye, and even went to the extent of giving a finding that the defendant State, in the suit, should first establish that they have acquired the land for acquisition and even came to the conclusion that these trespassers have valid title, also appears to be palpably wrong and perverse. Further, Mr. Balgopal has contended that the trespassers had relied upon a bunch of fabricated documents to establish their titles and even these documents clearly show that they do not pertain to the Airport land and on the Page 43 of 59 strength of the said documents, they had obtained injunction order restraining the Government from evicting them and said orders were confirmed by the Appellate Court and this finding appears to be wrong and erroneous assumption of fact which caused travesty of justice.
19.1. Section 41 (ha) of the Specific Relief Act inhibits the grant of injunction with regard to infrastructure projects like Airport, being enumerated in the Schedule of the said Act. This section was introduced by an amendment in the year 2018. And this amendment was considered by Hon‟ble Supreme Court in the case of N.G Projects Limited (supra). In Para 19 to para 21 and para 26 of the said judgment, Hon‟ble Supreme Court had observed as under:
"19. The Specific Relief Act, 1963 was amended by Central Act 18 of 2018 when clause (ha) was inserted in Section 41 of the said Act to say:
Injunction cannot be granted in terms of section:
"41 (ha) if it would impede or delay the progress or completion of any infrastructure project or interfere with the continued provision of relevant facilities related thereto or services being the subject matter of such project."
20. Such amendment was in pursuance of the report submitted on 20th June 2016 of the Expert Committee. The report is as under:-
Page 44 of 59"The Expert Committee set on examining Specific Relief Act, 1963 submits its Report to Union Law & Justice Minister Recommends modifications for ensuring ease of doing business The Expert Committee set on examining the Specific Relief Act, 1963 today Submitted its Report to Union Law & Justice Minister Shri D.V. Sadananda Gowda here in New Delhi. In its report the committee has recommended modifications in the Specific Relief Act, 1963 for ensuring the ease of doing business.
In the context of tremendous developments which have taken place since 1963 and the present changed scenario involving contract- based infrastructure developments, public private partnerships and other public projects, involving huge investments; and changes required in the present scheme of the Act so that Specific performance is granted as a general rule and grant of compensation or damages for non-performance remains as an exception, the committee decided i. To change the approach, from damages being the rule and Specific performance being the exception, to Specific performance being the rule, and damages being the alternate remedy.
ii. To provide guidelines for reducing the discretion granted to Courts and tribunals while granting performance and injunctive Reliefs.
iii. To introduce provisions for rights of third parties (other than for Government contracts).Page 45 of 59
iv. To consider addressing unconscionable contracts, unfair contracts, reciprocity in contracts etc., and implied terms.
The committee observed that there is a need to classify diverse public utility Contracts as a distinct class recognising the inherent public interest/importance to be addressed in the Act. Any public work must progress without interruption. This requires consideration whether a court's intervention in public works should be minimal. Smooth functioning of public works projects can be effectively managed through a monitoring system and regulatory mechanism. The role of courts in this exercise is to interfere to the minimum extent so that public works projects will not be impeded or stalled."
21. Since the construction of the road is an infrastructure project and keeping in view the intent of the legislature that infrastructure projects should not be stayed, the High Court would have been well advised to hold its hand to stay the construction of the infrastructure project. Such provision should be kept in view even by the Writ Court while exercising its jurisdiction under Article 226 of the Constitution of India."
19.2. Thereafter, in paragraph No. 26, Hon‟ble Supreme Court had held as under:-
"26. A word of caution ought to be mentioned herein that any contract of public service should not be interfered with lightly and in any case, there should not be any interim order Page 46 of 59 derailing the entire process of the services meant for larger public good. The grant of interim injunction by the learned Single Bench of the High Court has helped no-one except a contractor who lost a contract bid and has only caused loss to the State with no corresponding gain to anyone."
19.3. But, from a perusal of the order of the learned Trial Court dated 22.11.2021, indicates that this amendment as well as the proposition of law, so laid down in the case of N.G. Projects Ltd. (supra) was totally ignored by the learned Trial Court. Though a discussion was directed to that effect, no finding in this regard was recorded. Instead, it had opted to grant injunction despite existence of statutory prohibition.
19.4. Further, from a cursory perusal of the impugned order of the learned Appellate Court goes to show that it had observed that the statutory bar, as projected by the appellant, will not operate in the instant case, as the suit was preferred by the respondents for a decree for declaring the right, title and interest, not for any infrastructure project. And referring the order of the trial court, the learned Appellate Court had held that the learned trial court, while discussing the point for determination No.4, with regard to fourth dimension and public interest/policy, had observed that the question of acquisition of the suit land by the state appellants is yet to be adjudicated and also went on to hold that the plea of the state appellant that it is for public interest that the suit land is required to be vacated, cannot be accepted.
Page 47 of 5919.5. These findings, so recorded by the learned Trial Court as well as the Appellate Court, appears to be fallacious in as much as, it is the categorical contention of the petitioners herein, that too from the very beginning, that the suit land belongs to the Government of Nagaland. It is stated that the petitioners herein had placed on record sufficient documents to establish the acquisition of the property in Dag Nos. 38 and 40 and has also established the vesting of the property in the Government, vide Notification, dated 23.09.1992, published in the Nagaland Gazette and as per Section 6(2) of the Nagaland Land (Requisition and Acquisition) Act, 1965, once notice for requisition of land and premises is published in the Official Gazette, the land and premises vest absolutely with the State Government. This fact/contention of the petitioners is not controverted by the respondent No. 1 herein,
20. It is also categorically stated by the petitioners herein that the allotment of land under Dag No. A/40 was already cancelled on 31.05.2005, by the Deputy Commissioner, Dimapur, and the same order, having not been challenged before any forum, had attained finality. And, further it appears that the Commissioner, Nagaland by order dated 30.11.2019, had declared the respondent/ plaintiff and the transferees as encroachers. This fact is also not controverted by the respondent No. 1 herein.
20.1. And even if it is assumed that the plaintiff/respondent No. 1 herein, had got the right and title over the suit land then it is only restricted to Dag No. A/40 and not to Dag Nos. 38 and 40, and as such, the plaintiff/respondent No. 1 and the transferees encroached Page 48 of 59 into Dag Nos. 38 and 40 without any title. It also appears that several show cause notices, under the Act of 1971, were served upon the respondent/plaintiff. Further, it appears that the order of the Commissioner, Nagaland, dated 30.11.2019, declaring the plaintiff and 22 transferees to be in illegal possession of the land at Dag Nos. 38 and 40, which has been acquired for expansion of Dimapur Airport, and these orders were not challenged by the respondent No. 1 herein or by her deceased husband, and as such, the same attained finality. There is no dispute in this regard.
20.2. Further, the documents placed on record goes to show that in December, 2020, the plaintiff/deceased husband of the respondent No. 1, had filed the Civil Suit No. 22/2019, seeking relief of declaration of title of Dag No. 40/100 and Dag No. 117 and he suppressed the order passed against him by the Commissioner on 31.11.2019, and also concealed the fact that his allotment in the year 1996 was cancelled in 2005 and therefore, the entertaining of the civil suit and the grant of temporary injunction in favour of the deceased husband of the respondent No. 1 vide impugned Order dated 22.11.2021, by the learned Trial Court is without jurisdiction and non-est in the eye of law.
20.3. It is well settled in catena of decisions of Hon‟ble Supreme Court that a person who has not approached the court with clean hand, and if his case is based upon falsehood and on this count alone, the suit is liable to be dismissed at any stage of the litigation. Mr. Balgopal, the learned Advocate General, Nagaland has rightly pointed this out in his argument by referring a decision of Hon‟ble Page 49 of 59 Supreme Court in S.P. Chengalvaraya Naidu (supra). In the said case, Hon‟ble Supreme Court in para-No.5 has observed as under: -
‚5. -----------
The principle of ‚finality of litigation‛ cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-
evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.‛ 20.4. Reference in this context can also be made to a decision of Hon‟ble Supreme Court in M.C.D. vs. State of Delhi, reported in (2005) 4 SCC 605, where it has been held that a person who has not approached the court in clean hand and his case is based upon falsehood and on this count alone, the suit is liable to be dismissed at any stage of the litigation.
20.5. The respondent No.1/plaintiff, had suppressed the factum of cancellation of his patta, while filing the Civil Suit No. 22/2019.Page 50 of 59
Therefore, to the considered opinion of this Court, the respondent No. 1 is not entitled to get injunction, being the same an equitable relief.
20.6. It is the categorical contention of the petitioners that the Deputy Commissioner had no power to review, and the same cannot be done without permission of the Government. Besides, without approval of the government, Deputy Commissioner cannot issue any patta of the land and there are Notification to that effect issued by the government which are being upheld by a Division Bench of this Court in the case of Avio Naleo and Others (supra).
20.7. In spite of these facts, being substantiated by materials available on record, the learned Appellate Court took a contrary view and came to the conclusion that though the plaintiff and the 22 transferees were declared as encroachers and the allotment issued to the plalintiff and the mutation and the pattas flowing from the plaintiff‟s pattas issued to the transferees were cancelled, but the process of eviction as contemplated by Section 5 and 6 of the Act of 1971, were yet to be initiated against the plaintiff and the 22 transferees and as such, the bar to suits or legal proceedings as contemplated by Section 14 of the Act of 1971 will not operate against the plaintiff. This finding of the learned Appellate Court, thus, appears to be perverse and liable to be interfered with.
20.8. Though the plaintiff/respondent had claimed that he is the rightful owner and possessor of the respective plots of land, under Page 51 of 59 Dag No. 38 and 40/100, situated at Diphupar area, and he had been enjoying the possession of the same by mutation of his name in the land records maintained by the Office of the Deputy Commissioner, Dimapur, who had issued land pattas in respect of the, said piece of land, yet, it appears that a report regarding the genuineness of the jamabandi with patta No. 45, Dag No. 40/100 of Block Diphupar was called for from the officer concerned, who vide his letter, dated 10.01.2020, clarified that jamabandi, bearing patta No. 45, Dag No. 40/100, Block Diphupar, purportedly signed by him, is not of his signature and that he never signed such jamabandi.
20.9. Further, it appears that though the respondent/plaintiff had claimed that a plot of land measuring 23 bighas 3 kathas 10 lechas, which he claimed to have been regularised in favour of him vide order No.VLS/91-D/Pt.file/1502-05, dated 10.08.2009 and rectified into Patta No. 45, under Dag No.117 on 14.05.2010, yet it is being claimed that the office do not have any record of the alleged order No. VLS/91-D/Pt.file/1502-05, dated 10.08.2009 and the issue No.1502-05 is fabricated and on 10.08.2009, serial Nos. 3711 to 3812 have been entered for different matters and on that day, nothing has been recorded about the land rectification order in the name of the husband of the respondent No. 1, as seen from the Issue Register, and there is no Dag No. 40/100, 117 recorded in the survey map maintained by the DC Office, Dimapur. All these facts supported by documents, militate against the case of the plaintiff/respondent and the same eschewed consideration of the Page 52 of 59 learned Trial Court as well as of the learned Appellate Court, while deciding the prima-facie case in favour of the respondent No. 1.
20.10. Further, report of the surveyor, after spot verification, dated 09.12.2019 indicates that total area, occupied under Dag No. 38, an area of 48B -00K-09L and under Dag No. 40 an area of 06B- 00K 11L all total 15.9 Acres were encroached.
21. As stated herein above, the Civil Suit No. 22/2019, was instituted by the late husband of the respondent/plaintiff against the petitioners herein, seeking following relief(s): -
(i) A decree for declaration of right and title in respect of the suit land measuring 33 bighas 2 kathas 13 lechas (44856 square meters) covered by Patta No. 45, under Dag No. 40/100 and 117 of Mouza No. 3 Dimapur, situated at Diphupar village.
(ii) Perpetual injunction;
(iii) Cost;
(iv) Any other reliefs 21.1. Thus, it appears from the above discussion that though the respondent/plaintiff had prayed for substantive relief of declaration of right and title over the suit land, yet, nowhere it has prayed for consequential relief of confirmation of possession over the suit land.
A suit for declaration of right, title and interest, where possession is not sought for, is hit by Section 34 of the Specific Relief Act and is thus not maintainable. (See- Ram Saran vs. Ganga Devi Page 53 of 59 reported in (1973) 2 SCC 73 and Vinay Krishna vs. Keshab Chandra reported in 1993 Supp (3) SC 129). But, this aspect also eschewed consideration of the learned Trial Court as well as of the Appellate Court.
21.2. Under the given facts and circumstances, the finding of prima-facie case, in favour of the respondents, by the learned Trial Court as well as endorsement of the same by the learned Appellate Court fails to withstand the legal scrutiny. When a trespasser is in illegal possession of a government land, acquired for the purpose of extension of Dimapur Airport, the balance of convenience, being found in the favour of the trespasser by the learned Trial Court, and also by the learned Appellate Court appears to be illegal and arbitrary. The third golden principle, i.e. irreparable loss also cannot be found in favour of a trespasser.
21.3. Since the land in question has been acquired for extension of the Dimapur Airport, considerable public interest is involved therein as it is the categorical contention of the petitioners that existing short runway fails to meet the requirement for landing of a bigger aircraft and it becomes very difficult and risky as there is risk of accident. Thus, the fourth requirement is also not in favour of the respondent No. 1.
22. It is also well settled that in a suit for declaration of title, the burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration. Any weakness in the case, set up by the defendants, cannot be a ground to grant relief to the plaintiff. Reference in this context can be made to a decision of Page 54 of 59 Hon‟ble Supreme Court in Union of India v. Vasavi Coop. Housing Society Ltd., reported in (2014) 2 SCC 269, wherein it has been held as under: -
‚19. The legal position, therefore, is clear that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. We are of the view that even if the title set up by the defendants is found against (sic them), in the absence of establishment of the plaintiff's own title, the plaintiff must be non-suited.‛ 22.1. In the case in hand, the learned courts had shifted the burden to the petitioners herein, who were the defendants, in the Civil Suit No. 22 of 2019. This is against the established norms and principles of evidence and as such, the observation and finding of the learned Courts below, cannot be allowed to get sanctified by the order of this Court.
23. Thus, to recapitulate, on the following grounds, the impugned order of the learned Appellate Court and the impugned order of the learned Trial Court failed to withstand the legal scrutiny: -
(i) The respondent/plaintiff in the Civil Suit No. 22 of 2019, had admittedly not prayed for any consequential relief of possession of the suit land along with substantive prayer and in view of the proviso to Section 34 of the Specific Page 55 of 59 Relief Act, prayer for a mere declaratory decree is not maintainable;
(ii) The land in question, being acquired for extension of Dimapur Airport and in view of Section 41 (ha) and Schedule of the Specific Relief Act, extension of Airport being an infrastructure project, injunction cannot be granted.
(iii) The documents, based on which 23 bighas, 3 kathas, 10 lechas of land which are being claimed as regularized in favour of the respondent No. 1, appears to be fabricated as issue No. 1502-05, dated 10.08.2009, at serial No. 3711 and 3812, which were entered in the Issue Register, pertains to different matter and on that day, no land rectification order found to have been made in favour of the husband of the respondent No. 1.
(iv) There is no Dag No. 40/100 and 117 recorded in the Survey Map maintained in the Office of the Deputy Commissioner, Dimapur, though the respondent No. 1/plaintiff claimed the said Dag No. 40/100 and 117 being issued in favour of her late husband.
(v) Besides, the three golden principles, including the fourth dimension, were arbitrarily decided in favour of the respondent No. 1 herein ignoring the settled principles of law and therefore, the same is arbitrary and illegal.Page 56 of 59
(vi) The land patta, under Dag No. A/40, was cancelled on 31st May 2005, by the Deputy Commissioner in the year 2005, after show cause notice, under the Nagaland Eviction of Person in Unauthorized Occupation of Public Land Act, 1971 and the said order dated 31.05.2005, had already attained finality and on such count, possession of the suit land by the respondents on the date of filing the suit, was illegal and their status becomes trespasser, as the respondents had no valid title on that day, and equitable relief, like injunction, cannot be granted in favour of a trespasser.
(vii) There is suppression of material facts as the land patta, under Dag No. A/40, was cancelled on 31st May, 2005, by the Deputy Commissioner in the year 2005, after show cause notice, under the Nagaland Eviction of Person in Unauthorized Occupation of Public Land Act, 1971 was issued to the respondent. Thus, he has not approached the court in clean hand and his case is based upon falsehood and on this count alone, the case of the respondent is liable to be dismissed at any stage of the litigation.
(viii) The burden of proving the title to the property is always on the person claiming the title and not on the State petitioners and the finding of the learned Courts below in this regard is illegal and arbitrary.Page 57 of 59
24. In the result, and for the reasons discussed herein above, I find sufficient merit in this petition and accordingly, the same stands allowed. The impugned order dated 29.09.2023, passed by the Principal District Judge, Dimapur, in Civil Appeal No. 25/2023, vide which the learned Principal District Judge, Dimapur had upheld the order dated 22.11.2021, passed by the learned Civil Judge (Senior Division), Dimapur in I.A. (Civil) No. 314/2019, arising out of Civil Suit No. 22/2019, thereby directing the parties to maintain status quo of the suit land and not to change the nature, character and feature of the disputed land or any part during the pendency of the suit, stands set aside and quashed. Consequently, the order dated 22.11.2021, passed by the learned Civil Judge (Senior Division), Dimapur, in I.A.(Civil) No. 314/2019, arising out of Civil Suit No. 22/2019, also stands set aside and quashed.
25. It is, however, true that this civil revision petition is not supported by any affidavit as required under Chapter 5A Rule-1 of the Gauhati High Court Rules. Mr. Das, the learned counsel for the respondent No.1, has rightly pointed this out. But the petition is supported by a certificate. Moreover, this is a ground, too technical, to deny the relief being sought for to the petitioners.
26. Before parting with the record, this Court is inclined to make it clear that the observations, made herein above, are only for the purpose of disposing of the present petition.
27. In terms of above, this writ petition stands disposed of. Send down the records of the learned Trial Court as well as the learned Page 58 of 59 Appellate Court, along with a copy of this judgment and order. The parties have to bear their own costs.
JUDGE Comparing Assistant Page 59 of 59