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 59
3. 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 59
5. 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 59
8. 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 courtPage 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, andPage 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, noPage 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 thePage 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 inPage 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 59
16.3. 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 59
However, 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 ofPage 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 decidedi. 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 orderPage 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 59
19.5. 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 SpecificPage 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
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