JUDGMENT <NAME>, Kt., C.J.

1. These are two cross-appeals from judgments of the First Class Subordinate Judge of <NAME>. In the suit from which Appeal No. 477 is brought, the plaintiffs are claiming a declaration that they are permanent tenants of the suit land, whilst Appeal No. 471 is an appeal in a suit brought by the landlord, defendant in the first suit, claiming possession of the suit property on the ground that the plaintiffs are annual tenants. So that the real point in both appeals is whether the plaintiffs in the first suit are permanent tenants op annual tenants.

2. For the purposes of determining the plaintiffs' title, the suit land is divisible into two parts, the claim of the plaintiffs being different in respect of those two parts. There is, first, the property shown on the exhibited plan within the parallelogram A B C D, which I will refer to as the "A property," and then there is the rest of the suit property, partly to the north and partly to the south of the A property, which I will refer to as the "B property". The A property .consists of six bighas, and the B property of twenty-four bighas. With regard to the A property the relevant facts are these. In the year 1815 the whole of the suit property, so far as we know, was granted by the desai of Nippani to the predecessors-in-title of the defendant (I am referring to the defendant in the first suit, i. e. the landlord). The actual sanad is not produced, although the defendant offered to produce it if called for, and therefore we do not know whether the land was actually in the occupation of the plaintiffs or any body else in 1815. That sanad applies to both the lands A and B, but the next four documents to which I will refer relate only to the A land. The first of those documents is exhibit 182, which is the rent-roll for the year 1837 of the desai of Nippani, showing the cultivators of various lands belonging to him. Amongst those cultivators is included the name of <NAME> as making payment of Rs. 19-14-9 in respect of land in Sankeshvar, which is the village where the land in suit is situated. Then the next document is exhibit 180, which is a similar rent-roll in respect of the year 1841, and that shows that the cultivator of land in Sankeshvar was a man named <NAME>, and the rent he is shown as paying is Rs. 100. Then the next document is exhibit 124, which is a letter written in the year 1844 by the <NAME> to the desai of Nippani relating to a quarrel relating to land of the desai in Sankeshvar. It is said that that letter shows that the land in 1844 was in the possession of the defendant's predecessors-in-title, but we only have the statement in that letter of the <NAME>, and we have not got any answer to that letter. The next document which I should refer to is the document marked exhibit 16 (1), of the year 1848, That purports to be an agreement by the predecessors-in-title of the defendant in favour of the predecessors of the plaintiffs, and it recognises the plaintiffs as being in possession of six bighas of land at Sankeshvar, and agrees to their spending money by constructing a well, and grants them the land for a term of twenty-one years at a rent of Rs. 22 a year, and thereafter, at the rent of Rs. 30 a year, The plaintiffs rely on that document, but the learned Judge held that it was not proved, and in my opinion, the learned Judge's decision on that point was correct. It was sought to prove the document in certain revenue proceedings, to which I will refer presently, which contemned in, 1888, The witness who was called in those proceedings to prove this document stated that he knew the handwriting it was in, but the document was not signed, and that being so, I think the learned Judge was right in holding that it was not proved. We have, therefore, no actual documentary evidence as to the plaintiffs' title to the A land at any rate before about 1855, and the plaintiffs rely on Section 83 of the Bombay Land Revenue Code as raising in their favour a presumption of permanent tenancy. That section provides :

.. where by reason of the antiquity of a tenancy, no satisfactory evidence of its commencement is forthcoming, and there is not any such evidence of the period of its intended duration, if any, agreed upon between the landlord and tenant, or those under whom they respectively claim title, or any usage of the locality as to duration of such tenancy, it shall, as against the immediate landlord of the tenant, be presumed to be co-extensive with the duration of the tenure of such landlord and of those who derive title under him.

The plaintiffs say that by reason of the antiquity of this tenancy there is no satisfactory evidence as to its commencement or as to its duration, and the answer of the defendant is that the three documents to which I have referred, the documents of 1837, 1841 and 1844, establish this, that in those respective yelars somebody other than the plaintiffs was in possession of the property, and therefore, it is said, the plaintiffs' possession must have started after 1844, somewhere between 1844 and 1851. It has been held by this Court in a good many cases that Section 83 of the Bombay Land Revenue Code, in referring: to the absence of satisfactory, evidence of the commencement of a tenancy, does not mean that there must be satisfactory evidence as to the exact date of commencement, that is, the day on which the tenancy commenced, but that it is sufficient if the evidence shows that the tenancy must have commenced in. a particular period ; and the degree of elasticity permissible in relation to the period has been the subject-matter of a good many decisions. Here it is-suggested by the defendant that as the period is fixed between 1844 and 1851, there is sufficient evidence as to the commencement. I doubt that proposition, but in any case, to my mind, the documents relied on by the defendant do> not afford any satisfactory evidence that the plaintiffs were not in possession before 1844 or 1837. There is, as I have pointed out, no definite evidence that the plaintiffs were not in possession before 1815, because we have not seen the actual <ORG>. The rent-rolls of the <NAME> in 1837 and 1841, although they refer to land in Sankeshvar, and although it has been admitted that the <NAME> owned no land in that village except the suit land, do not prove that the occupiers referred to in that rent-roll were in occupation of all the <NAME>'s land in Sankeshvar. It was found in 1857 in the revenue suit hereafter referred to that property A. had been in the enjoyment of the plaintiffs' predecessors from a very old time, and that the occupation of that land and property B had become severed by about 1851. There was no particular reason why the <NAME>'s rent-roll should have referred to the names of the cultivators of land, or to the rent they paid, where the land had been granted out to the predecessors of the defendant at a fixed rent of Rs. 100, The letter from the <NAME>, exhibit 124, is also, to my mind, a very weak piece of evidence. It is merely a statement of what the <NAME> was told, and we have not got the answer to tee letter. Therefore, I am not prepared to say that on those documents I consider that there is any satisfactory evidence as to the commencement of the plaintiffs' title in respect of the A property, or as to the duration of their tenancy. Indeed, if exhibit 16 (1) be not proved, ] .there is no evidence at all as to the duration of the tenancy. Therefore, to my mind, the presumption under Section 83 arises. There is nothing in the future £ history of the land to affect that presumption. That future history is bound up with property B, and I will refer to it in connection with the other part of the case.

3. Now coming to property B, the plaintiffs' contention was that they entered into possession of that land as permanent tenants in the year 1851 on the terms of an agreement, which is exhibit 16 (2). The learned Judge held that that exhibits was not proved. It appears that in the year 1855 a suit was commenced in <ORG> by the landlords of this property against the tenants for possession, and in those proceedings this document, exhibit 16 (2), was put in, and a witness was called, who said that he had been a clerk employed by the landlord, that the document was in his handwriting, and that the last words "these are the blessings" were in the handwriting of the landlord. Assuming that the evidence of that witness can be let in under Section 33 of the Indian Evidence Act, I agree with the learned Judge in thinking that this document is not proved. The important thing about it is that it was never signed, and therefore the document written out by the witness was really nothing more than a draft, possibly a fair copy. It is to be noticed, too, that in the revenue proceedings the <ORG> refused to accept the document. Assuming that the document, exhibit 16 (2), is not proved, then the plaintiffs put their case as to the B land in this way. They say that admittedly their title to the B land commenced in 1851, even if they do not prove the actual agreement under which it arose. In these revenue proceedings, started in 1855, the plaintiffs asserted that they were permanent tenants, no doubt relying on exhibit 16 (2), but at any rate there was an assertion that they were permanent tenants. From 1851 both property A and property B have been held together at one rent, and if there is a presumption that the plaintiffs' interest in property A is that of a permanent tenant, the mixing up of that land with property B suggests a similar interest in property B. A uniform rent was paid for both properties down to the year 1879 at the rate of Rs. 127 a year, and thereafter it was enhanced. The plaintiffs' case is that it was never enhanced beyond a figure recognised by local usage, and therefore the enhancement would come within the provisions of Section 83 of the Bombay Land Revenue Code, and would not be inconsistent with permanent tenancy. It is said, further, that in the revenue proceedings of 1855 the Collector refused to make an order for possession, and referred the landlord to a civil suit, and for upwards of sixty years no steps whatever were taken to file any suit or challenge the alleged title of the plaintiffs. It is contended, therefore, that the assertion by the tenants of a permanent tenancy, acquiesced in by the landlord for sixty years, and confirmed by acts of the tenant, such as spending money on the property and paying a much smaller rent than the value of the property warranted, leads to a presumption of permanent tenancy, apart from Section 83 of the Bombay Land Revenue Code, and further, that the landlord having acquiesced in that assertion, his title is barred under Article 144 of the Indian Limitation Act . It is of course admitted that the presumption under Section 83 of the Bombay Land Revenue Code does not arise in the case of the B property, because the date of the commencement of the title is known. To the plaintiffs' case the defendant answers that the only assertion of a permanent title was based on exhibit 16 (2),, which is not proved, and .further, that even if that document was proved, it does not constitute a permanent tenancy, and further again, if it does constitute a permanent tenancy, it also fixes a permanent rent, and subsequent enhancement of the rent is inconsistent with title based on a document fixing the rent.

4. The real question as to property B is one of law, namely, whether when a tenant in occupation of land paying an annual rent asserts at the commencement of his tenancy that he is a permanent tenant, and that alleged claim, although disputed by the landlord, is not challenged by a suit for more than sixty years, the position results in law in the acquisition of a permanent tenancy either under some presumption apart from that contained in Section 83 of the Bombay Land Revenue Code, or under the Indian Limitation Act . On that point of law there are some relevant decisions of <ORG>. There is, first of all, the case of <NAME> v. <NAME> (1923) L.R. 50 I.A. 202 in which it was laid down by their Lordships of <ORG> that they were unable to affirm as a general proposition of law that "a person who is, in fact, in possession of land under a tenancy or occupancy title can, by a mere assertion in a judicial proceeding and the lapse of six or twelve years without that assertion having been successfully challenged, obtain a title as an under-proprietor to the lands." I think that the decision comes to this, that where a person is given possession of land as a tenant, the mere fact that he asserts that the tenancy is of a particular kind will not by the lapse of time convert the tenancy into one of that kind. Whether a tenancy is permanent or not must depend on the facts of the case and the agreement between the parties and not on mere assertions. In my opinion that principle applies to the present case, Then <ORG> went rather further in <CITATION> (1923) L.R 51 I.A. 83, where they definitely held that the defendants being tenants could not obtain a right of permanent occupancy by prescription. But Mr. <NAME> on behalf of the appellants relies on another decision of the <CITATION> (1928) L.R. 55 I.A. 212 : S.C. 30 Bom. L.R. 1361. In that case lands were held under a mukarrari agreement and the mukarrari tenant died. The Court held that the tenancy was a tenancy for life which terminated on the death of the mukarraridar, but the mukarraridar's descendents alleged that it was a permanent tenancy and they remained in occupation and continued to pay rent asserting that they were permanent tenants. On the other hand, the landlord always denied their tenancy, and it was held by <ORG>, and affirmed by <ORG>, that the landlord's suit for possession was barred, and the defence set up by the defendants that they were permanent tenants by reason of their occupation and assertion of that right, was accepted. But their Lordships of <ORG>, after referring to the earlier decision of Madhavrao Woman Saundatgekar v. Raghunath Venhatesh Deshpande (1923) L.R. 50 I.A. 255 : S.C. 25 Bom. L.R. 1005, and <CITATION> , and to other cases, say that it is not necessary to consider those cases in detail, because the facts of that case did not bring it within the rulings in question. Then they say (p. 223) : "In this case the evidence goes to j show that after the expiration of the lease for lives the plaintiff's predecessor-in-title did not, in fact, claim to be the landlord, he did not admit any tenancy £ on the part of the defendants or their predecessors, and he did not, in fact, allow the defendants or their predecessors to be in possession as tenants". No doubt the landlord had accepted rent annually from the successors of the tenant. But the view their Lordships took was that the legal result which would normally follow from that course of conduct, namely, the creation of a tenancy between the landlord and the persons who paid the rent was prevented by the fact that the landlord had given receipts for the rent in the name of the deceased mukarraridar. I find it myself rather difficult to, follow how the legal consequences resulting from the acts of the parties in the payment and acceptance of rent could be affected by the receipt for rent having been given in the name of somebody who was dead and had not paid it. But at any rate the whole basis of that decision was that the landlord had never recognised the defendants as tenants, and therefore their possession had always been adverse to him. That is not the position here. Assuming that the tenants have asserted that they were permanent tenants, that alleged title has never been in any way recognised by the landlord, and he has always accepted rent every year, and given a receipt in no special form to the persons who paid the rent, and thereby he has in my opinion recognised those persons as tenants. If they are not permanent tenants, they must, I apprehend, be annual tenants, and it cannot be said, therefore, that their possession has ever been adverse to the landlord. That being so, in my opinion, the learned Judge was right in holding that the plaintiffs had failed to establish a permanent tenancy in respect of the B property. But I think that his judgment was wrong in respect of the A property, and that the plaintiffs do establish a permanent tenancy as to that.

5. With regard to the other Appeal, No. 471, certain objections are taken to the landlord's suit, which, as I have said, is a suit for possession. It is based on a notice to quit expiring in April 1922, and I am clearly of opinion that that notice to quit was waived by a subsequent notice to quit given on September 26, 1925, which is exhibit 172 in the case. The latter notice to quit in terms recognised the defendants as being annual tenants, and paying an annual rent, and the recognition of the tenancy amounts, in my opinion, to-a waiver of the earlier notice to quit. Therefore the plaintiff's suit, in my opinion, was bad, but Mr. <NAME> has asked for leave to amend his claim, by basing his right to possession on the notice of September 26, 1925f exhibit 172, and on terms as to costs we are prepared to give that leave. The notice is also challenged as being an insufficient notice to quit. It is said that it is really a notice to enhance rent, or at any rate only a contingent notice to quit; but as I read the document, I think it is a notice to quit on March 31. 1926" accompanied by an offer to abandon that notice if the tenant would agree to pay a further enhanced rent. Coupling that offer with the notice does not, in my opinion, invalidate the notice. Then it is said that the notice was not served upon defendants Nos. 3, 4 and 5. In the case of defendant No. 3, admittedly it was not served. In the case of defendants Nos. 4 and 5 a registered letter containing the notice was sent to them duly addressed, and service is alleged to have been refused. In fact the refusal was not proved, as the postman who took the letter and brought it back was not called. But in any case, even if the refusal had been proved, I should not be prepared to hold that a registered letter tendered to the addressee and refused and brought back unopened, was well-served. There are, I know, some authorities in this Court to the contrary, but it seems to me impossible to say that a letter has been served so as to bring the contents to the notice of the person to whom the letter is addressed, if the agent for service states that in fact the notice was not served, although the reason may have been that the addressee declined to accept it. One cannot assume that because an addressee declines to accept a particular sealed envelope he .has guessed correctly as to its contents. Many people in this country make a practice of always refusing to accept registered letters, a practice based, I presume, on their experience that such documents usually contain something unpleasant. So that, in my opinion, it is clear that this notice was not served on three of the defendants. But it was served on the other defendants, and the defendants are joint tenants of the land, and I think we can follow the ruling of <ORG> in the case of <CITATION> (1918) I.L.R. 46 Cal. 458 : S.C. 21 Bom. L.R. 522, P.C., and decide that service of a notice to quit on one of several joint holders affords prima facie evidence that it has reached the rest. The defendants in question did not go into the witness box to deny that they had received the notice, and therefore the prima facie presumption must prevail. I think, therefore, that subject to the defendant's amending his plaint, and with the necessary variation in the order as to mesne profits, Appeal No. 471 must be dismissed as to property B.

<NAME>, <NAME>

6. I concur. With regard to the grants of 1848 and 1851 on which the appellants rely for the creation of permanent tenancy, I think the lower Court was right in holding that they were not proved. They purport to be only uncertified copies, and are not signed by the executant. It is urged that there are certain words, viz. 'blessings', in these two grants which are deposed to in a previous deposition as having been written by the executant. But it appears from certain receipts in this case, for instance, exhibits 91, 92 and others that the executant <NAME> did affix his signatures to documents, and that being so, it is not shown how it is that in these grants, if they are executed by <NAME>, he has not put his signature but has only written the words, 'blessings'. Besides, in the revenue dispute before the Collector, these two documents, which were relied upon, have been held not proved and it is stated that thereafter they remained in the Collector's record, and are sought to be produced and proved now, mainly by the deposition of a Witness in former revenue proceedings, who says that some of the writings of these two grants are in the handwriting of <NAME>. But that is not sufficient for the proof of these two documents. Even assuming, however, that they are proved, I doubt very much if these two documents would create permanent tenancy at all. At the most they might create a tenancy for the life of the persons in whose favour the grants are made. Therefore these two documents being out of question, the appellants have to rely on Section 83 of the Bombay Land Revenue Code for alleging permanent tenancy. Now with respect to the land of six bighas, the lower Court has held that the origin of the defendants' title to possession of this land is known as having commenced some time between 1844 and 1851, and reliance is placed on three exhibits, 180, 182 and 124, I agree that it cannot be said that the commencement of the tenancy is proved satisfactorily within the meaning of that expression in Section 83 by these three documents. The respondents' ancestors' names are not shown in documents, exhibits 180 and 182, and exhibit 124 is simply a letter by the <NAME> with regard to some dispute raised by one <NAME>, who seems to be a cultivator on that land. If these three documents go out of the question, then the only thing on which we have to go upon is the statement made in the judgment given by the Deputy Collector in 1857, exhibit 84. That would, however, show that with regard to the A land, he was of opinion that the tenant's ancestors were on that land from very ancient times, and in that judgment a clear distinction is made between the A land and the rest of it, and it is stated there that with regard to the A land the tenant's ancestors were in possession from ancient times, and with regard to the entire land, that is, A and B, they were in possession since four or five years. Therefore, on this documentary evidence, it would appear that the antiquity of the tenancy having been proved by the tenants, the landlord has not sufficiently and satisfactorily proved that the tenancy commenced at any particular period. At the most it can be said that the tenancy might have commenced between 1815, from which year the landlord's tenure began, and 1851. But that is - too long and indefinite a period within which it can be said that the tenancy must have commenced at a certain date. Although according to some decisions of this Court the period of twenty years is regarded as one from which it can be shown that the commencement of a tenancy is satisfactorily begun, I think each case must depend upon the evidence produced in it, and I am satisfied that with regard to the evidence produced for the A land, the landlord has not proved that the tenancy with regard to that land commenced at any particular time. The result, therefore, will be that the tenants will be presumed to be permanent tenants, even though there has been some increase in the rent. That is so, because the rent that has been paid by the tenants to the landlord is not simply a rent for the A land, but for the aggregate of the A and B lands, i.e. Rs, 127.

7. Then coming to the B land, it is conceded that the tenants' occupation of this land began at a definite time, viz., 1851, and therefore the appellants cannot invoke the aid of Section 83 for the purpose of proving permanent tenancy. But it has been strongly urged on behalf of the appellants that although they did not get rights of permanent tenancy either by their grant or under Section 83 , they acquired them by adverse possession, and for that reliance has been placed upon a deposition of one of the ancestors of the present appellants, <NAME>, who deposed in previous revenue proceedings that they were holding the lands as permanent tenants by virtue of the grant of 1851; It is urged that since that assertion the tenants have been holding the land claiming to be permanent tenants, and that the landlord has accepted the rent, and has not disputed their status as permanent tenants. Now in order that a person can acquire rights by adverse possession, he must intend to do so in a manner which must be clear , and unambiguous. Here, we are not concerned with the acquisition of rights as absolute owner, but acquisition of rights as a limited owner. In fact it appears that between 1851, in which, according to the appellants, their possession began, and 1855, when the first assertion was made, they have given rent to the landlord for which there are receipts. That would show that they were in possession of the land as tenants. So we have not here the case of entire strangers or trespassers entering on the land for the first time and claiming to hold it adversely as permanent tenants. It is a case of a person who entered on the land as a tenant and paid rent, and subsequently made an assertion of permanent tenancy. But even then it cannot be said that the mere assertion as a permanent tenant would clothe him with the status of a permanent tenant by adverse possession. It must be noted that the plaintiffs' own case in the plaint was that they were permanent tenants at a fixed rent, and the evidence shows conclusively that the rent was changed from Rs. 103 to Rs. 175 even after the assertion of permanent tenancy was made. Very strong reliance-has been placed on behalf of the appellants on a decision of the <CITATION> (1928) L.R. 55 I.A. 212 : S.C. 30 Bom. L.R. 1361, but I agree that that decision, which turns on the special facts of that case, does not apply to the facts of the present case at alt In fact that decision was given on the basis that in that case the relationship of landlord and tenant had ceased between the parties after the assertion of permanent tenancy, and that the rent was taken by the landlord in the name of the original mukarraridars and receipts were also given in their names only, and when the tenants demanded receipts in their own names, the landlord refused to give such receipts, and thereafter no rent was paid. On that, <ORG> made a finding that the landlord did not admit any tenancy on the part of the defendants, and did not in fact allow them or their predecessors to be in possession as tenants. Therefore it is stated that on the special facts of that case, the parties were at. arm's length, the heirs of the lessees were asserting their permanent interest with a liability to pay rent, and they continued to assert it consistently from 1883. Here, however, the facts are entirely different. As I have observed, not only did the tenants pay the rent between 1851 and 1855, but ever since then also they have been paying rent, which the landlord has been accepting, and the rent is also increased. So the relationship of landlord and tenant has subsisted between them after the assertion of permanent tenancy. The present case, therefore, falls within the principle of the decisions in <NAME> v. <NAME> (1923) L.R. 50 I.A. 202, <CITATION> (1923) L.R. 51 I.A. 83, and also of the decision of our <ORG> in <NAME> v. <NAME> (1933) 36 Bom. L.R. 359; and not within the principle of the decision in <CITATION> . That being the only principal argument with regard to this land, I agree, that the appellants ale not permanent tenants thereof, and the decision of the lower <ORG> on that point should be affirmed.

8. With regard to the notice, I agree that the notice as given was not properly served, as it is clear that the registered document was refused. But I agree that the second set of plaintiffs, viz. the <NAME>, were joint among themselves, and held the land jointly, and it is proved in this case that defendants Nos. 5 and 6 did receive the notice, and therefore, they being joint tenants along with defendants Nos. 3 and 4, the latter should also be deemed to have received it. Therefore the suit is not bad on that ground. It is true that the landlord has relied on the notice of 1921 in the plaint, but that is clearly wrong, and I agree that the interests of justice require that the plaintiff should be allowed to amend the plaint.

9. Appeal No. 477 : Allowed as regards property A and dismissed as regards property B. Parties to get their proportionate costs throughout.

10. Appeal No. 471 : Allowed as regards property A. As to property B liberty to amend by pleading the notice of September 1925. Judgment for possession and for mesne profits of property B from three years before this date till delivery of possession. Inquiry, as regards mesne profits of property B and as to the amount of rent to be attributed to property A to be made in execution. Respondent to pay costs throughout in suit No. 243 and Appeal No. 471, but costs of evidence common to both suits to be allowed only in suit No. 132 of 1926.


PETITIONER: STATE OF RAJASTHAN & ORS. Vs. RESPONDENT: D.R. LAXMI & ORS. DATE OF JUDGMENT: 12/09/1996 BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. FAIZAN UDDIN (J) G.B. PATTANAIK (J) ACT: HEADNOTE: JUDGMENT:

O R D E R This appeal by special leave arises from <ORG> Judgment of <ORG> made on September 2, 1985 in W.P. No.602/78. The admitted facts are that the notification under Section 4(1) of the Land Acquisition Act, 1894  (for short, the 'Act') was published in <ORG> on March 23, 1977 acquiring 31.28 acres of land for defence purpose. Enquiry under Section 5-A was dispensed with in exercise of the power under Section 17(4) of the Act and declaration under Section 6 was published on April 28, 1976. Possession was taken on May 19, 1977. The award was passed under Section 18 was sought and made in March 1978 to <ORG> for enhancement of the compensation. In September 1978, the respondent filed writ petition in <ORG> seeking to quash the notification under Section 4(1) and the declaration under Section 6 . The learned single Judge referred the matter to <ORG>. <ORG> has held that the acquired land is not an arable or waste land and, therefore, the exercise of the power under Section 17(4) of the Act was bad in law. Substance of the notification under Section 4(1) was not published in the locality. The notification under Section 4(1) did not mention that it was a waste of arable land. On these grounds, the learned Judges have quashed the notification. Thus, this appeal by special leave.

<NAME>, learned counsel for the appellants, has contended that the view of <ORG> is clearly erroneous. It is not necessary that notification under Section 4(1) should contain a declaration that the needed land is a waste or arable land. The finding that it is neither nor arable land is not correct so long as the land is capable of cultivation. If no cultivation was made it would still be arable land. Therefore, the view that it is neither waste nor arable land is not correct. It is difficult to accept the entire six acres of land which is now claimed by the respondents was within the compound wall as found by <ORG>. The view that substance of the notification was not published in locality was not correct in law without any further discussion on facts or legal principles. Even the finding cannot be well supported by any material on record; in law <ORG> was wrong in interfering under Article 226 of the Constitution. <NAME>, learned senior counsel for the respondents, contended that since the substance of the notification under Section 4(1) was not published which is mandatory, the notification under Section 4 (10, and declaration under Section 6 could be challenged at any time even after the award was made or possession was taken. Since publication of the notification under Section 4(1) is the foundation for taking further steps for the acquisition, procedural steps required under the Act should be followed. The substance of the notification under Section 4(1) was not published in the locality. So all the proceedings which had subsequently been taken place stand nullified. Therefore, the Court would in an appropriate case grant the declaration including to quash the award future steps. He also contended that it would be difficult to accept that the lands are arable lands, if not waste land. The finding that the land is arable land is based on consideration of the material on record. Therefore, it is not arable land. Further, it is contended that the respondent had stated in <ORG> that he was prepared to accept the compensation provided the date of notification under Section 4(1) was shifted to four five years later to the actual date of the notification under Section 4(1) published on March 23, 1977. He would stand by the same offer and, therefore, it is not a case warranting interference.

The questions, therefore are : (1) whether the notification under Section 4 (10 should contain the declaration that the lands are waste or arable lands; (20 whether the exercise of the power under Section 17(4) was vitiated by the finding that the lands were not capable of cultivation being situated in urban area; (3) whether the substance of the notification published under Section 4(1) was not published in the locality; if it not complied with, when the entire acquisition proceedings had become final, whether <ORG> was justified in exercising the power under Article 226? It is not necessary to recapitulate all the facts narrated above. Suffice it to state that after the reference was made to <ORG>, it passed an award under Section 26 which was challenged by the <ORG> by filing an appeal under Section 54 against the enhanced compensation. Thereby, the respondents had accepted the award. The <ORG> feeling aggrieved by the enhanced compensation, filed an appeal in <ORG>. <ORG>, by judgments dated May 5, 1982 and September 23, 1982, dismissed the appeals which became final. Thus, the acquisition proceedings became final.

The question, therefore, as said above, is : whether <ORG> is justified in interfering with these matters ? Section 4 (10 of the Act does not required to specify the nature of the land, i.e. whether it is arable or waste land. The object of the publication of the notification under Section 4(1) was that (1) the land is needed for a public purpose or is likely to be needed;(2) the officers of the <ORG> are authorised to enter upon the land and carry on measurement etc; and (3) the owner/interested person was put on notice that any encumbrance hereafter would not bind <ORG>. Therefore, Section 4(1) does not envisage specification of the nature of the land, i.e. whether it is waste or arable land, when the same was published. The view, therefore, of <ORG> that the notification under Section 4(1) should contain a declaration of the nature of the land is clearly erroneous.

Second question whether the land is waster or arable, is a mixed question of facts and law. It depends upon the facts in each case. In this case, it is seen that on their own showing, the land of an extent of 6 acres belonging to the respondents was sought to be acquired along with other vast extent of land. It consists of open land as well building and the servant quarters. The award of the Land Acquisition Officer has been placed before us. The building was not acquired for the public purpose but only servant quarters came to be acquired. From this background, the question arises : whether the land is arable land > This question was considered by a Bench of three Judges in <CITATION> [(1968) 2 SCR 267]. After elaborate consideration of the various judgments of <ORG> and dictionary meaning of the words "arable" in that behalf, this Court has relied thus :

"There is no definition of the word 'arable' in the original Land Acquisition Act . A local amendment includes garden lands in the expression. Now lands are of different kinds : there is waste- land desert-land, pasture-land, meadow land, grass-land, wood-land, marshy-land, hilly land, etc. and arable land. The Oxford Dictionary gives the meaning of 'arable' as capable of being ploughed; fit for tillage ; opposed to pasture-land or wood land and gives the root as arable is in Latin. The learned Judges have unfortunately not given sufficient attention to the kinds of land and the contrast mentioned with the meaning. Waste-land comes from the Latin vastitas or vastus (empty, buildings). It was always usual to contrast vastus within incultus (uncultivated) as in the phrase 'to lay waste' (agri vastate). A meadow or pasture-land is pratum and arable is arvum and Cicero spoke of prata et arva (meadow and arable lands). Grass- land is not meadow or pasture-land and in Latin in known as campus as for example the well-known Campus Martius at Rome, where the comitia (assembly of the Roman people) used to meet. Woodlands is silvae, nemora or saltus."

This was considered also be <ORG> in <CITATION> . [AIR 1967 SC 1801]. In that case, the acquired lands were mineral lands for mining purpose. Therefore, the question arose; whether they were arable lands ? On the facts of this case, <ORG> came to the conclusion that since they were not arable lands, the exercise of the power under Section 17(4) was not justified in law. In view of the fact that the Act itself has considered as to when the land could be considered to be arable land; as explained by this <ORG>, the interpretation put up in <NAME> case is in the correct perspective. The <ORG> has power t consider the question in that light. In considering the question whether the land is arable or waste, dictionary meaning does not help the <ORG> to solve the problem. Pragmatic approach is required to be adopted in considering the question on the facts in each case. Though the lands in this case situated in urban area, the Urban Land Ceiling Act itself recognises existence of the agricultural lands within the urban agglomeration and they are dealt with accordingly. When the lands were capable of the raising crops, they remained to be arable under Section 17(4) by the <ORG> was not bad in law. On facts, it is an arable land capable to cultivation. It is quarter as part of a large area, including six areas of respondent's lands, it cannot be said that the ret of the land is occupied by the buildings or is within the compound though situated in urban area. The view of the High <ORG>, therefore, was clearly erroneous.

The question is : whether the absence of the publication of the substance of the notification in locality renders the entire proceedings void? We need not dilate upon the question whether local publication of substance of Section 4(1) notification is mandatory or directory. Since this Court has consistently taken the view that compliance of the requirement of the publication of the notification under Section 4(1) in the <ORG> as well as publication of the substance of the notification in the locality now under the Amended Act in the newspaper, is mandatory requirement. As the facts are not in controversy, as mentioned in the judgment of <ORG>, the substance of the notification was not published in the locality; we proceed on the premise that second step, namely, publication of the substance of the notification in the locality, was not taken. The question then is : whether Section 4(1) notification and Section 6 declaration are required to be quashed ? In this regard, we have to consider the conduct of the parties and the effect thereof. Under the scheme of the Act, after the possession of the land was taken either under Section 17(2) or Section 16 , the land stands vested in <ORG> free from all encumbrances. Thereafter, there is no provision under the Act to divest the title which was validly vested in the <ORG>. Under Section 48(1) before the possession is taken, the <ORG> Government is empowered to withdraw from the acquisition by its publication in the <ORG>. In this regard, a three-Judge Bench of this Court has considered the question in <CITATION> . [] and held in paragraphs 12 thus :

"That apart, as facts disclose, the award was made on 24.11.1980 and the writ petition was filed on 9.8.1982. It is not in dispute that compensation was deposited in <ORG>. It is asserted by the appellant <ORG> that possession of the land was delivered to it and the land had been divided and allotted to its members for construction of houses and that construction of some houses had petition was filed. It would be obvious that the question of division of the properties among its members and allotment of the respective plots to them would arise only after the Land Acquisition Officer had taken possession of the acquired land and handed it over to appellant <ORG>. By operation of Section 16 , the land stood vested in the <ORG> free from all encumbrances.

<CITATION> .[], the question arose: whether notification under Section 4(1) and the declaration under Section 6 gets lapsed if the award is not made within two years as envisaged under Section 11-A ? A Bench of three Judges had held that once possession was taken and the land vested in the <ORG>, title to the land so vested in the State is subject only to determination of compensation and to pay the same to owner. Divesting the title to the land statutorily vested in the <ORG> and reverting the same to the owner is not Section 48(1) gives power to withdraw from acquisition that too before possession is taken. That question did not arise in this case. The property under acquisition having been vested in the appellants, in the absence of any power under the act to have the title of appellants divested except by exercise of the power under Section 48(1) , valid title cannot be defeated. The exercise of the power to quash the notification under Section 4(1) and the declaration under Section 6 would lead to incongruity. Therefore, <ORG> under those circumstances should not have interfered with the acquisition and quashed the notification and declaration under Section 4 and 6 respectively. Considered from either perspective, we are of the view that <ORG> was wrong in allowing the writ petition.

In <NAME> case, another Bench of three Judges had held that though award under Section 11-A was not within two years after the Amendment Act 68 of 1984 came into force, the title having been vested in the <ORG>, the notification under Section 4(1) and declaration under Section 6 do not get lapsed and non-compliance of statutory provisions does not have the effect of divesting the title of the land vested in the <ORG> free from all encumbrances.

Recently, another Bench of this <ORG> in <ORG> Vs. <ORG> [C.A. No. 282 of 1989] decided on September 6, 1996 reexamined the entire case law and held that once the land was vested in the State, the <ORG> was not justified in interfering with the notification published under appropriate provisions of the Act. Delay in challenging the notification was fatal and writ petition entails with dismissal on grounds of latches. It is thus, well settled law that when there is inordinate delay in filing the writ petition and when all steps taken in the acquisition proceedings have become final, the <ORG> should be loathe to quash the notifications. The High <ORG> has, no doubt, discretionary powers under Article 226 of the Constitution to quash the notification under Section 4(1) and declaration under Section 6 . But it should be exercised taking all relevant factors into pragmatic consideration. When the award was passed and possession was taken, the <ORG> should not have exercised its power to quash the award which is a material factor to be taken into consideration before exercising the power under Article 226. The fact that no third party were created in the case, is hardly a ground for interference. <ORG> of the High <ORG> was not right in interfering with the discretion exercised by the learned single Judge dismissing the writ petition or the ground of latches. Reliance was placed by <NAME> on <CITATION> . [] in particular paragraphs 8, wherein it was held that compliance of the requirements is mandatory and non- compliance thereof renders all subsequent proceedings connected therewith unexceptionably illegal ; but the question is what will be its effect. That was not the question in that case, since no award had come to be passed in <CITATION> [] a two-Judge Bench of this <ORG> had held that if the requirements of Section 4 are not complied with, all proceedings had become invalid and possession was directed to be re-delivered to the appellant. We are of the view that the ratio therein is not correctly laid down. The question whether violation of the mandatory provisions renders the result of the action as void or voidable has been successfully considered in "Administrative Law" by <NAME> [7th Edition] at page 342-43 thus :

"The truth of the matter is that the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the court may refuse to quash it because of the plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the 'void' order remains effective and is, in reality, valid. It follows that an order may be void for one purpose and valid for another; and that it may be void against one person but valid against another. A common case where an order, however void, becomes valid is where a statutory time limit expires after which its validity cannot be questioned. The statute does not say that the void order shall be valid; but by cutting off legal remedies it produces that result."

The order or action, if ultra vires the power, it becomes void and it does not confer any right. But the action need not necessarily set at naught in all events. Though the order may be void, if the party does not approach the <ORG> within reasonable time, which is always a question of fact and have the order invalidated or acquiesced or waived, the discretion of the <ORG> has to be exercised in a reasonable manner. When the discretion has been conferred on the <ORG>, the <ORG> may in appropriate case decline to grant the relief, even if it holds that the order was void. The net result is that extraordinary jurisdiction of the <ORG> may not be exercised in such circumstances. It is seen that the acquisition has become final and not only possession had already been taken but reference was also sought for ; the award of the <ORG> under Section 26 enhancing the compensation was accepted. The order of the appellate court had also become final. The order of the appellate court had also become final. Under those circumstances, the acquisition proceedings having become final and the compensation determined also having become final, the High <ORG> was highly unjustified in interfering with and in quashing the notification under Section 4  and declaration under Section 6 .

It is true that the respondent had offered to accept the compensation by shifting the date of the notification by 4 to 5 years from the date of the notification under Section 4(1) . For this view, reliance was placed by Shri Sachar on the judgment of this Court in <CITATION> . [] where this Court had allowed the shifting of the date for the determination of the compensation. In that case since the award had not been passed, this Court had given the direction but in this case award determining the compensation has attained finality. It is not a case to shift the date for the determination of the compensation. Thus considered, we are of the view that <ORG> was not justified in interfering with the notification and declaration under Section 4(1) and 6 .

The appeal is accordingly allowed. The judgment of <ORG> stands set aside. The writ petition stands dismissed but, in the circumstances, without costs.


PETITIONER: <NAME> & ORS. Vs. RESPONDENT: THE PUNA MUNICIPAL CORPN. & ANR. DATE OF JUDGMENT23/01/1995 BENCH: (K.RAMASWAMY & N. VENKATACHALA) ACT: HEADNOTE: JUDGMENT:

ORDER

1. This appeal by special leave arises from the order of the Single Judge of <ORG> in Special Civil Application No.2521 of 1978, dated December 20, 1978 wherein the learned Single Judge set aside the order of the Joint Judge, <NAME>, dated 29.8.1973 made in Misc. Appeal No.92 of 1973. The facts necessary for disposal of this appeal lie in a short compass.

2. The Poona Municipality has undertaken widening of the road to remove traffic congestion and initiated proceedings under s.4(1) of the Land Acquisition Act , 1894 for acquiring two storied building belonging to <NAME> at Kotwal Chowk. The Notification under s.4(1) was published in the Gazette in December 1966. The Land Acquisition Officer passed his award on December 14, 1970. Thereafter the compensation was deposited and paid to the owner. Pursuant thereto possession was taken on March 13, 1971 by the competent officer and handed over to the corporation. However, the earlier 24 appellants/tenants who entered into leave and licence agreements with the <ORG> were allowed to get into possession. After the expiry of the period of leave and licence, proceedings were initiated for eviction of the appellants and an order in that behalf came to be passed. Calling in question that order of eviction, they went in appeal and writ petition but were unsuccessful. Ultimately, this Court affirmed the order of eviction of the appellants. Subsequently, they filed Civil Suit No.590/73 in the Court of the Joint Civil Judge, Poona and sought perpetual injunction from dispossession and for ad interim injunction. The Civil Judge by his order dated 27.4.1973 refused to grant ad interim injunction. The Joint Judge, as stated earlier, on appeal under s.43(r) C.P.C. allowed the appeal and granted ad interim injunction pending disposal of the suit. <ORG> in the Special Civil Application under Art.227 of the Constitution, by its impugned order dated 20.12.1978 set aside the appellate order and confirmed that of the Civil Judge. Thus this appeal, by special leave.

3. <NAME>, the learned Senior counsel for the appellants contended that under s. 115 <ORG>, <ORG> has power of revision where the appeal is not provided for either to it or subordinate court. Since the Joint Judge had exercised the appellate power, by operation of s. 1  15(2) , the <ORG> was devoid of jurisdiction to exercise the revisional power. When statutory prohibition was im- posed by <ORG> which is more expeditious and efficacious remedy, the exercise of' jurisdiction by the <ORG> under Art.226 was not warranted. At this juncture it is necessary to point out that the <ORG> exercised its power under Art.227 and not either under Art.226 or under s. 115 <ORG>. Even otherwise the bar under s. 115(2) is to exercise revisional power where the party is provided with right of appeal to the <ORG> or <ORG> against the impugned order. It is not a bar to exercise revisional power under s. 115(1)  507 against appellate order. The ratio in <CITATION> , 1987 (1) SCR 485, is that no second revision under s. 1  15(1) would lie against revisional order of <ORG>.

4. He further contended that the exercise of power under Art.226 is only discretionary; the appellate Judge has gone into the questions of fact and law; the exercise of power under Art.226 is not an appellate power but only one of correcting errors of jurisdiction. Appellate Judge ex- haustively dealt with all the points raised by the appellants, it is one of taking an alternative view by <ORG> to the one taken by the appellate Judge. <ORG> in that situation was not justified in interfering with the order of the appellate Judge, in particular, when scope of the revisional power tinder s. 1 15 CPC itself is very rigid. Even in equity the appellants are entitled to remain in possession since they have been continuing under the respondents since 1971 uninterruptedly and they should be allowed to continue till the disposal of the suit by giving suitable directions for expeditious trial. He also contended that in view of the resolutions passed by <ORG> on November 11, 1972 and November 29, 1972, suitable direction may be given to the Municipality to reconsider the matter whether the building is still needed for widening the road and based thereon, they could take appropriate steps or to provide alternative shops.

5. <NAME>, the learned Senior counsel appearing for the respondents, on the other hand contended that the need for widening the road still subsists and that the <ORG> having taken possession of the building and the order of eviction passed against the appellant having been allowed to become final by disposing the S.L.P. by this Court, the appellate Judge had committed palpable error of law in interfering with the order. He also contended that the Civil Suit itself is not maintainable as being barred by the provisions in the <ORG> Act and C.P.C.

6. Having heard the learned counsel for the parties, the question arises whether the appellant had shown that there was a prima facie case, triable issue and balance of convenience for granting ad interim injunction pending the suit. It is an admitted position that after the award was made by the Collector, possession was taken. Thereafter, the appellants entered into leave and licence with the <ORG>. On expiry thereof, the <ORG> had initiated proceedings for ejectment of the appellants and the order of ejectment had become final when the SLP was dismissed by this court. Thereafter, the appellants had no legal right to remain in possession of the shops. The question then is, whether an injunction could be granted in favour of the persons who remain in possession of the property. After the order of ejectment had become final, their continuance will be only unlawful possession and that therefore strong prima facie case need to be made out. Further question is, whether an injunction could be granted against the rightful owner in favour of the persons Who remain in unlawful possession. The appellate Court has not gone into the pertinent aspects of the matter. The founda- tion for action is based on the subsequent reservation of the <ORG>.

7. <CITATION> , (1993)3 SCC 161, a Bench of three Judges of this Court held that "a party is not entitled to an order of injunction as a matter of course. Grant of injunction is within the discretion of the court and such discretion is to be exercised in favour of the plaintiff only if it is proved to the satisfaction of the court that unless the defendant is restrained by an order of injunction, an irreparable loss or damage will be caused to the plaintiff during the pendency of the suit. The purpose of temporary injunction is, thus, to maintain the status quo. The court grants such relief according to the legal principles - ex debito justifiae. Before any such order is passed the court must be satisfied that a strong prima facie case has been made out by the plaintiff including on the question of maintainability of the suit and the balance of convenience is in his favour and refusal of injunction would cause irreparable injury to him. Further the court should be always willing to extend its hand to protect a citizen who is being wronged or is being deprived of a property without any authority in law or ,without following the procedure which are fundamental and vital in nature. But at the same time the judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the court.

8. <CITATION> , (1992)1 SCC 719, a Bench of two Judges (in which <NAME>, J. was a Member) of this Court held that the phrases "prima facie case", "balance of convenience" and "irreparable loss" arc not rhetoric phrases for incantation but words of width and elasticity, intended to meet myriad situations presented by men's ingenuity in given facts and circumstances and should always be hedged with sound exercise of judicial discretion to meet the ends of justice. The court would be circumspect before granting the injunction and look to the conduct of the party, the probable injury to either party and whether the plaintiff could be adequately compensated if injunction is refused. The existence of 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 further has to satisfy that noninterference 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 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 in-

junction would be issued. The court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit."

9.It is settled law that no injunction could be granted against the true owner at the instance of persons in unlawful possession.It is true that the appellants placed reliance in their plaint on resolutions passed by the <ORG>. on 11.11. 72 and 29.11.72. A reading of those resolutions would prima facie show that possession would be taken where the acquisition proceedings have become final and land acquisition proceedings would not be pursued where award has not been made as on the date of the resolutions. In this case, since the acquisition proceedings have become final, then necessarily possession has to be taken by the <ORG> for the public purpose for which the acquisition was made. In that context the question arises whether the appellants can seek reliance on two resolutions. They furnish no prima facie right or title to the appellants to have perpetual injunction restraining the <ORG> from taking possession of the building. The orders of eviction were passed by due process of law and had become final. Thereafter no right was created in favour of the appellants to remain in possession. Their possession is unlawful and that therefore, they cannot seek any injunction against the rightful owner for evicting them. There is thus neither balance of convenience nor irreparable injury would be caused to the appellants.

10. In <NAME>'s "Law Relating to Injunctions, Second revised and enlarged edition, 1992, at page 56 in para 30.01, it is stated that "an injunction will only be granted to prevent the breach of an obligation (that is a duty enforceable by, law)existing in favour of the applicant who must have a personal interest in the matter. In the first place, therefore, an interference by injunction is founded on the existence of a legal right, an applicant must be able to show a fair prima facie case in support of the title which he asserts". At page 80 in para 33.02, it is further stated that "if the court be of opinion that looking to these principles the case is not one for which an injunction is a fitting remedy, it has a discretion to grant damages in lieu of an injunction. The grounds upon which this discretion to grant damages in lieu 'of an injunction should be exercised, have been subject of discussion in several reported Indian cases". At page 83, it is stated that "the court has jurisdiction to grant an injunction in those cases.where pecuniary compensation would not afford adequate relief, The expression "adequate relief" is not defined, but it is probably used to mean - such a compensation as would, though not in specie, in effect place the plaintiffs in the same position in which they stood before. The determination of the question whether relief by injunction or by damages shall be granted depends upon the circumstances of each case.

11.In "Law of Injunctions" by <ORG>, at page 64, it is stated that "an application for temporary injunction is in the nature of a quia timet action. Plaintiff must, therefore, prove that there is an imminent danger of a substantial kind or that the apprehended injury, if it does come, will be irreparable. The word "imminent" is used in the sense that the circumstances are such that the remedy sought is not premature. The degree of probability of fu- ture injury is not an absolute standard: what is aimed at is justice between. the parties, having regard to all the relevant circumstances". At page 116, it is also stated that "in a suit for a perpetual or mandatory injunction, in addition to, or in substitution for, the plaintiff can claim damages. The court will award such damages if it thinks fit to do so. But no relief for dam- ages will be granted, if the plaintiff has not claimed such relief in the suit".

12. In "Modem Law Review", Vol 44, 1981 Edition, at page 214, <NAME> stated that "a plaintiff may still be de- prived of an injunction in such a case on general equitable principles under which factors such as the public interest may, in an appropriate case, be relevant. It is of interest to note, in this connection, that it has not always been regarded as altogether beyond doubt whether a plaintiff who does thus fail to substantiate a claim for equitable relief could be awarded damages". in "The Law Quarterly Review" Vol 109, at page 432 (at p.446), <NAME> under Title "Mareva Injunctions and Security for Judgment in a Framework of Interlocutory Remedies" stated that "if the plaintiff is likely to suffer irreparable or uncompensable damage, no interlocutory injunction will be granted, then, provided that the plaintiff would be able to compensate the defendant for any unwarranted restraint on the defendant's right pending trial, the balance would tilt in favour of restraining the defendant pending trial. Where both sides are exposed to irreparable injury pending trial, the courts have to strike a just balance". At page 447, it is stated that the court considering an application for an interlocutory injunction has four factors to consider: first, whether the plaintiff would suffer irreparable harm if the injunction is denied; secondly, whether this harm outweighs any irreparable harm that the defendant would suffer from an injunction; thirdly, the parties' relative prospects of success on the merits; fourthly, any public interest involved in the decision. The central objective of interlocutory injunctions should therefore be seen as reducing the risk that rights will be irreparably harmed during the inevitable delay of litigation".

13. In "Injunctions" by <NAME>, <ORG>, at page 22, it is stated -that "if the plaintiff obtains an interlocutory injuntion, but subsequently the case goes to trial and he fails to obtain a perpetual order, the defendant will meanwhile have been restrained unjustly and will be entitled to damages for any loss he has sustained. The practice has therefore grown up, in almost every case where an interlocutory injunction is to be granted, of requiring the plaintiff to undertake to pay any damages subsequently found due to the defendant as compensation if the injunction cannot be justified at trial. The undertaking may be required of the plaintiff in appropriate cases in that behalf". In "Joyce on Injunctions Vol. 1 in paragraph 177 at page 293, it is stated "Upon a final judgment dissolving an injunction, a right of action upon the injunction bond immediately follows, unless the judgment is superseded. A right to damages on dissolution of the injunction would arise at the determination of the suit at law".

14. It would thus be clear that in a suit for perpetual injunction, the court would enquire on affidavit evidence and other material placed before the court to find strong prima facie case and balance of convenience in favour of granting injunction otherwise irreparable damage or damage would ensue to the plaintiff The Court should also find whether the plaintiff would adequately be compensated by damages if injunction is not granted. It is common experience that injunction normally is asked for and granted to prevent the public authorities or the respondents to proceed with execution of or implementing scheme of public utility or granted contracts for execution thereof Public interest is, therefore, one of the material and relevant considerations in either exercising or refusing to grant ad interim injunction. While exercising the power of discretion, the court should also adopt the procedure of calling upon the plaintiff to file a bond to the satisfaction of the court that in the event of his failing in the suit to obtain the relief asked for in the plaint, he would adequately compensate the defendant for the loss en- sued due to the order of injunction granted in favour of the plaintiff. Even otherwise the court while exercising its equity jurisdiction in granting injunction as also juris- diction and power to grant adequate compensation to mitigate the damages caused to the defendant by grant of injunction restraining to proceed with the execution of the work etc. which is retrained by an order of injunction made by the court. The pecuniary award of damages is consequential to the adjudication of the dispute and the result therein is incidental to the determination of the case by the court. The pecuniary jurisdiction of the court of first instance should not impede nor a bar to award damages beyond its pecuniary jurisdiction. In this behalf, the grant or re- fusal of damages is not founded upon the original cause of action but the consequences of the adjudication by the con- duct of the parties, the court gets inherent jurisdiction in doing ex debito justifiae mitigating the damage suffered by the defendant by the act of the court in granting injunction restraining the defendant from proceeding with the action complained of in the suit. It is common knowledge that injunction is invariable sought for in laying the suit in a court of lowest pecuniary jurisdiction even when the claims are much larger than the pecuniary jurisdiction of the court of first instance, may be, for diverse reasons, Therefore, the pecuniary jurisdiction is not and should not stand -an impediment for the court of first instance in determining damages as the part of the adjudication and pass a decree in that behalf without relegating the parties to a further suit for damages. This procedure would act as a check on abuse of the process of the court and adequately compensate the damages or injury suffered by the defendant by act of court at the behest of the plaintiff.

15. Public purpose of removing traffic congestion was sought to be served by acquiring the building for widening the road. By orders of injunction, for 24 years the public purpose, was delayed. As a consequence execution of the project has been delayed and the costs now stand mounted. The courts in the cases where injunction arc to be granted should necessarily consider the effect on public purpose thereof and also suitably mould the relief In the event the plaintiffs losing ultimately the suit, they should necessarily bear the consequences. namely, escalation of the cost or the damages the <ORG> suffered on account of injunction issued by the courts. Appellate court had not adverted to any of the material aspects of the matter. Therefore, <ORG> has rightly, though for different reasons, dissolved the order of ad interim injunction. Under these circumstances, in the event of the suit to be dismissed while disposing of the suit the trialcourt is directed to assess the damages and pass a decree for recovering the same at pro rata against the appellants.

16. The appeal is accordingly dismissed with costs.