PURSHOTTAM DAS TANDON DEAD BY LRS. Vs MILITARY ESTATE OFFICER .
Bench: RANJAN GOGOI,M.Y. EQBAL
Case number: C.A. No.-002147-002147 / 2006
Diary number: 16953 / 2005
Advocates: SHREE PAL SINGH Vs
ANIL KATIYAR
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2147 OF 2006
PURSHOTTAM DAS TANDON DEAD BY LRS. … APPELLANT (S)
VERSUS
MILITARY ESTATE OFFICER & ORS. …RESPONDENT (S)
J U D G M E N T
RANJAN GOGOI, J.
1. The challenge in this appeal is against the common
order dated 27.05.2005 passed by the High Court of
Judicature at Allahabad in Civil Misc. Writ Petition No. 13353
of 1992 and Civil Misc. Writ Petition No. 28558 of 2002. The
High Court, by the impugned order, has dismissed both the
writ petitions filed by the appellant and has further held that
the entitlement of the appellant to the reliefs claimed
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therein will have to be adjudicated in a suit for declaration of
title.
2. The elaborate facts will necessarily have to be recited
for the purposes of bringing out the controversy involved
and also to embark upon a scrutiny of the correctness of the
impugned conclusions recorded by the High Court in the
order under challenge.
3. The suit property is Bungalow No. 29, Chaitham Lines,
Allahabad covered by Survey No. 143, Old Cantonment,
Allahabad. There is no dispute that late Lala Manohar Lal
grandfather of the present appellant had purchased the said
property for a sum of Rs. 2900/- in a Court auction held on
25.11.1848. The auction sale was confirmed by the Court on
27.12.1848. The possession of the property of the
predecessors-in-interest of the appellant and thereafter of
the appellant is not in dispute.
4. The Union of India issued a resumption notice dated
26.12.1968 in respect of the property in question. The
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appellant instituted Civil Misc. Writ Petition No. 175 of 1969
before the Allahabad High Court contending that the
property was purchased by his predecessors-in-interest and
had fallen to his share in a family settlement. The Union of
India sought to resist the claim of the appellant by asserting
that the land on which the property stood was the subject of
old grant dated 12.09.1836 issued by the Governor General
in Council under which a right of resumption was vested in
the Union. It was further contended on behalf of the Union
of India that under the clauses of the aforesaid grant it was
only the building which was conveyed to the predecessors
of the appellant and the same could always be resumed
subject to payment of compensation to be assessed on the
cost of the building. It appears that the Union of India had
also asserted that, in any event, under the terms of the old
grant title to the land had remained with the Union and was
not and in fact could not have been transferred to the
predecessors-in-interest of the appellant.
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5. The writ petition was disposed of by the Allahabad High
Court on 06.07.1970 by holding that as highly disputed
questions of fact relating to title had arisen such issues
would not be appropriate for adjudication in the exercise of
the writ jurisdiction. The parties, therefore, were relegated
to the remedy of a civil suit. However, in the said
proceeding an undertaking was made on behalf of the Union
of India that the appellant would not be evicted from the
property except in accordance with law.
6. Around this time the appellant instituted Civil Suit No.
147 of 1971 in the Court of the Additional District Judge,
Allahabad seeking eviction of Allahabad Polytechnic and
Harijan Sewak Sangh who were the tenants and sub-tenants
in the property. The Union of India served notice upon the
aforesaid two occupants of the property demanding rent
claiming to be the owner thereof. Allahabad Polytechnic,
therefore, filed an inter-pleader suit No. 161 of 1973 in the
Court of the Civil Judge, Allahabad impleading the appellant
and the Union of India as Defendants 1 and 2 in the suit. In
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the said suit it was prayed that the defendants may inter-
plead so that the right to collect rent of the property in
dispute could be determined. In Second Appeal No.2866
arising out of the aforesaid suit, the decree of the learned
trial court that the appellant and not the Union of India was
entitled to receive rent was affirmed. The said decree was,
in turn, affirmed by this Court on 22.02.1984 by dismissal of
the special leave petition filed by the Union of India.
7. It appears that on the strength of the aforesaid order
passed by this Court the appellant moved an application
before the Executive Officer of the Cantonment Board,
Allahabad, for mutation of his name in respect of the
property in question and for permission to deposit the
property tax etc. The aforesaid application was filed on the
claim that the appellant is the owner of the property. It also
appears that the appellant had filed an application dated
08.04.1977 seeking exemption of excess land under the
provisions of the U.P. Urban Land Holding Ceiling Act, 1932
on the ground that he intended to raise accommodation
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thereon for economically weaker sections. What happened
thereafter is not very relevant except that on 21.04.1992
Civil Misc. Writ Petition No. 13353 of 1992 was filed by the
appellant for “issue a writ of mandamus directing the
respondents to mutate the name of the petitioners as
owners of Bungalow No. 29 Chaitham Lines, Allahabad and
also to accept the property tax.” The aforesaid writ petition
was dismissed on 07.01.2000 by holding that in view of the
judgment dated 6.7.1970 passed in Civil Misc. Writ Petition
No. 175 of 1969 which was binding on the parties the
dispute required resolution in a regular civil suit which could
be filed by either of the parties in terms of the judgment of
the High Court dated 06.07.1970. The issue as to whether
the judgment of the High Court in Second Appeal No. 2866 of
1978 arising out of the inter-pleader suit would operate as a
res judicata on the question of title to the property was not
decided by the High Court. The aforesaid judgment and
order of the High Court dated 07.01.2000 was the subject
matter of challenge before this Court in Civil Appeal No.
7284 of 2001 at the instance of the appellant.
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8. It appears that the appellant had also filed an
application before the competent authority under Section
181 of the Cantonment Act, 1924 for sanction of plans for
raising further additional construction on the land. The said
application was rejected on 14.03.2002. The order of
rejection available in the original records of the case
indicates that the rejection was made in view of the
resumption order dated 26.12.1968 and also on account of
objections of the cantonment authority with regard to the
ownership of the appellant to the land. Aggrieved, the
appellant filed Civil Misc. Writ Petition No. 28558 of 2002. In
the said writ petition while the appellant asserted his
ownership of the property i.e. Bungalow as well as the
appurtenant land the Union of India denied such ownership.
The High Court of Allahabad by its order dated 05.03.2003
disposed of the writ petition by requiring the appeal filed by
the appellant under Section 274 of the Cantonment Act
against the order of rejection dated 14.03.2002 which was
pending, to be disposed of. However, the High Court in its
aforesaid order dated 05.03.2003 recorded
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findings/observations to the effect that in Second Appeal No.
2866 of 1978, arising out of the inter-pleader suit, the
property in dispute has already been held by the High Court
to be belonging to the appellant and that the said decision
was upheld by this Court on 22.02.1984. On the said basis
the High Court recorded its conclusion that the question of
title to the property had become res judicata and cannot be
raked up again.
9. The aforesaid judgment dated 05.03.2003 was
challenged before this Court by the Cantonment Board in
Civil Appeal No. 6637 of 2003. Both the appeals were
disposed of by this Court on 19.12.2003 by remanding the
matter to the High court in view of the apparent
inconsistency in the two orders of the High Court on the
issue of res judicata. The present impugned order dated
27.05.2005 of the High Court has been passed pursuant to
the aforesaid remand made by this court by its order dated
19.12.2003.
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10. We have heard Shri S.R. Singh, learned senior counsel
for the appellant and Shri R.S. Suri, learned senior counsel
for the respondents.
11. The High Court, by the impugned order, has taken the
view that the judgment and decree passed in the inter-
pleader suit holding the appellant to be entitled to receive
the rent in respect of the property would not operate as a
res judicata so as to confer any finality to the issue of title in
respect of the property. Thereafter, taking into account the
judgment dated 06.07.1970 rendered by the High Court in
Civil Misc. Writ Petition No. 175 of 1969, the High Court left
the parties with the option of moving the civil court for
adjudication of title. Accordingly, the writ petitions were
dismissed.
12. The aforesaid conclusion of the High Court appear to be
based on three principal grounds. Firstly, the High Court
held that the decree in the proceedings arising out of the
inter-pleader suit as affirmed by this Court merely decided
the entitlement of the appellant to receive rent in respect of
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the property and in fact the question of title to the property
was neither in issue in the said proceedings nor was the
same decided. In this regard the High Court specifically
noticed that in the judgment rendered in the Second Appeal
No. 2866 of 1978 the High Court had specifically recognized
the right of the Union of India to take out legal proceedings
for eviction of the appellant thereby clearly indicating that
the issue of title was not conclusively determined in the said
inter-pleader suit and the proceedings arising therefrom.
Alternatively, the High Court held that if the said decree is to
be understood as one of determination of title to the
property the same would be without jurisdiction as a decree
declaring title in an inter-pleader suit filed by a tenant is
barred under the provisions of Order XXXV Rule 5 of the
Code of Civil Procedure.
13. A reading of the judgment dated 27.11.1981 passed in
Second Appeal No. 2866 of 1978 clearly indicates that while
deciding on the entitlement of the appellant to receive rent
in respect of the property the High Court had held that
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without taking recourse to legal proceedings to evict the
appellants from the property, the Union of India could not
have the demanded rent in respect thereof. In fact, in the
aforesaid judgment dated 27.11.1981 passed in Second
Appeal No.2866 of 1978 it was clearly observed that :
“The Union of India should first have taken proceedings for ejectment of the appellant and then alone after success in the ejectment suit should have been a demand for rent and without that the appellant’s right to rent could not be disturbed. This also leads to the conclusion that it is the appellant to whom the rent is payable by the Allahabad Polytechnic unless the appellant is evicted by due process of law.”
14. From the above, it is abundantly clear that the issue of
title was kept open in the proceedings of the Second Appeal.
The subject matter of the inter-pleader suit and the
proceedings arising therefrom clearly pertains to the
entitlement of the presently contesting parties to receive
rent in respect of the property in question. On the other
hand, in the writ petitions, the appellant, claiming
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ownership, had sought mutation, as a owner, in the
cantonment records and also the permission to raise
construction, a right flowing from the incidence of ownership
of the land. The subject matter of the two proceedings i.e.
inter-pleader suit and the appeals arising therefrom and the
writ petitions filed by the appellant are, therefore, not
directly and substantially the same so as to attract the
principle of res judicata enshrined in Section 11 of the Code
of Civil Procedure. Certainty of the above principle would
not require us to trace the elaborate case law readily
available on the subject.
15. Having regard to the nature of the dispute and the
highly contentious issue raised, if in view of the earlier order
dated 06.07.1970 passed in Civil Misc. Writ Petition No.175
of 1969, the High Court had dismissed the Writ Petitions
leaving it open for the appellant to avail the remedy of civil
suit to get the title to the property adjudicated by a
competent civil court, no fault, muchless any infirmity, can
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be found so as to warrant our interference. Accordingly, the
civil appeal will have to be dismissed which we hereby do.
16. Before parting, we deem it necessary to mention that
though the litigation between the parties in the present case
has been going on for nearly five decades there is some lack
of clarity whether it is title to Bungalow No.29, Chaitham
Lines, Allahabad or is it title to the land over which the said
property is located that has been the bone of contention
between the parties over this great expanse of time.
Though the resumption notice dated 26.12.1968 leading to
Civil Misc. Writ Petition No. 175 of 1969 was in respect of the
bungalow, the subsequent claim of the appellants seem to
be to the land itself in view of the reliefs sought in the Civil
Misc. Writ Petition No. 13353 of 1992 and Civil Misc. Writ
Petition No.28558 of 2002. The same, as noticed, were
instituted after rejection of the appellant’s claims made in
the application/representations filed before the cantonment
authority for reliefs that were based on claims of ownership
of the land. The stand of the cantonment authority in the
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Civil Misc. Writ Petition No.175 of 1969, noted by us, is based
on the terms of the old grant issued by the Governor General
in Council on 12.09.1836. The legal effect of the terms of
the said grant has been dealt with by this Court in Chief
Executive Officer Vs. Surendra Kumar Vakil & Ors.1and
Union of India & Ors. Vs. Kamla Verma2 and have been
understood to be conveying a lease of the building standing
on the cantonment land with the power of resumption in the
cantonment authority subject to payment of compensation
for the cost of the building and not as a lease of the land
itself.
17. The above position has been emphasised for being kept
in mind while dealing with all possible future litigations
concerning the property in question without, of course,
expressing any opinion on the merits of the
claims/contention of any of the parties.
....………….…………………J. [RANJAN GOGOI]
1 (1999) 3 SCC 555 2 (2010) 13 SCC 511
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…………....……………………J. [M. Y. EQBAL]
NEW DELHI, AUGUST 13, 2014.
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