Union of India Vs Vijay Krishna Uniyal (d) Thr. Lrs

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 16949-16950 OF 2017 (Arising out of SLP (Civil) Nos.15836-15837 of 2009)

Union of India …..Appellant

:Versus:

Vijay Krishna Uniyal (D) through L.Rs. ....Respondents

J U D G M E N T

A.M. KHANWILKAR, J.

1. Leave granted.

2. These appeals emanate from the judgment and decree

dated 28th February, 2008 of the High Court of

Uttarakhand at Nainital in Second Appeal No.206 of 2001

and also the order dated 19th June, 2008 in Review

Application No.668 of 2008.

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3. The central issue involved in these appeals is: whether the

High Court, while dismissing the second appeal filed by

the plaintiff (original respondent) being devoid of merit and

despite upholding the concurrent finding of fact recorded

by two Courts below on the factum of ownership of the

land, was justified in making an observation which has the

potential of reopening the already settled issue of title in

respect of the suit property?

4. The original respondent Vijay Krishna Uniyal, claiming to

be the owner and in possession of the immovable property

admeasuring 3.398 acres, known as Wolfsburn Estate,

situated at Survey No.11, Landour Cantonment,

Mussoorie (hereinafter referred to as “the suit property”),

on which a building existed, consisting of many rooms in

which a block for watchman and other structures existed,

was served with a notice dated 19th August, 1985 issued

by the Under Secretary to the Government of India, for and

on behalf of President of India, bearing No.701/64/R&D/

L&C/74/1805/D(Lands), to quit and deliver possession of

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the land together with structures standing thereon, to the

agent of Government (Defence Estate Officer, Meerut

Circle, Meerut Cantonment), on the expiry of one month’s

notice from the date of its receipt. It was also made amply

clear that on expiry of the said period, any right regarding

occupation or easement and interest in the said property

shall cease to exist. The said notice reads thus:

“No. 701/64/R&D/L&C/74/1805/D(Lands) Government of India, Ministry of Defence.

New Delhi 19th Aug, 1985

To Shri. Vijaya Krishan Uniyal, Sy. No. 11, Wolf Burn Estate, Landour Cantonment

NOTICE

WHEREAS the land comprising Sy. No.11 the site of B. No. known as Wolf Burn Estate, Landour Cantonment measuring 3.398 acres and bounded as follows:

On the North by Sy. No.13 On the South by Sy. No.173 and 163 On the East by Sy. No.170 On the West by Sy. No.163

Belongs to the President of India (hereinafter called the Govt.) and is held by you on ‘old Grant’ terms under the Governor General order No.179 of 12.9.1836 under hw Government are entitled to resume the said land.

2. AND WHEREAS Government has decided to resume the said land and the buildings standing thereon.

3. NOW therefore, in exercise of the power hereinafter mentioned, the Government hereby give notice to you to quit and

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deliver possession of the aforesaid land together with structures standing thereon to the agent for government (Defence Estates Officer, Meerut Circle, Meerut Cantt), on the expiry of the one month notice from the date of receipt of this notice. Please note that on the expiry of one month from the date of service of this notice your occupation and any right easement and interest you may have in the said land and buildings standing thereon shall cease as from that date.

4. TAKE NOTICE further that Government are prepared to pay and so offer you the sum of Rs.17,275/- (Rupees Seventeen thousand two hundred and seventy five) only as the value of the authorised erections standing on the aforesaid land. A cheque for this amount is enclosed herewith.

Sd/- (A.K. GOYAL)

Under Secretary to the Government of India For and on behalf of President of India”

(emphasis supplied)

5. After receipt of the said notice, the original respondent

filed a civil suit before the Court of Civil Judge, Court

No.1, Dehradun, Mussoorie, being Suit No.484 of 1985, for

simpliciter permanent injunction restraining the

appellants, its officers’ or representatives and servants

from dispossessing him from the suit property pursuant to

the aforementioned notice dated 19th August, 1985. An

alternative relief was prayed that a reasonable and

adequate compensation in respect of the suit property be

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determined by the appellant on the principles laid down by

law, for acquisition of the immovable property after giving

an opportunity to the plaintiff (original respondent) of

being heard before he is compelled to deliver possession of

the suit property to the appellant. The reliefs claimed in

the said suit read thus:

“The plaintiff, therefore, begs to claim a decree against the defendant for:-

1 Permanent injunction restraining the defendant, its officers, representatives and servants from dispossessing the plaintiff from the immovable property known as Wolfsburn Estate, situate at Survey No.11, Landour Cantonment, Mussoorie in pursuance of the notice No. 701/64/R&D/L&C/74/1805/D Lands dated 19th August 1985 issued by the Under Secretary to the Government of India. Ministry of Defence, New Delhi. In the Alternative a reasonable and adequate compensation for Wolfsburn Estate be determined by the defendant on the principles laid down by law for the acquisition of the immovable property after giving an opportunity to the plaintiff of being heard and paid to the plaintiff before he is made liable to deliver possession of the said property to the defendant.

2 Full costs of this suit against the defendant. 3 Any other relief or reliefs which in the opinion of the learned

Court the plaintiff is entitled to.

Vijay Krishan Uniyal

Plaintiff

By the pen of (Indu Mouli Uniyal)

Duly constituted attorney”

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6. From the tenor of the plaint, it is amply clear that the suit

was filed on the basis of title acquired by the plaintiff in

the suit property vide registered Sale Deed dated 14th

August, 1980. On that assertion, it is pleaded that the

defendant has no right to take possession of the suit

property in the guise of being owner thereof. The plaintiff

claimed to be in settled occupation of the suit property.

The plaintiff also asserted that he has occupancy rights in

the suit property which were analogous to the ownership

rights vested in him. On that basis, it was pleaded that

possession of the suit property can be taken over only by

way of acquisition and payment of reasonable

compensation therefor to the plaintiff. The plaintiff also set

up an alternative plea that he has acquired full ownership

rights in the suit property on account of long and

undisturbed possession, without payment of any rent for

over 60 years. 7. The assertions made by the plaintiff were contested by the

appellant by filing written statement. It was categorically

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stated that the plaintiff, under the registered sale deed,

had purchased only occupancy rights from the previous

holder and was not the absolute owner of the property.

The property belongs to the appellant and it was open to

the appellant to resume the same in terms of Old Grant for

national defence requirement. The appellant categorically

denied the assertion of the plaintiff that the occupancy

rights were analogous to ownership rights or that the

plaintiff had become the absolute owner of the suit

property by adverse possession. It was asserted by the

appellant that it wanted to resume the land which was

granted originally on Old Grant terms to a private

occupancy holder. It is not a case of acquisition of the suit

property but resumption thereof, in terms of the

stipulations in the Old Grant. Regarding the prayer for

awarding reasonable compensation, the appellant stated

that it was open to the plaintiff (original respondent) to

request the Government to constitute a Committee of

Arbitration for determination of reasonable compensation

in terms of the Old Grant regulations issued by the then

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Governor General in Council vide General Order No.179

dated 12th August, 1836. It was also asserted by the

appellant that it was incorrect to contend that the plaintiff

was not offered any compensation at all. Further, the

plaintiff will be entitled for suitable compensation only in

respect of the structures and not in relation to the land as

such. The appellant, thus, prayed that the suit deserves to

be dismissed. On the basis of the pleadings, the Trial

Court framed four issues which read thus:

“1. Whether the plaintiff is absolute owner of the property in dispute and as such the property cannot be resumed?

2. Whether the suit is bad for want of notice u/s 80 of C.P.C.?

3. Whether the defendant has right to resume the property and the plaintiff is entitled only for the compensation?

4. Relief?” (emphasis supplied)

8.Both the parties adduced oral and documentary evidence

in support of their respective stand. The Trial Court,

however, answered the issues against the plaintiff (original

respondent) and has held that the suit property belongs to

the Government of India. Further, the possession of the

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plaintiff (original respondent) was limited to occupancy

rights therein derived from the Old Grant in favour of his

predecessor in title. The Trial Court held that the

defendant had right to resume the property and the

plaintiff (original respondent) was entitled only to get

compensation for the structure. Accordingly, the Trial

Court dismissed the suit in entirety vide judgment and

decree dated 16th October, 1997. 9. Aggrieved, the plaintiff (original respondent) filed Civil

Appeal No.69 of 1997 before the Court of Additional

District Judge-II, Dehradun. The Appellate Court

formulated four points for its consideration, which read

thus:-

“1. Whether appellant/plaintiff happens to be owner of suit property?

2. Whether effect of non-issuance of notice of section 80 C.P.C. is detrimental?

3. Whether defendants/respondents have got rights in the property and plaintiff is entitled, to get compensation only?

4. Whether the plaintiff is entitled to get the relief(s) sought?”

(emphasis supplied)

The Appellate Court, after analysing the evidence and

documents and admission deed executed by the plaintiff,

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available on record, answered the questions posed before it, in

particular regarding the ownership of the suit property. The

First Appellate Court upheld the finding of fact recorded by the

Trial Court - that the suit property belongs to the Government

of India and the plaintiff (original respondent) was not the

owner thereof. The relevant extract from the decision of the

First Appellate Court reads thus:

“I heard both the parties and perused the evidence & document available on record. Question before me is as to whether appellant/plaintiff happens to be owner of suit property or not? Second question is as to whether notice dated 09th August, 1985 which was issued to the appellant, the same was to as per rules or not. Another question is as to whether appellant is entitled to get any compensation or not? As far as ownership is concerned, document which was filed by the appellant/plaintiff in support of his case, he filed the sale deed 23A1 in those documents. According to the same, he purchased this property from S. Jodh Singh, S. Jogender Singh, S. Harbhajan Singh, S. Ranjit Singh and others. Thus, defendant/respondents if have raised this contention that this land belonged to the Government of India. Appellant/plaintiff does not have ownership right on this property. In support of this case they filed documents vide list 20C and 27C and documents were filed through 35C also in which 38C is the said admission deed in which appellant/plaintiff has admitted that a this property vests in the Government of India an in the declaration deed 39C, it has been admitted that rights of Government of India vest in this Property and it was also admitted that if its resumption is done, then compensation for the construction would be paid to him. Similarly, Jogender Singh who sold this property to appellant/plaintiff, he too had executed such deed in favour of opposite party. From these documents, it becomes evident that this suit place belongs to the Government of India and appellant/plaintiff is not owner

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of the suit land. Thus, this conclusion of the learned lower court is as per rules land according to the records.”

(emphasis supplied)

10. As regards the question of compensation, the First

Appellate Court opined that the plaintiff (original

respondent) would be entitled for compensation for which

he must first approach the Government for appointment of

an Arbitrator to determine appropriate compensation to be

paid to him. Resultantly, the First Appellate Court was

pleased to partly allow the appeal by setting aside the

judgment of the Trial Court only on the issue of

compensation. The operative order passed by the First

Appellate Court modifying the decree passed by the Trial

Court, reads thus:

“ORDER Appeal of the appellant is allowed partially and judgment of lower court about compensation is set-aside. Appellant/plaintiff is entitled to get compensation for the suit property he would submit application to the defendants for this compensation and after hearing, defendant would determine this compensation. Both parties to bear their respective expenses.”

11. Against the decision of the First Appellate Court, the

plaintiff (original respondent) approached the High Court

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of Uttarakhand at Nainital by way of Second Appeal

No.206 of 2001. After hearing the parties, the learned

Single Judge of the High Court vide order dated 14th July,

1999, was pleased to admit the second appeal by framing

two substantial questions of law. The said order reads

thus:

“Heard Sri Ravi Kiran Jain, learned Senior Counsel appearing for the appellants.

It is submitted that by notice dated 19.08.1985 as contained in annexure-2 to the affidavit, the property in question was resumed by the respondent and an amount of Rs.17,275/- was offered as compensation. It is submitted that the amount of compensation was arrived at arbitrarily without giving any opportunity to the appellant for determining the amount of compensation. The submission is that the appellant cannot be dispossessed and the respondent a cannot resume the land on the basis of such a notice. His next submission is that no evidence has been adduced to the effect that the land belongs to the respondent. The defendant respondent have relied upon certain admission of the plaintiff/appellant which alone is not enough.

Learned Counsel relies upon the Judgment of this Court in Second Appeal No.286 of 1978 Purshottam Das Tandon Vs. Union of India, decided on 27th November, 1981.

Having heard learned counsel for the appellant and having considered the Judgment reference to in support of his arguments, the appeal is admitted on the following substantial questions of law:-

1. Whether the notice dated 19.08.1985 would entitle the defendant respondent to resume the land and dispossess the plaintiff appellant without giving him opportunity of hearing for determining the amount of compensation?

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2. Whether in the absence of any other evidence adduced by the defendants respondents, on the basis of alleged admission of the plaintiff/appellant, alone the property can be held to be belonging to the respondents and can thereby be resumed by them?

Issue notice to the respondents. Call for record of the trial court and list for hearing on 21st September, 1999.”

(emphasis supplied)

12. The second appeal was finally heard by the learned

Single Judge and by judgment and decree dated 28th

February, 2008, it was dismissed on the finding that it

lacked merit. For the purpose of examining the issues as

have arisen for consideration of this Court, it will be useful

to reproduce the relevant portion from the said decision

which reads thus:

“xxx xxx xxx

15. So far as the aforesaid submission made by counsel for the appellant with regard to ownership is concerned, both the courts below have given the concurrent findings on this issue have come to the conclusion that the property belong to the Union of India.

16. xxx xxx xxx

17. Counsel for the appellant has pressed on the registered sale deed dated 14.08.1980 executed in his favour which shows a prima facie case with regard to ownership of the property in dispute in his favour.

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Perusal of record also reveals that the plaintiff is in possession of the same.

18. Without entering into the title over the property in dispute, it is made clear that the appellant shall not be evicted from the property in dispute, except in accordance with law. The appellant shall get full opportunity if the eviction proceedings are initiated against him. The findings recorded by the trial court as well as appellant court shall not come in the way of the appellant and the appellant shall be at liberty to take his defence and the same shall be decided in accordance with law.

19. Subject to the aforesaid observations, second appeal lacks merit and is dismissed. No order as to costs.”

(emphasis supplied)

13. The appellant is aggrieved by the observations made

by the learned Single Judge in paragraphs 17 and 18,

which, according to the appellant, has the potential of

taking away the effect of the concurrent finding of fact

recorded by two courts below and upheld by the High

Court; and would embolden the respondent to re-agitate

the issue of ownership which has already been settled.

Therefore, the appellant filed Review Application No.668 of

2008 before the High Court in the disposed of Second

Appeal No.206 of 2001. The learned Single Judge vide

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judgment and order dated 19th June, 2008, however,

dismissed the said review application. The order passed

on review application reads thus:

“Heard Sri. D. Barthwal, counsel for the appellant and none for the respondent.

Present application has been filed for reviewing the order dated 28.2.2008 as mentioned in paragraph 3 to the following effect:

‘3. Because of the aforesaid finding even though the second appeal of the plaintiffs has been dismissed the Hon’ble High Court took away effect of the concluded findings of fact and left the matter to be re-agitated again which is illegal and improper.’

I have already referred that there is a registered sale deed in favour of the appellant on 14th August 1980 executed in his favour. In the written filed by the defendant, it was stated that the plaintiff is not the owner of the property in question and the plaintiffs was entitled for compensation only on the resumption of the property.

In view of the aforesaid, I have directed that the appellant shall not be evicted from the property in dispute except in accordance with law and he shall get full opportunity to defend himself, if the proceedings are initiated against him.

In view of the aforesaid, no ground for review is made out.

Review application is dismissed.”

14. The appellant has, therefore, approached this Court

by way of these appeals challenging both the decisions of

the learned Single Judge of the High Court, against the

observations made in paragraphs 17 and 18 of the

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impugned judgment dated 28th February, 2008 whilst

dismissing the second appeal and also the judgment dated

19th June, 2008 in Review Application. According to the

appellant, the observations were wholly unwarranted and

are in the teeth of the concurrent finding of fact recorded

by two Courts on the issue of ownership of the property

and also opposed to the settled legal position. It is

contended by the appellant that the suit property was held

by the plaintiff (original respondent) on Old Grant terms

which was classified as B-3 category. The property

changed hands by sale deed dated 2nd August, 1948 from

Charles Gorden Stewart to Mrs. E. Walsh and then from

Mrs. E. Walsh to Sardar Kartar Singh and others vide sale

deed dated 15th December, 1970 and finally from Sardarni

Satwant Kaur to Shri Vijay Krishna Uniyal, plaintiff

(original respondent) vide sale deed dated 14th August,

1980. From these documents, it was evident that the

transferors have had transferred only the buildings in

favour of the transferees and it is clearly stated in each of

these registered sale deeds that the land and trees are the

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property of the Government of India. Thus, the land and

trees could never have been purchased by any of the

transferees. The appellant has relied on the terms of the

Old Grant governed under GGI 170 dated 12th September,

1836, which enabled the Government to resume the Old

Grant after giving one month’s notice. According to the

appellant, the regulations empowering the Governor

General to rescind or substitute authorised orders in force

are statutory regulations. Further, the High Court and the

Subordinate Courts did not find any infirmity in the suit

notice dated 19th August, 1985 which was issued to

resume the suit property. It was, therefore, not open to

the High Court to make any observation which has had

the potential of giving rise to reopening the finding

regarding title and ownership of the property already

adjudicated upon, directly and substantially in the suit for

permanent injunction filed by the plaintiff (original

respondent). According to the appellant, the plaintiff

(original respondent) was not the absolute owner of the

suit property. That factual position was admitted by the

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plaintiff (original respondent) vide registered admission

deed dated 14th August, 1980 and declaration deed dated

14th August, 1980, which unambiguously record that the

ownership right in the suit property was that of Union of

India. Further, it is also declared that the Union of India

had the right to resume the property. These documents

were contemporaneously executed along with the sale deed

dated 14th August, 1980, which was registered on 19th

August, 1980. Further, the plaintiff had raised the issue

of ownership and title on the basis of the registered sale

deed dated 14th August, 1980 and invited the Trial Court

as well as the First Appellate Court to adjudicate the issue

of ownership of the property. Therefore, it is not open to

the plaintiff (original respondent) to now contend that the

said issue was only ancillary to the relief of permanent

injunction as prayed against the appellant to cease and

desist from going ahead with the suit notice dated 19th

August, 1985. Moreover, the plaintiff (original respondent)

in the second appeal invited the High Court to formulate

two substantial questions of law, which were ascribable to

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the concurrent finding of fact, recorded by two Courts

below, about the ownership of the suit property. According

to the appellant, the original respondent did not press or

argue the first substantial question of law before the High

Court, knowing full well that the decision in the case of

Union of India and Ors. Vs. Harish Chand Anand,1

was directly on the point wherein it has been held that the

amount of compensation would be determined under the

relevant provisions after giving opportunity to the

occupant, which could be done even after resuming the

suit property and taking possession. In that,

determination of value of the building erected on the land

under resumption was a ministerial act and the payment

thereof was the resultant consequence. According to the

appellant, on the second substantial question of law, the

two Courts below concurrently found, as of fact, that the

ownership of the suit property was of the Government of

India and it was duly admitted by the plaintiff (original

respondent) in the declaration contemporaneously

1 1995 Supp. (4) SCC 113

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executed at the time of registration of the sale deed in his

favour, dated 14th August, 1980. The appellant relies on

the decisions of this Court in support of the argument that

if the land was covered by the Old Grants and categorised

as B-3, it was open to the Government to resume the land

after giving one month’s notice in terms of the Old Grant

and regulations framed thereunder. Reliance has been

placed on State of U.P. Vs. Zahoor Ahmeda and Anr.,2

Harish Chand Anand, (supra), Chief Executive Officer

Vs. Surendra Kumar Vakil & Ors.,3 Union of India and

Ors. Vs. Kamla Verma,4 Azim Ahmad Kazmi and Ors.

Vs. State of Uttar Pradesh and Anr.,5 Union of India

and Ors. Vs. Robert Zomawia Street,6 Purshottam Das

Tandon (Dead) by Legal Representatives Vs. Military

Estate Officer and Ors.,7 and Usha Kapoor and Ors.

Vs. Government of India and Ors. 8

2 (1973) 2 SCC 547 3 (1999) 3 SCC 555 4 (2010) 13 SCC 511 5 (2012) 7 SCC 278 6 (2014) 6 SCC 707 7 (2014) 9 SCC 344 8 (2014) 16 SCC 481

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15. The appellant would contend that the plaintiff is

entitled only for reasonable compensation for the structure

standing on the suit property. According to the appellant,

the continued possession of the plaintiff (original

respondent) despite such notice is illegal possession. This

view taken by the two Courts below has not been

overturned by the High Court. As a matter of fact, the

High Court dismissed the second appeal on the finding

that it lacked merit. However, by a sweeping observation it

has undermined the concurrent finding of fact regarding

ownership of the subject land recorded by two Courts

below without reversing the same. Thus, the prima facie

opinion noted by the learned Single Judge is contrary to

the indisputable facts and the material on record and as

such, the liberty granted to the plaintiff (original

respondent) to take up the plea of ownership of the

suit property in the proposed eviction action, cannot be

countenanced. That plea would be barred by the principles

of constructive res judicata. In response to the stand taken

by the respondents before this Court, it was contended

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that it is not open to the respondents in these appeals of

the defendant (appellant), to invite this Court to overturn

the concurrent finding of fact in relation to the issue of

ownership of the suit property, having failed to challenge

the decree of dismissal of the suit for relief of permanent

injunction on the basis of title and ownership of the

plaintiff in the suit property. Admittedly, the plaintiff did

not file a suit for appropriate declaration despite the

assertion of the defendant in the suit notice regarding its

ownership. Besides, the plaintiff had clearly admitted the

ownership of the suit property of the Government of India

as stated in the declaration contemporaneously executed

along with the registered sale deed. Admittedly, the sale

deed makes reference to the registered agreement to sell.

The recitals and stipulations in the registered agreement

to sell, executed in favour of the plaintiff, dated 13th

September, 1979 which was prelude to the execution of

the subject registered sale deed is a clear testimony of

admission of ownership of suit land of the appellant. No

declaration has been sought in the suit as originally filed

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or by amending the same that the recitals in the said

documents are illegal and not binding on the plaintiff.

According to the appellant, it is not open to the plaintiff or

persons claiming through or under him to challenge the

concurrent finding of fact relating to the ownership of land

or to insist for sustaining the impugned observation in the

judgment under challenge, without filing an appeal against

the decree rejecting the relief of permanent injunction

which, in fact, has been upheld even by the High Court by

dismissing the second appeal on the finding that it lacked

merit. The appellant prays that the stated observations in

paragraphs 17 and 18 of the impugned judgment and

decree deserve to be set aside and effaced from the record. 16. The respondents (heirs and legal representatives of

the deceased plaintiff – original respondent), however,

contend that these appeals be dismissed as the same do

not raise any substantial question of law of great public

importance warranting interference by this Court. It is

contended by the learned counsel for the respondents that

the High Court was justified in leaving the question

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regarding ownership of the suit property open, with liberty

to the respondents to raise the same in the eviction

proceedings. That was in accord with the dictum of this

Court in Anathula Sudhakar Vs. P. Buchi Reddy (Dead)

by L.Rs. and Ors.,9 Sajjadanashin Sayed MD. B.E. EDR

(D) by LRs. Vs. Musa Dadabhai Ummer and Ors.,10 and

Gram Panchayat of Village Naulakha Vs. Ujagar

Singh and Ors.11 It is also contended that the appellant,

despite the directions of this Court vide order dated 24th

February, 2010, has failed to produce the alleged Old

Grant - which is the core of the dispute and essential to

substantiate the ownership of the land as also the rights of

the plaintiff in that behalf. Reliance is placed on Union of

India Vs. Purushotam Dass Tandon and Anr.,12 to

contend that as the Government has failed to produce the

original old grant, it cannot claim any title in respect of the

suit property. According to the respondents, the terms of

grant can be established only through such document in

9 (2008) 4 SCC 594 10 (2000) 3 SCC 350 11 (2000) 7 SCC 543 12 1986 (Supp.) SCC 720

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terms of Section 97 of the Evidence Act. It is then

submitted that the appellant has produced the original

grant register of Landour Cantonment, which mentions

that the grant in this case was “Fee Simple” under Walsh

Settlement of 1842, indicative of the nature of rights of the

landholders and predecessor in title of the plaintiff.

Additionally, it is submitted that if this Court is inclined to

entertain these appeal, this is a fit case to relegate the

parties before the High Court. Inasmuch as the High Court

though formulated two substantial questions of law, did

not choose to answer the same, much less advert thereto

in the impugned judgment. Reliance is placed on the

decision of this Court in the case of Satyendra Kumar

(Dead) through LRs. Vs. Mast Ram Uniyal (Dead)

though LRs13. According to the respondents, it is open to

them to assail the findings in the judgment under appeal

without filing any cross objection or cross appeal. For that,

reliance has been placed in the case of Ravinder Kumar

Sharma Vs. State of Assam and Ors.14; S. Nazeer 13 (2013) 14 SCC 367 14 (1999) 7 SCC 435

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Ahmed Vs. State Bank of Mysore and Ors.,15 Balbir

Kaur and Anr. Vs. Uttar Pradesh Secondary

Education Services Selection Board, Allahabad and

Ors.,16 and Management of Sundaram Industries

Limited Vs. Sundaram Industries Employees Union17.

17. It is further submitted by the respondents that the

Courts below are not expected to decide the question of

title in an injunction suit. Relying on the observations in

Anathula Sudhakar (supra), it is contended that the

High Court has rightly avoided to examine the issue of

ownership of the suit property and left it open to be

considered if raised by the respondents in eviction

proceedings. Emphasis has been placed on the dictum in

paragraph 21(c) of the aforesaid reported decision in this

behalf. It is then contended that framing of an issue and

rendering a finding on the factum of absolute ownership

was not necessary to decide the suit for injunction,

especially, when the plaintiff had pleaded long occupation,

15 (2007) 11 SCC 75 16 (2008) 12 SCC 1 17 (2014) 2 SCC 600

27

possessory rights and ownership by adverse possession to

describe himself as an owner. It is the appellant who

raised the plea based on an alleged Government Grant

given under GGO 179 of 1836. Thus, the question of

ownership or title was only an ancillary issue to the suit

for injunction and not an essential requirement. Further,

since it was admitted position that the plaintiff (original

respondent) was in possession of the suit property, the

burden to prove that the ownership of the suit property

was of the Government, was on the defendant who had set

up that claim in terms of Section 110 of the Evidence Act.

It is then contended that the finding on title in a suit for

injunction, as in the present case, would not be binding in

a subsequent case for declaration of title and for which

reason also, the observation made by the High Court

cannot be faulted. Reliance has been placed on the

decision of this Court in Sajjadanashin Sayed (supra)

and Gram Panchayat of Village Naulakha (supra). It is

then contended without prejudice that the findings

recorded by the Trial Court and First Appellate Court are

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contrary to the record and untenable in law. It is

submitted that the Trial Court and First Appellate Court

committed palpable error in accepting the unsubstantiated

defence of the appellant on the factum of grant of land was

made under Governor General’s orders (GGO 179 of 1836),

without having produced the relevant official document in

support of that claim. The burden of proving the

ownership of the land was on the appellant (defendant)

which was wrongly shifted to the plaintiff (original

respondent). As a matter of fact, the Courts below ought to

have drawn an adverse inference against the appellant

(defendant). The respondents have placed reliance on the

dictum in Gopal Krishnaji Ketkar Vs. Mahomed Haji

Latif and Ors.,18and National Insurance Co. Ltd., New

Delhi Vs. Jugal Kishore and Ors.,19 to contend that it

was obligatory on the part of the defendant to produce the

documents in their possession. The respondents would

then contend that the Grant Register of Landour

Cantonment (Exhibit 79-C) produced by the appellant

18 (1968) 3 SCR 862 19 (1988) 1 SCC 626

29

(original defendant) reveals that the land in question was

held under Fee Simple, vide Wells Register Order dated

14th October, 1842. That evidence established that the

ownership over the land was of the grantee. Reliance has

been placed on “Words and Phrases legally defined”,

“Halsbury’s Laws of England” and “Black’s Law Dictionary”

in support of this contention. In addition, reliance has

been placed on the dictum of this Court in paragraph 15 of

the judgment in Surendra Kumar Vakil (supra), to

contend that in the present case, the appellant produced

certified extracts of the Grant Register clearly showing that

the grant was absolute and the land was held under Fee

Simple. Reliance is placed on illustration (g) of Section

114 of the Evidence Act to contend that as the land was

held under Fee Simple, terms and conditions applicable in

that behalf would prevail over the rule of law,

statute/enactment of the legislature. In support, reliance

is placed on the decision of this Court in Express

Newspapers Pvt. Ltd. and Ors. Vs. Union of India and

30

Ors.20. The respondents would contend that certain

presumptions would be wrong, on the basis of a book

called “Cantonment Laws” by J.P. Mittal, and such

presumptions were belied by the documentary evidence in

the form of Grant Register (Exhibit 79-C). In reference to

the admission deed/declarations given by the plaintiff

contemporaneously executed alongwith the registered sale

deed, it is contended that the same can neither be

conclusive nor binding. The same have been obtained by

the Cantonment Authorities under mistaken impression of

facts/ law or by suppression of facts and law. Certainly,

that can be no basis to determine the title or ownership of

the suit property. To buttress this submission, reliance

has been placed on Muhammad Imam Ali Khan Vs.

Sardar Husain Khan,21 and on Nagubai Ammal and

Ors. Vs. B. Shama Rao and Ors.,22 as well as in Kishori

Lal Vs. Chaltibai.23

20 (1986) 1 SCC 133 21 (1897-98) 25 IA 161 22 (1956) 1 SCR 451 23 (1959) SCR Suppl.(1) 698 = AIR 1959 SC 504

31

18. The crux of the argument of the respondents in

reference to the documents on record is: being a case of

“Fee Simple” and, therefore, a private estate held in private

ownership built prior to 1882, which was in existence

prior to the establishment of the Landour Cantonmnet, it

must follow that absolute ownership was of the grantee.

Concededly, no such case has been specifically pleaded in

the plaint nor argued before the Trial Court or the

Appellate Courts.

19. According to the respondents, the question regarding

title and ownership of the suit property was a complicated

question of fact and law, which could not be directly or

substantially put in issue in a suit for simpliciter

permanent injunction, which was filed to protect the

possession of the plaintiff. Hence, no fault can be found

with the observations made by the learned Single Judge of

the High Court in paragraphs 17 and 18 to keep the said

issue open, with liberty to the respondents to agitate the

same in the event eviction proceedings are resorted to by

32

the appellant. Hence, the same should not be interfered

with. 20. We have heard Mr. P.S. Patwalia and Mr. A.K.

Sanghi, learned senior counsel appearing for the

appellant, and Mr. C.U. Singh, learned senior counsel

appearing for the respondents.

21. Having given our thoughtful consideration, we find

force in the argument canvassed by both parties that the

High Court has failed to analyse the matter in the manner

it ought to have done whilst dealing with second appeal

under Section 100 of the Code of Civil Procedure, 1908 (for

short, “CPC”) at the stage of final hearing. The High Court

in the present case has not even adverted to the two

substantial questions of law as were framed in terms of its

order dated 14th July, 1999, nor has it analysed the matter

appropriately. Be that as it may, the appellant (defendant)

alone has assailed the impugned judgment. The plaintiff

(original respondent) has acquiesced of the decree rejecting

the relief of permanent injunction, having failed to file

33

cross appeal or for that matter cross objections against the

impugned judgment.

22. After deep cogitation, we think it apposite to first

examine the central issue raised by the appellant. For

that, we must analyse the judgment rendered by the High

Court dated 28th February, 2008. From paragraphs 1 to

14, the Court has adverted to the relevant facts which gave

rise to the filing of the second appeal. Paragraph 15, if

read on its own, would give an impression that the Court

recorded the submission of the counsel for the plaintiff

(original respondent) and rejected the same having noticed

that two Courts below have concurrently found that the

property belongs to the appellant. Indeed, it has done so in

a cryptic manner without proper analysis of the relevant

facts. Further, rejection of that contention was not enough

to answer the two substantial questions of law formulated

in terms of its order dated 14th July, 1999. The

substantial question formulated was whether, in absence

of any other evidence adduced by the defendant, the

34

property can be held to be that of the defendant only on

the basis of the alleged admission of the plaintiff.

23. Be that as it may, the High Court having rejected the

plaintiff’s challenge to the concurrent finding on the issue

of ownership (as is discerned from paragraph 15 of the

impugned judgment) and then finally concluded that the

second appeal lacked merit and dismissed the same, it is

unfathomable how it could then observe that the evidence

in the shape of registered sale deed dated 14th August,

1980 would prima facie show the ownership of the suit

property of the plaintiff. Merely because the possession of

the suit property was with the plaintiff, that by itself

cannot be reckoned as an evidence on the issue of

ownership of the suit property. We must recap that the

claim of the plaintiff for grant of permanent injunction was

founded on his title and ownership of the suit property

because of the registered sale deed dated 14th August,

1980. No doubt, the High Court made reference to the said

document dated 14th August, 1980 for recording its prima

35

facie view about the ownership of the suit property of the

plaintiff. It is also true that the registered sale deed dated

14th August, 1980, does not make any mention about the

fact that the suit property was given to the predecessor in

title of the plaintiff under the Old Grant and classified as

“B-3” category or that it belongs to the Government of

India. Presumably, the High Court proceeded to record its

prima facie view in paragraph 17, relying merely on the

said registered sale deed. It completely glossed over the

crucial fact that the sale deed was the culmination of the

registered agreement to sell executed between the plaintiff

(original respondent) and his predecessor in title dated 13th

September, 1979, to which reference has been made in the

registered sale deed as under:- 24.

“WHEREAS the Vendors have agreed with the purchaser for the absolute sale to him of the said Wolfsburn Estate, situate at Landour Cantt, Mussoorie at a price of Rs.25000/- (Rupees twenty five thousand) only vide agreement dated 13th day of September, 1979 registered as No. 9517 in Book I Volume 1634 on pages 352 to 356 on 23.11.1979 at the office of the Sub Registrar, Dehra Dun.”

36

By reference to the aforementioned registered agreement to sell,

the same got incorporated into the sale deed. The registered

agreement to sell executed in favour of the plaintiff, in no

uncertain terms, admits the fact that the suit property belongs

to the Government and the right which is being transferred is

only the right of enjoyment of possession of the said land

granted under the Old Grant, which enured to the predecessor

in title of the plaintiff. The relevant recital in the registered

agreement to sell reads thus:-

“IT IS HEREBY MADE CLEAR that the land under the Cantonment Survey No.11 of the Wolfsburn Estate hereby and herein transferred belong to the Government of India. Only the rights of enjoyment of possession of the said land granted under the Old Grant and held by late Mrs. Edythe Walsh and after her the said Shri. M.J. Godin as executor and trustee of her will and finally by the vendors are being transferred together with the building structures erected and standing thereon by the vendors to the purchaser. The trees standing in the said Wolfsburn Estate also belong to the Government of India and only the right to enjoy the usufruct is the subject matter of the same in the said trees.”

(emphasis supplied)

25. Notably, this registered agreement to sell refers to the

title and interest of the previous owner of the suit property

which was derived by him from the immediate predecessor

37

in title in terms of registered sale deed dated 15th

December, 1970. Indisputably, even the said registered

sale deed dated 15th December, 1970 between Shri. M.J.

Godin and Sardar Kartar Singh and five others restates

the fact that the suit property belongs to the Government,

with limited right to enjoyment of possession thereof, as

can be discerned from the recitals in the said deed, which

reads thus:-

“IT IS HEREBY MADE CLEAR that the land under the Cantonment Survey Number 11 of the Wolfsburn Estate property herein transferred belong to the Government of India. Only the rights of enjoyment of possession of the said land granted under the Old Grant and held by the late Mrs. Edythe Walsh deceased and after her the Vendor as the Executor and Trustee of her Will together with the building structures erected and standing thereon are being transferred by the Vendor to the Purchasers by virtue of this Deed. Similarly the trees standing in the said Wolfsburn Estate also being to Government of India and only the right to enjoy the usufruct is the subject matter of the sale in the said trees.”

26. There is one more registered sale deed which has

come on record, between Mr. Charles Gorden Stewart and

Mrs. E. Walsh dated 2nd August, 1948. The same has

bearing on the issue of ownership of the suit property.

Even this sale deed concededly restates that the suit

38

property vests in the Government. The relevant recital

reads thus:-

“WHEREAS the land appertaining to Wolfsburn Estate and the trees standing thereon / vest in Government. The purchaser herebefore declares that she shall execute and register at her own expense a deed of Admission in favour of Government.”

27. Indubitably, the plaintiff acquired the suit property

under the registered sale deed dated 14th August, 1980 on

the same terms and, therefore, executed the admission

deed and declaration contemporaneously at the time of

registration of the sale deed on 19th August, 1980. The

admission deed executed by the plaintiff reads thus:-

“ADMISSION DEED

I, Vijay Krishna Uniyal, son of Pandit Maheshanand Uniyal, at present staying at 4, Elspath Collage, Masonic Lodge Road Mussoorie and holder of occupancy rights of Wolfsburn Estate, Cantonment Survey No. 11, Landour Cantonment, Mussoorie admeasuring 3.398 acres do hereby admit the proprietary title of Government of India in the land as well as in the trees standing thereon occupied by me and pertaining to the above mentioned property as shown in the Survey plan subject to the proprietary title of Government of India, the land which is held by me on ‘Old Grant’ terms (GGO 179 of 12.9.1836) nothing in the admission is to prejudice the rights, privileges and easements hereinafter enjoyed by me or by my successors interest in the aforesaid land.

The land is bounded on the

North by – Survey No.13.

39

South by – Survey No.16

East by – Survey No.170

West by – Road

Sd/-

(VIJAY KRISHNA UNIYAL) Holder of occupancy rights

Witness

1 Paratap Singh, 24 Chaman Estate Mussoorie 2 Sd/- Trim Lodge Mussoorie”

Similarly, the declaration deed executed by the plaintiff reads

thus:-

“ DECLARATION DEED

I, Vijay Krishna Uniyal, son of Pandit Maheshanand Uniyal, at present staying at 4, Elspath Collage, Masonic Lodge Road Mussoorie and owner of Wolfsburn Estate, Cantonment Survey No.11, Landour Cantonment, Mussoorie admeasuring 3.398 acres do hereby declare on oath:-

a That I admit Government’s rights to the resumption of the property

b That in case of resumption I will be paid compensation for the authorized structures only, as assessed by the Department under the normal procedure and the sale price should not form basis for compensation; and

c That I would be treated as holder of property and there will be no sub-division.

Sd/- (VIJAY KRISHNA UNIYAL)

Holder of occupancy rights 14.8.1980

Witness

40

1 Paratap Singh, 24 Chaman Estate Mussoorie 2 Sd/- Trim Lodge Mussoorie”

28. The plaintiff, advisedly, after receipt of the suit notice

dated 19th August, 1985, wherein it is asserted that the

suit property is Government land given under Old Grant

classified as “B-3” category and that the Government

wants to resume the same, chose to file suit simpliciter for

permanent injunction against the appellant (defendant)

from dispossessing the plaintiff from the suit property

pursuant to the suit notice. In the wake of clear stand

taken in the suit notice, the plaintiff ought to have filed

the suit for a declaration that the claim set-up by the

defendant in the suit notice of ownership of the suit

property is illegal. Obviously, the plaintiff was aware that

the only right passed on to him was for enjoyment of the

suit property granted under the Old Grant as class “B-3”.

The land belonged to the Government of India.

29. Indeed, the plaintiff did set up a claim of ownership

of the suit property, firstly, on the basis of registered sale

deed dated 14th August, 1980; secondly, having

41

occupancy rights in the suit property which was analogous

to ownership rights; and thirdly, that the plaintiff has full

ownership rights by adverse possession over the suit

property being in long and undisturbed possession

without payment of any rent for over 60 years. As regards

the claim of absolute ownership of the plaintiff on the

basis of rights derived under the registered sale deed dated

14th August, 1980, the same cannot be countenanced. In

the backdrop of the factual position emerging from the

registered agreement to sell dated 13th September, 1979,

which preceded the execution of the subject registered sale

deed dated 14th August, 1980, the plaintiff executed the

admission deed and declaration deed contemporaneously

with full understanding and knowledge. The High Court

while recording prima facie opinion in paragraph 17, has

not adverted to these essential facts and documents. Had

the High Court adverted to these facts and indisputable

evidence which were taken into account by the Trial Court

and the First Appellate Court, it could have never recorded

such prima facie observation in favour of the plaintiff,

42

about the ownership of the suit property. The appellant

(defendant) is, therefore, justified in challenging the prima

facie opinion noted in paragraph 17 of the impugned

judgment. That observation has been made despite having

upheld the concurrent finding on the issue of ownership of

the suit property rendered by two Courts below, as noted

in paragraph 15 of the impugned judgment. The appellant

must, therefore, succeed in this appeal to the extent that

the first sentence in paragraph 17 should be effaced. As

that observation was the foundation to give liberty to the

plaintiff to agitate the question of title over the suit

property in the event the plaintiff was required to face

eviction proceedings, the said liberty would also get

effaced. In that event, it will not be permissible for the

plaintiff or persons claiming through or under the plaintiff,

to raise the issue of ownership of the suit property in any

proceedings henceforth or for that matter in collateral

proceeding.

43

30. The respondents (successors in title of the plaintiff),

relying on other documents and precedents, would

contend that the issue of title and ownership of the suit

property was not directly and substantially involved in the

suit for permanent injunction simpliciter filed by the

plaintiff. Thus, it would be open to the plaintiff or persons

claiming through or under him to raise the issue of title of

the suit property in collateral proceedings, such as

eviction from the suit property. This argument deserves to

be rejected. In the present case, the plaintiff challenged

the suit notice dated 19th August, 1985, on the assertion

that he is the absolute owner in possession of the suit

property on the basis of a registered sale deed dated 14th

August, 1980. By this assertion, the plaintiff implicitly

denied the claim of the appellant-defendant that the suit

property belonged to the Government and was given under

Old Grant falling in class B-3. Besides that assertion in

the suit notice, the appellant-defendant had also

unambiguously asserted in the written statement filed to

contest the suit stating that the suit property belonged to

44

the Government of India and was given to the grantee

under Old Building Grants falling in class B-3, amenable

to resumption after giving one month’s notice. In the

backdrop of such pleadings, the Trial Court framed issues,

including relating to ownership of the suit property. Issue

No.1 was whether the plaintiff was the absolute owner of

the suit property as was asserted by him and, if so,

whether the property being a private estate could not be

resumed by the Government on the assumption that it is

Government land. Similar contest was carried before the

First Appellate Court. Even the First Appellate Court after

analysing the documents Exhibits 20C, 27C, 35C, 38C

and 39C, amongst others, held that it has been admitted

by the plaintiff that the suit property vests in the

Government of India which was amenable to resumption

on payment of compensation for construction to the

grantee/occupant. The First Appellate Court, in no

uncertain terms, concluded that the suit property

belonged to the Government of India and the plaintiff was

not the owner of the suit property but merely enjoyed right

45

to possession thereof under the Old Grant as derived by

him from his predecessor in title. Thus, it is not a case of

ancillary issue examined by the civil court of limited

jurisdiction called upon to consider the relief of permanent

injunction simpliciter. It was a direct and substantial

issue considered by the Trial Court and upheld by the

First Appellate Court and for that matter, even by the High

Court, while dismissing the second appeal on the ground

that it lacked merit, as can be discerned from paragraphs

15 and 19 of the impugned judgment. In the fact situation

of the case on hand, it was not a complicated issue on

facts or law, considering the indisputable recitals in the

registered agreement to sell and the registered sale deeds

coupled with the admission deed and the declaration deed

contemporaneously executed by the plaintiff. In such a

situation, the finding of fact recorded against the plaintiff

will bind the plaintiff and operate as constructive res

judicata in a subsequent suit for declaration of title or

otherwise.

46

31. The respondents have relied on the dictum in

Anathula Sudhakar (supra). We fail to understand as to

how this decision will be of any help to the respondents

(successor in title of the plaintiff). In that case, the Court

summarized the legal position on the question as to

whether the averments regarding title can be considered in

a suit for injunction simpliciter in absence of pleadings

and issue relating to title. The respondents, however, have

selectively relied on the last sentence of paragraph 21(c) of

the reported decision, while overlooking the earlier part of

the same paragraph. Paragraph 21 (c) reads thus: “21. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:

(a) xxx xxx x xx

(b) xxx xxx x xx

(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar24). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.”

24 Annaimuthu Thevar v. Alagammal, (2005) 6 SCC 202

47

The Court has noted that a finding of title cannot be recorded in

a suit for injunction unless there are necessary and appropriate

issues regarding title. This presupposes that it is not

impermissible to do so. Further, where the averments regarding

title are absent in a plaint and where there is no issue relating

to title, the Court will not investigate or examine or render a

finding on a question of title in a suit for injunction. In the

present case, however, we find that not only there are clear

pleadings relating to title but both sides proceeded with the trial

on that assertion and invited the Court not only to frame issue

regarding ownership and title in the suit property but also

produced evidence in support of their respective claim in that

behalf, which has been duly analysed by the Trial Court and the

First Appellate Court. In the last sentence in paragraph 21(c) of

the reported decision, no doubt, this Court has observed that

the parties must be relegated to the remedy of a comprehensive

suit by way of title instead of deciding that issue in a suit for

injunction. However, that may be necessary in matters involving

48

complicated questions of fact and law relating to title. In the

present case, as observed earlier, the issue regarding title and

ownership was directly put in issue and was a substantial issue

adjudicated by the Court albeit in a suit for simpliciter

injunction. It was not a complicated issue either on facts or in

law. It has been rightly answered on the basis of admitted and

indisputable facts discerned from the registered documents,

admission deed, declaration deed and other documents. The

decision in the case of Gram Panchayat of Village Naulakha

(supra), is on the facts of that case, as is discerned from

paragraphs 3 and 9 to 11 of the reported decision. The decision

in the case of Purshottam Das Tandon, (2014) 9 SCC 344, is

also on the facts of that case. The Court found that the claim of

ownership of land was a contentious issue and was left open by

the High Court in writ jurisdiction to be adjudicated by a

competent civil court. In the present case, the fact situation

leaves no manner of doubt that the issue of ownership of the

suit property was directly and substantially put in issue before

the civil court and was made subject matter of the suit.

49

32. Even the decision in the case of Sajjadanashin

Sayed (supra), will be of no avail to the respondents. In

paragraph 18, the Court has considered the issue under

consideration and noted that one has to examine the

plaint, the written statement, the issues and the judgment

to find out if the matter was directly and substantially in

issue. Paragraph 18 of the said decision reads thus:-

“18. In India, Mulla has referred to similar tests (Mulla, 15th Edn., p. 104). The learned author says : A matter in respect of which relief is claimed in an earlier suit can be said to be generally a matter ‘directly and substantially’ in issue but it does not mean that if the matter is one in respect of which no relief is sought it is not directly or substantially in issue. It may or may not be. It is possible that it was 'directly and substantially' in issue and it may also be possible that it was only collaterally or incidentally in issue, depending upon the facts of the case. The question arises as to what is the test for deciding into which category a case falls? One test is that if the issue was ‘necessary’ to be decided for adjudicating on the principal issue and was decided, it would have to be treated as ‘directly and substantially’ in issue and if it is clear that the judgment was in fact based upon that decision, then it would be res judicata in a latter case, (Mulla, p. 104). One has to examine the plaint, the written statement, the issues and the judgment to find out if the matter was directly and substantially in issue (Ishwer Singh v. Sarwan Singh and Syed Mohd. Salie Labbai v. Mohd. Hanifa25). We are of the view that the above summary in Mulla is a correct statement of the law.”

(emphasis supplied)

25 (1976) 4 SCC 780

50

33. In the present case, we have adverted to the plaint,

written statement, the issues framed by the Courts below

and the judgments directly and substantially adjudicating

the issue of title and ownership. Realizing this difficulty,

the respondents relying on the decisions of this Court in

Ravinder Kumar Sharma (supra); S. Nazeer Ahmed

(supra), Balbir Kaur (supra); and Management of

Sundaram Industries Limited (supra), would contend

that it is open to the respondents to challenge the adverse

findings recorded by the two Courts below on the issue of

title and ownership of the suit property, without filling a

formal cross objection in the present appeals. We are

conscious of the fact that the plenary jurisdiction of this

Court under Article 136 of the Constitution is not limited

to the dispensation provided in Order XLI Rule 22 of CPC.

However, permitting the respondents to assail the findings

of the Courts below on the issue of ownership of property

would be to overlook the cardinal principle that the Court

would not ordinarily make an order, direction or decree

placing the party appealing to it in a position more

51

disadvantageous than in what it would have been had it

not appealed [see Management of Sundaram Industries

Limited (supra), para 20]. Further, the impugned

judgment of the High Court dismissing the second appeal

was certainly not in favour of the plaintiff. It was to

uphold the decree and order rejecting the relief of

permanent injunction. Therefore, the argument now

canvassed by the respondents will not be for sustaining

the operative order or decree passed by the High Court as

such. For, if accepted, it will inevitably entail in not only

reversing the concurrent findings recorded by the Courts

below on the issue of ownership but would also necessitate

reversal of the decree passed by the Courts below rejecting

the relief of permanent injunction. That could be done only

if the plaintiff were to challenge the decree of rejection of

the relief of permanent injunction in reference to the suit

notice. Absent such a challenge by way of an appeal or

cross objection, the decree to be sustained will be that of

the First Appellate Court of partly allowing the appeal of

the plaintiff (original respondent) to the extent of claim of

52

compensation on the premise that the plaintiff will get

compensation towards construction in terms of the

regulations. A priori, the decisions relied upon by the

respondents in the case of Balbir Kaur (supra), S. Nazeer

Ahmed (supra), Panchayat of Village Naulakha (supra),

and Ravinder Kumar Sharma (supra), will be of no avail

to the respondents. Moreover, permitting the respondents

to argue beyond the facts admitted in the registered

agreement to sell and the registered sale deeds and the

admission deed as well as the declaration deed, will be to

encourage an argument that the plaintiff has derived title

in the suit property more than what his predecessors in

title have had enjoyed - of occupancy/possessory rights

alone. The maxim - Nemo dat quod non habet must be

borne in mind, which means no one gives what he does

not possess. For the view that we have taken, we find no

legal basis to relegate the parties before the High Court for

fresh consideration of the second appeal.

53

34. The legal position regarding the efficacy of the Old

Grant falling in class B-3 has been examined in successive

decisions by this Court, as pressed into service by the

appellant and lastly in Usha Kapoor (supra). This

decision has considered all the earlier decisions of this

Court on the point including those relied upon by the

respondents. Even in the reported case, the Old Grant was

falling in class B-3. The Court adverted to all the earlier

decisions including the elucidation from the book on

Cantonment Laws by J.P. Mittal, to which reference was

made by the respondents - to restate the legal position

that the terms of the tenure granted under Order No.179

dated 12th September, 1836 was that the ownership of the

land remained with the Government and the land cannot

be sold by the grantee. The original grantee is vested with

the right to build a house/structure on the land and he

may only transfer the same. Such transfer would require

the consent of the Commanding Officer when the transfer

is to a person not belonging to the Armed Forces. The

right to resume the land at any time after following the

54

procedure prescribed has expressly been recognized to be

vesting in the Government. The status of the holder of

class B-3 land has also been adverted to in paragraphs 14

and 15 of the said decision. It is true that in the present

case, the appellant (defendant) did not produce the Old

Grant in relation to the suit property, but had produced

the GLR extract. It is well settled that GLR extract is

conclusive of the fact that the land is covered by Old

Grant and the rights enjoyed by the plaintiff were merely

possessory or occupancy rights in respect of the structures

thereon. It is not necessary to dilate on the other

authorities which are already considered in this decision.

35. Suffice it to observe that in absence of any challenge

to the judgment and decree passed by the High Court in

second appeal rejecting the second appeal on the ground

that it lacked merit, the respondents (successors in title of

the plaintiff) can neither succeed nor can be permitted to

agitate before this Court about the correctness of the

finding recorded by the Courts below on the issue of

55

ownership of the suit property of Government of India and

that the plaintiff is not the absolute owner thereof. The

finding of fact so recorded will bind the respondents. The

only issue that has been left open in terms of the decree

passed by the First Appellate Court and upheld by the

High Court consequent to rejection of the second appeal, is

about determination of compensation for the structure in

terms of the Old Grant and regulations in relation thereto. 36. The appellant has rightly relied upon the decisions of

this Court which have exposited that determination of

appropriate and reasonable compensation can be done

even later by referring the matter to the Arbitrator as per

the regulations (see Harish Chand Anand (supra), paras

2 and 5) . That, therefore, cannot come in the way of the

appellant to proceed further on the basis of the suit notice

dated 19th August, 1985, the validity whereof is

unassailable.

37. Notably, on a close reading of the liberty given by the

High Court to the plaintiff, it is plain that the liberty is

limited to raise the issue of title relating to the suit

56

property in the event any eviction proceedings are resorted

to by the appellant. Such liberty, as is well settled will be

hit by principles of constructive res judicata in the fact

situation of this case. Further, it is certainly not a liberty

to file a fresh suit for declaration of title and ownership,

which the plaintiff ought to have filed earlier or at least

amended the suit by seeking appropriate declaration.

38. For the view we have taken, it is not necessary to

burden this judgment with other authorities and

contentions pressed into service by the parties, to avoid

prolixity of this judgment.

39. Accordingly, these appeals must succeed. We are in

agreement with the grievance of the appellant that the

High Court, having upheld the concurrent finding of fact

on the issue of ownership of the suit property and

dismissed the second appeal on the ground that it lacked

merit, should have eschewed from making observations as

made in paragraphs 17 and 18 of the impugned judgment.

Further, on the basis of such observations, the High Court

unjustly granted liberty to the plaintiff (original

57

respondent) to raise the issue of title in the event eviction

proceedings are initiated against him. The High Court also

committed manifest error in clarifying that if such a plea

was raised, the same ought to be decided without being

influenced by the findings given by the Trial Court.

40. Accordingly, we set aside the aforementioned

observations made by the High Court in paragraphs 17

and 18 of the impugned judgment dated 28th February,

2008 in Second Appeal No.206 of 2001. For the same

reasons, we also set aside the impugned judgment and

order dated 19th June, 2008 in Miscellaneous Review

Application No.668 of 2008.

41. A priori, in furtherance of notice dated 19th August,

1985 the appellant is free to take possession of the suit

property in accordance with law. However, the

respondents are granted time to hand over vacant and

peaceful possession of the suit property until 31st

January, 2018.

58

42. We clarify that if the respondents have any grievance

regarding the quantum of compensation determined by the

Arbitrator in respect of the structures standing on the suit

property, it will be open to them to pursue appropriate

legal remedies as per law.

43. The appeals are allowed in the above terms with no

order as to costs.

…..……………………..……….J. (Kurian Joseph)

…..……………………..……….J. (A.M. Khanwilkar)

New Delhi; October 23, 2017.

UNION OF INDIA Vs VIJAY KRISHNA UNIYAL (D) THR. LRS

UNION OF INDIA Vs VIJAY KRISHNA UNIYAL (D) THR. LRS