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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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