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REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.   6194   OF 2013 (arising out of SLP (C) No.2933 of 2010)

UNION OF INDIA & ANR.        … APPELLANTS

VERSUS

DINSHAW SHAPOORJI ANKLESARI  & ORS.       … RESPONDENTS

J U D G M E N T  

Sudhansu Jyoti Mukhopadhaya, J.

This appeal is directed against the judgment dated 25th November,  

2009 passed by the High Court of Judicature at Bombay in Civil Revision  

Application No.272 of  2009.  By the impugned judgment the High Court  

dismissed the Revision Application and affirmed the judgment and decree  

passed by the Appellate Court and the Trial Court.

2. The dispute relates to the piece of property bearing GLR Survey No.  

258, admeasuring 0.90 acres which comprise of superstructure consisting  

of  main  bungalow,  servant  quarter  and  garage  situated  at  Elphinstone  

Road,  Pune  Cantonment,  Pune  (hereinafter  referred  as  the  “suit  

premises”).

3. The  case  of  the  appellants  is  that  the  suit  premises  as  aforesaid  

belongs to the appellants – “Pune Cantonment Board”.  The  Governor-

General by its order No.14(G.G.O.-14) dated 6th January,  1827 intimated  

that officers  not provided with public quarters may receive permission to

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erect  houses  within  fortress or  military  cantonment  conferring  on them  

right of property whatever in the ground allotted to them for that purpose,  

which will continue to be  the property of the State, and resumable at the  

pleasure   of  the  Government.    The  plot  admeasuring  0.90  acres  (suit  

premises)  in  question  was  initially  granted  to  one  Nusserwanji  Sorabji  

Anklesaria who erected superstructure, including the Bungalow in question.  

In  the  year  1891  he  bequeathed  the  suit  bungalow no.1A,  Elphinstone  

Road to his son Maneckhji Nusserwanji Anklesaria.  The name of  Maneckhji  

Nusserwanji  was  registered  in  General  Land  Register.   Therein  it  was  

mentioned that the bungalow in question is held under old grant under  

conditions of GGO 14 dated 6th January, 1827.

4. An agreement  for  occupation by Government  of  the property  in  a  

cantonment  not  requisitioned  under  the  Cantonment  (House  

Accommodation) Act  known as “Repairing Lease” was entered between  

Maneckji Nasserwanji Anklesaria in one part (First Part)  and the Governor  

General  in  Council  on  the  other  (Second  Part)  on  29th August,  1941,  

whereunder property described in Schedule I thereto i.e. Bungalow No. 1-A  

with servant quarter, garage, etc. was given in possession to the second  

part  (i.e.  Governor  General  in  Council)  for  a  consideration  of  monthly  

payment of Rs.196/- payable on the first of every month,  the first of such  

payment being made on  the first day of August, 1941.   As per the said  

agreement,  the appellants were  required to maintain the premises i.e.  

Bungalow No. 1-A with servant quarter, garage etc..  It was agreed upon  

that if by  reason of fire or tempest or other cause not occurred by the  

willful act or default of the party on the second part,  the premises or any

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part or parts thereof or was in the opinion of the party on the second part  

is rendered uninhabitable at any time, the said agreement in force, then  

until the premises or such part and parts thereof as are affected shall be  

restored or rendered fit for reoccupation to the satisfaction of the party on  

the second part.  

5. Subsequently,  by an Indenture of  Sale dated 12th November,  1968  

between  Manekji  Nassurwanji  Anklesaria  and two others  and plaintiffs-

respondents,  Dinshaw Shapurji Anklesaria and two others it was agreed to  

sell and purchase the lease-hold rights being perpetual grant under the old  

grant of the Pune Cantonment  Board  over the suit premises including the  

bungalow,  servant quarters’ garage, etc.  with full rights of ownership of  

the building for  total consideration of Rs. 60,000/-.  In the said “Indenture  

of Sale” it was narrated that necessary permission on that behalf had been  

received from the authorities concerned by letter no. 201125/Q(PP) dated  

14th June, 1968,  signed by the General Officer Commanding in Chief, Head  

Quarter, Southern Command.

6. The admission certificate with regard to suit premises was issued by  

the plaintiffs-respondents  on 19th April,  1971 in  favour  of   the  Military  

Cantonment Estate Officer, Poona Circle, Pune.  

7. According to appellants,  as per terms of old grant, the appellants  

decided to resume the said property and, therefore, issued notice from its  

Ministry of Defence being Notice No. 701/27/L/L&C/71/3606/D(Lands) dated  

11th June, 1971 to plaintiffs-respondents intimating the intention to resume  

the suit premises and also informed  that the appellants  are ready to pay  

a compensation of  Rs.31,537/-  as the value of the  authorized erection

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made on the said land.  The plaintiffs-respondents were informed that in  

case the amount of compensation offered is not acceptable to them, the  

committee  of  Arbitration  will  be  convened  to  assess  the  value  of  the  

authorized erection on the land.   The cheque for  the said  amount  was  

attached  with  the  aforesaid  notice.   The  symbolic  possession  of  the  

bungalow in question was taken on 12th July, 1971.

8. After about two years, the respondent filed Special Civil Application  

No. 1536/1973 challenging the resumption notice dated 11th June, 1971.  

Some other individuals who erected bungalows on similarly situated lands  

which  were  also  resumed,  also  filed  similar  special  civil  applications  

including Special Civil Application No. 1286 of 1972, etc..

9. By judgment and order dated 5th February, 1979, the Bombay High  

Court allowed the Special Civil  Application No.1286/1972 being Phiroze  

Temulji Anklesaria Vs. H.C. Vashistha & Others, AIR 1980 Bom 9  

and set aside the notice of resumption. The High Court held that there is  

no evidence whatsoever of the Government’s right to resume the land in  

possession and the terms under which right of such resumption, if  any,  

could  be  exercised.   It  further  held  that  most  importantly  there  is  no  

evidence of  the right  or  power of  Government  to  acquire  the structure  

standing on the land in question by arbitrarily or unilaterally determining  

compensation.   

10. Relying  on  the  aforesaid  judgment,  writ  petition  preferred  by  the  

plaintiffs-respondents in Special  Civil  Application No.1536/1973 was also  

allowed by judgment dated 27th February, 1979.

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11. Being  aggrieved  by  judgments  passed  in  various  special  civil  

applications whereby the High Court set aside the resumption notices, the  

Union of India filed  SLP(C) Nos.498-511/1980 before this Court.   Against  

the judgment dated 27th February, 1979 passed in the case of plaintiffs-

respondents in SCA No. 1536/1973 the defendants-appellants filed SLP(C)  

No.503/1980 .

12. By  order  dated  19th March,  1980  leave  was  granted  in  SLP(C)  

Nos.498-511/1980  and  they  were  renumbered  as  Civil  Appeal  Nos.608-

621/1980.   

SLP(C)  No.503/1980  filed  by  the  appellants  against  the  judgment  

dated 27th February, 1979 passed in the case of the plaintiffs-respondents  

was renumbered as Civil Appeal No.613/1980 after admission.

13. Phiroze Temulji Anklesaria-petitioner in Special Civil Applications Nos.  

1286/1972, 1487/1972, 1486/1972 and 1484/1972 had filed civil suits for  

rent and possession against the Government of India before CJSD, Pune.  

Same were numbered as Civil Suit No.477/1980, 476/1980, 488/1980 and  

475/1980.

The  said  suits  were  decreed  by  the  CJSD,  Pune  relying  upon  the  

decision  of  the  Bombay  High  Court  in  Phiroze  Temulji  Anklesaria  

(supra).   

14. Against  the  aforesaid  judgment,  the  appellants  filed  appeal  

Nos.1159/1984, 1160/1984 and 1161/1984. Cross Appeal No.1/1985, Cross  

Appeal  No.2/1985,  Cross  Appeal  No.3/1985  were  also  filed  in  those  

appeals.  Second Appeal Nos.15 and 16 of 1989 were subsequently filed  

before the Bombay High Court.

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When Civil  Appeal  Nos.  608-621/1980  preferred  by  the  appellants  

against the original judgment in Phiroze Temulji Anklesaria (supra) reached  

for final hearing before this Court, the abovementioned appeals preferred  

before the Bombay High Court were called for by this Court on the ground  

that they were interconnected.  

As a result  appeals  covered by SCA No.1286/72,  SCA No.1486/72,  

SCA No.1487/72, SCA No.1484/72, SCA No.1485/72 got transferred to this  

Court and numbered as Transferred Case Nos.67 to 72 of 1985 and 11 &  

12 of 1987.

15.  Transferred Case Nos. 67 to 72 of 1985 and 11&12 of 1987 titled  

Union  of  India  & Others  v.   P.T.  Ankleshwar  (dead)  by  LRs.  &  Ors.  on  

hearing were remitted back to the High Court for disposal by this Court on  

20th July, 1988, with the following directions:   

“1. While considering the merit of the case,  the High Court shall   not place any reliance upon the Division Bench judgment of the High   Court consisting of D.H. Rege and R.A. Jahangir, JJ. rendered in Special   Civil Application No. 1286/72 decided on 6/6 February, 1979 against   which appeals are pending in this Court.

2. While considering the case, if  the High Court finds that the trial   court  or  the first  appellate  court  has  placed reliance or  made any   reference to the aforesaid judgment of the Division Bench,  it  shall   ignore that judgment, to that extent, and the High Court shall decide   the  matter  afresh  in  accordance  with  law  without  taking  into  consideration or being influenced by the aforesaid judgment of  the   Division Bench.

3. The parties will be at liberty to adduce additional evidence before   the High Court within the period fixed by the High Court.”

16. Civil Appeal Nos. 608-621 of 1980 titled Union of India & Others v.  

P.T. Ankleshwar (dead) by LRs. & Ors. were subsequently taken up by this  

Court and in the light of observation made on 20th July, 1988 in Transferred  

Case Nos.67 to 72 of 1985 and 11&12 of 1987, as quoted above, by order

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dated 25th March, 1992, this Court declared the appeals to be infructuous  

without prejudice to whatsoever rights to which the appellants are entitled  

in law.

17. The respondents, thereafter, filed Civil Application No.3382 of 1992 in  

Special Civil Application No.1536 of 1973 before the Bombay High Court  

for possession of the suit premises. The Bombay High Court by its order  

dated 11th September, 1992 directed the appellants to handover symbolic  

possession  of the suit premises bearing survey no.258, Bungalow No.1-A  

situated at Elphinstone Road, Pune Cantonment, Pune to the respondents.  

18. The appellants filed a review application before this Court for review  

of  order  dated 25th March,  1992 passed in Civil  Appeal  Nos.608-621 of  

1980 on the ground that only the civil appeals connected with transferred  

cases in which the issue of ownership of land and building were interlinked  

with validity of resumption notices had become infructuous.   In other Civil  

Appeal Nos.620, 610, 613 (the appeal preferred against the judgment in  

the case of plaintiffs-respondents), 614, 618, 609 and 621 of 1980, the  

issue of ownership of land and building was not interlinked with validity of  

resumption notices and hence the same had not become infructuous.  

19. By  the  order  dated  13th November,  1995,  this  Court  allowed  the  

review application thereby modifying  the order  dated 25th March,  1992  

passed in Civil Appeal Nos.608-621 of 1980 by setting aside the order of  

dismissal of the aforesaid civil  appeals as infructuous as there were no  

eviction decrees obtained by any of the bungalow owners.  

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20. The aforesaid civil appeals including Civil Appeal No.613 of 1980 filed  

by the Union of India against the plaintiffs-respondents were taken up for  

hearing on 4th August, 1998 when the following order was passed:

“Learned Solicitor General states that the Union of India would seek   dispossession of  the respondent  – occupants  from the properties   involved in accordance with  law and if  need be, through a Civil   Court by filing suits.  In case such steps are taken, any observations   made by the High Court which would stand to defeat the remedies   sought would not stand in its way.  On such stance of the Union of   India,  Civil  Appeals  as  also  the  special  leave  petitions  stand   disposed of accordingly.”

21. The plaintiffs-respondents thereafter filed suit for possession, arrears  

of  rent  and  damages  against  the  defendants-appellants  in  the  Small  

Causes Court at  Pune numbered as Civil  Suit No. 695 of 1999.  It  was  

contended  therein  that  the  defendants-appellants  served  resumption  

notice  upon  the  plaintiffs-respondents  which  was  challenged  by  the  

plaintiffs-respondents before the Bombay High Court in SCA No.1536 of  

1973 which was allowed and the resumption notice  was declared void,  

inoperative and without legal effect.  The said order of the High Court was  

affirmed  in  Civil  Appeal  No.613  of  1980.   The  appellants  filed  review  

application  and  the  same  was  disposed  of  recording  the  statement  of  

learned Solicitor General.  An Order which was passed by the High Court  

with  respect  to  resumption  notice  was  not  set  aside.   Therefore,  the  

occupation of defendants-appellants in the said property is that of lessee.  

The plaintiffs-respondents are, therefore, entitled to ask for possession of  

the property from the defendants-appellants as the defendants are trying  

to set up adverse title.  

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22. The  defendants-appellants  contested  the  suit  by  filing  detailed  

written  statement.   It  was  brought  to  the notice  of  the  Court  that  the  

property was held on old grant terms, therefore the Government of India  

has every right to resume the property.  It was also contended that the  

Government has resumed the property and the plaintiffs-respondents have  

no right to ask for possession.  It  was also contended that the Military  

Authorities  have  made  a  plan  to  demolish  the  present  structure  and  

construct a new building for accommodation of its officers and therefore,  

repair for the suit premises was not under taken.   

23. In the said suit the Trial Court framed the following issues:

1) Do  plaintiffs prove that they are landlords and the  defendants are tenants of the suit premises?

2)  Do they prove that the defendants have committed  breach  of  agreement  of  lease  by  not  maintaining  the  property and by causing damage to it?

3)    Do they prove that the defendants have disowned  the title of the plaintiff and thereby committed breach of  the agreement of lease?

4)   Do  they prove  that  the  defendants  have caused  damage to the extent of Rs.4 lac to the suit property?

5)   Do they prove that the defendants are in arrears of  rent since 1.7.1971 to 30.6.1999 at the rate of Rs.196/-  per month?

6)   Whether this Court has jurisdiction to entertain, try  and decide this suit?

7)   What is due to the plaintiffs?

8)  What relief, order and decree?

24. By judgment and decree dated 9th June, 2005, the Trial Court partially  

decreed  the  suit  on  the  ground  of  breach  of  terms  and  conditions  of  

tenancy i.e. non-repair of the suit premises.

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The Trial Court directed the defendants-appellants to handover the  

vacant  and  peaceful  possession  of  the  suit  premises  together  with  

structure consisting of main bungalow, servant quarter, garage and any  

other structure thereon to the plaintiffs-respondents.

24.1 With reference to issue nos.1 and 6, it was held that in view of sale  

deed dated 12th November, 1968 in favour of the Maneckji Ankesaria, the  

consent letter dated 19th December, 1967 and the lease agreement dated  

29th August, 1941 the plaintiffs were only holders of occupancy rights in  

respect  of  the  land  and  were  owners  of  the  superstructure.   The  

defendants were tenants and hence the suit was between the landlord and  

the tenant and the Small Causes Court has jurisdiction to entertain, try and  

decide the same.

24.2 The issue no.3 was answered in negative with observation that the  

defendants have legal right of resumption.  Mere exercise of such right  

does not mean that the defendants have denied the lease hold right over  

the land and ownership of the superstructure of the plaintiff.   

24.3 Issue no.5 regarding the defendants being in arrears of rent since  

17th July, 1979 to 30th June, 1999 @ Rs.196/- per month was answered in  

negative with the observation that there was no willful default on part of  

the defendants and the defendants have deposited arrears of rent along  

with interest there on @ Rs.9% per annum before the date of hearing of  

the suit.  Thus, defendants are entitled to protections of eviction as per the  

provisions of sub section 3 of Section 12 of the Bombay Rent Act.   The  

defendants were not in arrears of the rent on the date of hearing of the  

suit.  

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24.4 The issue no.2 regarding the breach and terms of the agreement by  

not maintaining the property and by causing damage to it was answered in  

affirmative.   

24.5 The issue no.4 regarding the plaintiffs’  entitlement to  damages of  

Rs.4 lakhs was answered in negative for want of evidence.   

24.6 The  issue  no.7  regarding  the  amount  due  to  the  plaintiff  was  

answered in negative.   

25. Being aggrieved by the judgment and decree dated 9th June, 2005  

passed in Civil  Suit  No.695 of  99,  the appellants  preferred Civil  Appeal  

No.26 of 2006 in the District Court, Pune.  

26. In Civil Appeal No.26 of 2006, the First Appellate Court by judgment  

and  decree  dated  15th January,  2009  while  dismissed  the  appeal  and  

modified the judgment and decree passed by the Trial Court holding that  

the plaintiffs-respondents are entitled to recover the amount of Rs.20,972/-  

along with cantonment taxes @ 6 per cent per annum from  February,  

2000 till the date of actual realization.   

27. Being aggrieved by the aforesaid judgment dated 15th January, 2009  

the appellants preferred Civil Revision Application No.272 of 2009 before  

the  Bombay High Court.   The  Bombay High Court  dismissed the same  

giving rise to the present appeal.  

28. Mr. Mohan Parasaran, learned Solicitor General of India appearing  

on behalf of the appellants-Union of India made the following submissions:-  

(i)  As  per  Section  2  of  the  Government  Grants  Act,   1895,  Transfer  of  Property  Act,  1882  is  not  applicable  to  such

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Government grant lands   and the Government Grant is taken  effect  as if the said Act had not been passed.  

(ii) Not only the Transfer of Property Act  is made inapplicable to  the  Government  but  Section  3  of  the  Government  Grants  Act,1895 makes it clear that the Government grants is  to take  effect according to their tenor, notwithstanding any rule of law,  Statute or  enactment  of the Legislature to  the contrary to the  same.

(iii) (Crown)- Union of  India  has  unfettered  discretion  to impose any condition, limitation or restriction in its grants and  rights,  privileges  and  obligations  of  the   grantee  would  be  regulated  only in accordance with the  terms of the  grant itself  though they are inconsistent with the  provisions of any Statute  or Common Law.

(iv) The  possession  of  the  house  was  taken  by  the  appellant-Union of  India  from the plaintiffs-respondents  in  due  course  of  law  and   that  the  plaintiffs-respondents  was  not  entitled to any remedy against the Government either by way of  a writ petition or a suit or under Section 6 of the Specific Relief  Act.   

(v) Clause 4 of the Repairing Lease Deed  dated 29.08.1941 even  protects  the  Government’s  right  of  resumption  and  therefore,  the  plaintiffs-respondents  cannot  derive  advantage  of  the  Repairing  Lease  Deed  for  claiming  right  or  title  over  the  suit  premises.    

(vi) In view of the Section 3 of the Government Grants  act, 1895, the Bombay Rent Control Act will not be applicable in  absence of landlord-tenant relationship,  the land being in the

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nature  of  a  Government  grant  over  which  the  super-structure  was constructed.  

(vii) No  right  has  been  vested  or  granted  in  the  repair  lease to the occupant to evict the owner of the land who in this  case  incidentally  proceeded  to  become  the  occupant  of  the  super-structure put up by the plaintiffs-respondents.   That will  not  create  any  legal  landlord-tenant  relationship  as  in  other  cases as the property in question falls in   the cantonment area  and is governed by   Government grants.

29. On the other hand, learned counsel for the plaintiffs-respondents  

raised following grounds to dismiss the appeal:

(i) The  High  Court’s  judgment  dated  27.2.1979 passed  in  the  Writ  Petition  preferred  by  plaintiffs-respondents  in  SCA  No.  1536/1973 setting  aside  the   notice  of  resumption  dated 11th  

June,  1971 has reached finality.   The legality and propriety of  aforesaid decision cannot be raised at this stage. (ii) In absence of jurisdictional error committed by Court’s below,  the High Court was right in refusing to interfere with concurrent  findings  of  fact.    The  scope  of  Revisional  Jurisdiction  under  Section 115 CPC is limited and the same cannot be exercised to  interfere with the finding of fact.  

(iii) Since  the  High  Court’s  approach  and  analysis  is  correct,  this Court should not exercise its power under Article  136 of the Constitution to set aside the impugned order.  

30. The case of the appellants is that the suit premises (land) belongs  

to Union of India- “Pune Cantonment Board”.  It was allotted by way of  

grant to one Nusserwanji Sorabji Anklesaria who erected super structure  

including  bungalow,  garage  and  servant  quarter.   In  1891,  the  suit

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bungalow  no.1A,  Elphinstone  Road  was  bequeathed  to  Maneckhji  

Nusserwanji Anklesaria by his father Nusserwanji Sorabji Anklesaria.  The  

name  of  Maneckhji  Nusserwanji  was  registered  in  the  General  Land  

Register.  Therein it was mentioned that the bungalow in question is held  

under old grant under conditions of GGO 14 dated 6th January, 1827.

The aforesaid fact is also clear from the agreement and repairing  

lease dated 29th August,  1941 reached between Maneckhji  Nusserwanji  

and  the  Governor  General  in  Council  wherein  at  clause  iii  (4)  it  is  

mentioned as follows;

“(4)  Nothing  herein  shall  prejudice  the  right  of  the  party  of  the   second part to resume under the terms of the Cantonment tenure   above referred to; and

(5) In the event of any dispute arising between the  party of the first   part and the party of the second part as regards the interpretation   of  any  terms or  condition  herein  contained,  the  same shall   be   referred to C.R.E. Poona Area whose decision will be final.”

31. The consent letter dated 19th December, 1967 written by Maneckji  

Nassurwanji Anklesaria to the Military Estates Officer, Poona Cantonment,  

Poona  shows  that  permission  for  sale  of  property  bearing  No.1A,  

Elphinstone Road, Poona Cantonment, Poona was sought for by Maneckji  

Nassurwanji Anklesaria and two others as they wanted to sell of their right,  

title and interest in the property to Dinshaw Shapurji Anklesaria and two  

others as a part of settlement of the family dispute.  Permission was also  

sought  for  to  complete  the  said  transaction  with  clear  assurance  that  

Dinshaw Shapurji Anklesaria and two others in whose favour the rights are  

sought to be sold are ready to execute such document in favour of the  

State as may be required under the existing rules.

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32. The Military Estates Officer,  Poona Circle  in reference to  above  

letter  dated  19th December,  1967  informed  Maneckji  Nassurwanji  

Anklesaria that sanction was accorded to the transfer by sale of the above  

bungalow  to  Dinshaw Shapurji  Anklesaria  and  others  and  ask  them to  

comply with certain instructions, as evident from the said letter, is quoted  

below:

“No. H/517 Office of the Mily. Esates Officer,

Poone Circle, Poona-1, 25 June, 1968. To,

Maneckji Nassurwanji Anklesaria, 94, Mahatma Gandhi Road, Poona-1.

Subject: Transfer of B.No.1-B Elphinestone Road, Poona Cantonment.

Dear Sir, Reference your letter dated 19.12.1967.

2. With  the  previous  concurrence  of  the  GOC-in-C,  Southern   Command, Poona sanction is hereby accorded to the transfer by sale   of the above bungalow to Shri. Dinshaw S.  Anklesaria and others of   94-A Mahatma Gandhi Road, Poona-1 for a sum of Rs.60,000/- subject   to the condition that the intending purchasers executed and registers   the  admission  certificate  of  their  own  expense  as  per  their   undertaking dated 3.1.68.

3. Please comply with the following instructions:-

i) It should be  mentioned in the sale deed to be executed that   the land is held on old Tenure and is not being sold.

ii) The date of execution of the sale and the number and date on   which it was accepted for registration should be intimated to   this office.

  iii) The  sale  deed  duly  registered  should  be  forwarded  to  this   

office through CPO, Poona for necessary mutation entries being  made in  the GLR.   The document will  be returned when no  longer required.

Yours faithfully, Sd/-

Military Estate Officer, Poona Circle, (Y.P. Kapoor)

Copy to:-

Page 16

Shri. Dinshaw S.  Anklesaria and others, 94-A, Mahatma Gandhi Road,

Poona-1. – With reference his undertaking dated 3.1.68   please forward a non-judicial stamp paper to the value of   Rs.3.00  together  with  site  plan  (one  on  tracing  cloth)   …….drawn to a scale 40’  to an inch in  respect  of  the   above  bungalow  showing  the  existing  authorized   buildings to enable this office to take further necessary   action in the matter.

The C.R.O, -  For information. Poona-1.”

33. Indenture  of sale made and executed on 12th November, 1968 by  

Maneckji Nassurwanji Anklesaria and two others (vendors) in favour of the  

Dinshaw Shapurji Anklesaria and two others (vendee) reads as follows:-

“Whereas  the  vendors  are  fully  seized  and  possessed  of  and   otherwise well and sufficiently entitled to all the lease – hold rights in   all that piece and parcel of land being perpetual grant under the old   grant of the Poona Cantonment and of the full right of ownership of all   the building and structure standing on the property known as No.1-A,   Elphinestone Road, Poona Cantonment, Poona 1 and which property is   more  described  in  the  Schedule  “A”  hereunder   written……………………………..the  vendors  agreed  to  sell  and  the  purchaser agreed to purchase all the leasehold rights being perpetual   grant under the old grant of the Poona Cantonment Board in all that  piece and parcel of the land situated within the Registration District of   Poona  and  Registration  Sub-District  of  Taluka  Haveli  and  situated   within  the  limits  of  the  Poona  Cantonment  Board  and  within  the   Revenue limits of Taluka Poona City and bearing Poona Cantonment   No.1-A, Elphinestone Road, Poona Cantonment, Poona-1 and bearing  G.L.R. and Survey No. 258 and bearing Military Estate House No.517   along with the full rights of ownership of all buildings out – houses,   structures, appurtenances and benefits of all amenities belonging to   or  available  to  the  said  property  and which  property  is  more  fully   described  in  the  Schedule  ‘A’  hereunder  written,  free  from  all   encumbrances, charges, burdens……..”

34. Thereafter, Dinshaw Shapurji  Anklesaria purchaser of the bungalow  

no.1A, Elphinstone Road, Poona Cantonment signed admission certificate  

dated 19th April, 1971 with following conditions:

“  Admission Certificate  

Page 17

We,  the  undersigned,  Shri  Dinashaw  S.  Anklesaria  residing  at  94-A   Mahatma Gandhi Road, Poona Cantonment, the purchaser of Bungalow  No.1A, Elphinstone Road General Land Register Survey No.258 of Poona   Cantonment, Sub District and Taluka Haveli,  District Poona, do hereby   subscribe  to  the  conditions  (reproduced  below)  of  the  original  grant   pertaining to the site thereof and this agreement shall be binding on me   as well as my heirs, successors and assigns as the case may be whoever   shall be in possession of the said property.

Conditions

1. Permission  to  occupy  ground  in  a  Military  Cantonment  confers  no    proprietary  right;  it  continuous  the  property  of  the  Estate  and  presumable at the pleasure of Government, but in all practicable case   one  month’s  notice  of  resumption  will  be  given and the  value  of  all   buildings which may have been authorized to be erected thereon,  as   shown  in  the  accompanying  plan,  as  estimated  by  the  Committee   contemplated in  General  Order-Separate  of  1856,  will  be  paid  to  the   owner.

2. That no buildings are to be erected on the ground other than those now   existing and shown on the attached plan no additions or alternations are   to be made thereto without the permission of the Officer Commanding   the Station.

3. The ground, being the property of Government cannot be sold by the    grantee.  The buildings may be sold by house owners of the previous   permission of the Officer Commanding the Station.

4. That the Military Authorities have the power to cancel the grant if the    ground is used for any purpose other than for which it  was originally   granted.  

5. We also agree to abide by any orders and rules that may be passed   regarding tenure of land in cantonments.

Place: Poona Dated: April 1971

Signature of the purchaser of  Bungalow No.1-A, Elphinstone Road

Sy. No.258 Poona Cantonment.

The above conditions have been explained by me to the purchaser of   Bungalow No.1-A Elphinstone Road, Poona Cantonment, and have been   subscribed to by him in my presence.

Place: Poona Dated: 19th April, 1971

Military Estates Officer Poona Circle

Page 18

(K.C. Agarwal)”

35. From the aforesaid records,  it  is  clear that the land  measuring  

0.90  acres  bearing  General  Land  Register  Survey  No.258  situated  at  

Elphinstone Road, Poona Cantonment, Poona belongs to the appellant.  The  

said land was leased by way of grant originally to  Nusserwanji  Sorabji  

Anklesaria under conditions of GGO 14 dated 6th January, 1827.  The super  

structure including bungalow, garage and servant quarter on the plot was  

constructed by him.  In the year 1891, the super structure bequeathed to  

his son-Maneckhji Nusserwanji.  Maneckhji Nusserwanji Anklesaria and two  

others  sold  their  right,  title  and  interest  over  the  super  structure  i.e.  

bungalow no.1A in favour of Dinshaw Shapurji Anklesaria and two others  

(nephews of Maneckhji Nusserwanji Anklesaria).  Thereby file of the super  

structure was transferred in favour of Dinshaw Shapurji Anklesaria and two  

others but the title of the land remained with the appellant.  

36. This is also evident from General Land Register- Cantonment 8-

A(1) dated 7th March, 2007 and relevant portion of which is as follows:

“  Extract Form   General Land Register-    Cantonment 8-A(1)

Survey No.258 S No.122 VOL. No.II PAGE Details and date of mutation 1 Subsidiary Sy. No. 2 Volume  &  Page  No.  of  Register

3

Area in Acres/Sq.Ft. 4 0.90 acre Description 5 Bungalow  No.1A,  

Elphinstone Road Class 6 B-3 By whom managed 7 D.E.O Landlord 8 Central Government Holder of occupancy rights 9 Maneckhji  

Nusserwanji Nature  of  Holder’s  right  under GGO

10 Old  Grant  conditions of  14  of

Page 19

6.1.1827 Rent payable: Central Govt. 11 Per annum Cantt. Board Date of expiry of lease 12 Remarks 13 Station: Pune-1 Dated: 07, March, 2007

Sd/- Defence Estates  

Officer Pune Circle

(SR. Nayyar)”

37. The Government of India from Ministry of Defence by notice dated  

11th June, 1971 intimated Dinshaw Shapurji Anklesaria and two others that  

the land belongs to the President of India i.e. the Government and is held  

on Old Grant terms under which the Government is entitled to resume the  

same.  It was informed that the Government has resumed the said property  

under the terms of the aforesaid Old Grant for its use and therefore, in  

exercise of power conferred under the provisions of the Act agreed to offer  

a sum of Rs.31,537/- as the value of the authorized erection standing on  

the  said  land.   It  was  further  intimated  that  in  case  if  the  amount  of  

compensation offered was not acceptable to the respondent, a committee  

of arbitration will be convened to assess the value of the erection on the  

land.   A cheque for  the amount was also attached along with the said  

notice.  

38. The Government Grants Act, 1895 as would be evident from the  

preamble and Section 2 therein, seeks to clarify the doubts with regard to  

the extended operation of the Transfer of Property Act.  Section 2 of the Act  

reads as follows:

“2. Transfer of Property Act, 1882, not to apply to Government   grants.-Nothing in the Transfer of Property Act, 1882, contained shall   apply or be deemed ever to have applied to any grant or other transfer   of land or of any interest therein heretofore made or hereafter to be  

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made by or on behalf of the Government to, or in favour of, any person   whosoever; but every such grant and transfer shall be construed and   take effect as if the said Act had not been passed.”

39. Not only the Transfer of Property Act is made inapplicable to the  

Government  grants  but  Section  3  of  the  Government  Grants  Act,  1895  

further  makes  it  clear  that  the  Government  grants  is  to  take  effect  

according  to  their  tenor,  notwithstanding  any  rule  of  law,  statute  or  

enactment  of  the  Legislature  to  the  contrary.   Section  3  lays  down as  

follows:-

“3. Government grants to take effect according to their tenor.-   All provisions, restrictions, conditions and limitations over contained in   any such grant or transfer as aforesaid shall be valid and the effect   according to their tenor, any rule of law, statute or enactment of the   Legislature to the contrary notwithstanding.”

40. This  Court  in  Azim Ahmad Kazmi  and Others.  v.  State  of   

Uttar  Pradesh and Another,  (2012)  7  SCC 278,  has  held  that  the  

Government grant of lease of land is governed entirely by the terms of the  

grant.  The Court took note of Section 3 of the Government Grants Act,  

1895 which is  to take effect according to its  tenor notwithstanding any  

other law to the contrary.   

41. In  Chief  Executive  Officer  v.  Surendra  Kumar  Vakil  and  

Others, (1999) 3 SCC 555,  this Court has held that the grantee under  

the old grant terms is a mere occupier/licensee having no title over the  

land so as to entitle him to transfer the land or to another person without  

prior consent of the authorities concerned. The Court further held that the  

regulations as well as the General Land Register which are old documents  

maintained in the regular course and coming from proper custody clearly  

indicate that the land was held on old grant basis and this was sufficient

Page 21

for the Government to resume the land in accordance with law.  

42. In Union of India and others v. Kamla Verma, (2010) 13 SCC   

511, this Court has held that it is always open to the Union of India to  

resume the land held on old grant terms and that the Union of India cannot  

be prevented from resuming the said land.  

43. Therefore,  it  is  clear  that  the  Government  has  unfettered  

discretion  and  under  Section  3  impose  any  condition,  limitation  or  

restriction in its  grants and the rights,  privileges and obligations of  the  

grantee would be regulated only according to the terms of the grant itself  

though they  may be inconsistent  with  the  provisions  of  any Statute  or  

Common Law.

44. The grants of lands situated in cantonment area under Old Grants  

form a self contained provision prescribing the procedure as to the grant  

and resumption of the land and hence recourse to the Civil Procedure Code  

or the Specific Relief Act will not be applicable.  

45. From  the  permission  for  sale  of  property  letter  dated  19th  

December,  1967,  Indenture  of  Sale  dated  12th November,  1968  and  

admission certificate dated 19th April, 1971 signed by the respondent it is  

clear that the Military Authorities have the power to cancel the grant if the  

land is used for any purpose other than for it was originally granted.    

46. In the suit the plaintiffs-respondents falsely claimed that the suit  

premises described in para 1 of the plaint is owned by the plaintiffs as  

freehold property. This would be evident from the pleadings made by the  

plaintiffs-respondents, as discussed below.  

47. The description of the property has been shown at paragraph 1 of

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the plaint as under:

“1. Description of the Property: All that piece and parcel of property bearing GLR Survey No.258  and corresponding an area of 0.90 acres together with structure   consisting  of  main  Bungalow,  Servant  Quarter  Garage  and  Servant Quarter, and bounded as under: On or towards the East: Elphinstone Road On or towards the South: Bungalow No.2, Elphinstone Road On or towards the West: Bungalow No.13, Moldina Road On or towards the North: Bungalow No.13, Moledina Road”  

Paragraphs 2, 3 and 4 of the plaint read as under:

“2.  That  the  property  described  in  Para  1  above  is  owned  by   plaintiffs as freehold property.

3.  That  the  said  property  originally  belonged  to  Nusserwanjee  Sorabji  Anklesaria.   Plaintiffs  have  purchased  the  property  as  per   conveyance  deed  dated  12.11.1968   from  Shri  Maneckaji   Nusserwanjee Ankelsaria.  That name of plaintiffs was also recorded   in  GLR  Record  and  which  was  subsequently  removed  by  the   defendant no.2 illegally.  The plaintiff has challenged the aforesaid   act  of  defendant  no.2  deleting  the  name of  the  plaintiffs  in  Civil   Court.

4. That  lease deed dated 29.8.1941 was executed by the  then owners of the suit property and Union of India.  That as per the   aforesaid lease deed the said property was leased out to defendants   under repairing lease for a period of 5 years.  After the expiry of the   said period the defendants continued to be in use and occupation of   the said property as at tenant holding over on the same terms and   conditions as a monthly tenant.  Thus the defendants are occupying   the said property as a statutory tenant only.”

48. The plaintiffs-respondents also misled the Court by stating that the  

resumption notice dated 11th June, 1971 was set aside by the Bombay High  

Court and the said order has attained finality.  

49. In fact the judgment aforesaid on challenge before this Court in  

Civil Appeal No.613 of 1980, heard along with other appeals, this Court by  

order dated 4th August, 1998 made the following observation:

“  Order   Learned  Solicitor  General  states  that  the  Union  of  India  would   seek  dispossession  of  the  respondent-occupants  from  the  properties  involved  in  accordance  with  law  and  if  need  be,   through a Civil Court by filing suits.  In case such steps are taken,   any observations made by the High Court which would stand to  

Page 23

defeat the remedies sought would not stand in its way.  On such   stance  of  the  Union  of  India,  Civil  Appeals  as  also  the  special   leave petitions stand disposed of accordingly.”

50. The liberty given to the Union of India to dispossess the plaintiffs-

respondents from the suit property clearly indicates that the decision of the  

Bombay High Court that the suit premises do not belong to the Union of  

India was not acceptable to this Court.  

51. The  aforesaid  misleading  pleading  made  by  the  plaintiffs-

respondents is without any evidence and the same influenced the Court in  

coming  to  a  wrong  conclusion  that  the  plaintiffs-respondents  are  the  

landlords and defendants-appellants are the tenants of the suit premises.  

52. The Appellate  Court  also  failed  to  appreciate  the evidence and  

erred in affirming the Trial Court’s view that the plaintiffs-respondents are  

the landlords and defendants-appellants are the tenants.  

53. The  land  of  the  suit  premises  belong  to  the  Union  of  India-

appellants herein.  Therefore, they cannot be held to be tenants of the suit  

premises  comprising  of  an  area  of  0.90  acres  together  with  structure  

consisting of main Bungalow, Servant Quarter and Garage.

54. The  plaintiffs-respondents  have  only  right  with  regard  to  the  

structure built on the suit premises.  The Union of India-appellants have a  

right  for  resumption of  the suit  premises,  as  evident  from evidence on  

record as discussed above. This issue was not properly appreciated by the  

Trial  Court,  the Appellate Court and the High Court which also failed to  

notice  the  appellants’  right  under  Section  2  and  3  of  the  Government  

Grants Act, 1895.   

55. For the reasons aforesaid, we set aside the impugned judgment

Page 24

dated  25th November,  2009  passed  by  the  High  Court  of  Judicature  at  

Bombay in Civil Revision Application No.272 of 2009, the judgment dated  

15th January, 2009 passed by the First Appellate Court and judgment and  

decree  dated  9th June,  2005  passed  by  the  Trial  Court.  Civil  Suit  

No.695/1999 on the file of Small Causes Court, Pune is dismissed.  

56. The appeal is allowed.  No order as to costs.  

………………………………………………….J.                       (DR. B.S. CHAUHAN)

………………………………………………….J.                (SUDHANSU JYOTI  

MUKHOPADHAYA)

……………………………………………….J.                (KURIAN JOSEPH)

NEW DELHI, MAY 06,   2014.