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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

21

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

22

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

23

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

24

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

25

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

26

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

28

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.