1
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.
2
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
3
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
5
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”
6
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
7
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,
10
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
17
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
18
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
19
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
20
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.
