Second Appeal No.(SH)1 of 2010 Page 1 of 22 IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM:NAGALAND:MEGHALAYA:MANIPUR: TRIPURA:MIZORAM & ARUNACHAL PRADESH) SHILLONG BENCH Second Appeal (SH) No. 1 of 2010.  Robert Zomawia Street, S/o Ralte Thanzami, Principal, St. John’s School, Whitehall Shillong-14, Meghalaya. : Appellant versus 1. Union of India represented by Secretary to the Government of India Ministry of Defence, New Delhi 2. DEO, Gauhati Circle, PO-Silpukhuri, Guwahati-3 3. Station Commander, Eastern Headquarter Shillong. : Respondents B E F O R E THE HON’BLE MR JUSTICE T VAIPHEI For the Appellant : Mr VK Jindal, Sr Adv Mr S Dey, Adv For the respondents :Mr. R Deb Nath, CGC Date of hearing : 13.10.2011 Date of Judgment and Order : 16-12-2011 JUDGMENT AND ORDER This second appeal is directed against the appellate judgment dated 3-8-2009 passed by the learned District Judge, Shillong in RFA No. 1(H) of 2010 affirming the judgment and decree dated 22-12-2009 of the learned Assistant District Judge, Shillong in TS No. 5(H) of 1993 dismissing the suit. Second Appeal No.(SH)1 of 2010 Page 2 of 22 2. The case of the appellant, as pleaded in the plaint, is that he belongs to a Mizo community, which is a recognized Scheduled Tribes of Meghalaya and is the founder Principal of, and has been running, St. John’s School Whitehall for quite sometime. The land comprising the site of Bungalow No. 18 lying a plot of land measuring 4.261 acres, morefully described in the schedule to the plaint and hereinafter referred to as “the suit land”, situate within Shillong Military Cantonment area occupied by him had originally belonged to the late St. John Perry, who along with his wife were looked after by him at their old age days. So, out of natural love and affection for him, the late St. John Perry executed the Will dated 6-12-1980 bequeathing the suit land with the structures thereon upon him (the appellant) and after his death, he (the appellant) became the absolute owner thereof. The learned District Judge, Shillong probated the Will on 26-6-1987 in favour of the appellant on contest by the respondents: the probate so granted has never been taken to appeal by the respondent authorities. The appellant thereafter renovated the suit property by incurring a large sum of money. On the basis of the probate, the appellant approached the respondent No. 2 for mutation of the said land in his name in the GLR, but the said respondent supplied him a pro-forma declaration form in which he was asked to admit the proprietory right of the Government of India over the same with their right to resume the same. The appellant, however, refused to comply with the request of the respondents as the same amounted to duress and unnecessary pressure by the respondents so as to create their title over the suit property. 3. It is also the pleaded case of the appellant that soon after the death of the late St. John Perry, the Government of India in the Ministry Second Appeal No.(SH)1 of 2010 Page 3 of 22 of Defence by the letter dated 12-121986, after allegedly obtaining the admission, intimated the appellant that they had decided to resume the suit property and thereby asked him to quit the same and deliver possession thereof to the respondent No. 2 within one month. They also started initiating eviction proceeding against him under the Public Premises Act, but as he had already obtained his title by virtue of the said probate, the proceeding was dropped subsequently. However, after sometime, the appellant was served with the notice dated 23-3-1993 by respondent 3 informing him about the constitution of a Committee of Officers to examine the quantum of compensation payable to him for the suit property and about the determination of the value of compensation, on re-examination by the said Committee, at 1,72,094/- . This, according to the appellant, had been done without giving him an opportunity of hearing. He was further informed therein that if the appellant did not respond within 19-4-1993, it would be assumed that he had no objection to the resumption of the suit property by them. It was contended by the appellant that the respondents had proceeded under the wrong assumption that the suit property was a grant under the GGO No. 179 dated 12-9-1836, more popularly known as “Old Grant”. Having no alternative, the appellant instituted Title Suit No. 5(H) of 1993 before the learned Assistant District Judge, Shillong against the respondents for declaration that the said letter dated 23-3- 1993 was illegal and without jurisdiction and not binding upon him for permanent injunction and for prohibiting the respondents from further proceeding against him in any manner, etc. The stance taken by the appellant therein was that the suit property was not under the Old Grant. Second Appeal No.(SH)1 of 2010 Page 4 of 22 4. The suit was contested by the respondents by filing their written statement. The case of the respondents is that the suit property was originally granted under terms of GGO 179 also known as “old grants” to Mr. G.H. Games in the year 1980 (sic) free or rent. The said Games thereafter transferred by a deed of conveyance the same to Mr. L.H. Musgrave, who then transferred to Mrs. Gwondolen Marle De La Nogner by a will and probate in the year 1939. The late John Perry acquired the suit property by the will dated 29-5-80 and probates dated 13-10-89 executed by the said G.M. De La Nonger. The late Perry migrated to Switzerland after transferring the suit property in the name of the appellant through a will and probate dated 26-5-87. He had also executed the admission deed on a stamp paper of Rs. 4.25 registered at Sl. No. 3046 dated 13-5-82 in the Office of the Sub-Registrar, Shillong admitting the right of the Government over the suit property as it was held on old grant issued under the GGO No. 179 dated 12-9-1836. His predecessors had also admitted the right of the Government over the suit property. The proprietary right in the suit property is held by the Government of India and the holder occupancy rights only vest in the guarantee. It is incorrect to say that the late John Perry had enjoyed absolute ownership rights in the suit property though he was in physical and undisputed possession of the structures erected thereon with the permission of the Cantt. Board, Shillong and the land appurtenant thereto. The appellant became the owner of the authorized structures only but not land in question by virtue of the will executed by John Perry and probate issued by the District Judge, Shillong in Misc. Case No. 19(H) of 1985. There is nothing on record to prove that he had spent a huge amount of money to renovate the suit property which could not otherwise be done without the prior permission of the Second Appeal No.(SH)1 of 2010 Page 5 of 22 Cantt. Board, Shillong under the building bye laws. Since the land is held under the old grants on resumable terms, the rights of the Government in such land is required to be admitted by each occupoancy holder when transfer and mutation being done to secure public interest in the suit property as was always done in the past in the case of occupancy holders since its inception. Mutation is only for entering the name in the record to show the name of the possessor over a Government land. 5. The further case of the respondents is that as the Government had decided o resume the suit property as per the terms of the old grants for bona fide defence use, the resumption order and notice together with the cost of the structure were served upon the occupancy holder at his last known address. However, the resumption notice could not be served to the demise of the late St. John Perry. The appellant had inherited the occupancy rights of the suit property by will, it was decided to recover the same from the appellant through the PPE Act. As per the existing procedure for resumption, a Committee of Officers was formed to prepare valuation of the authorised structures owned by the appellant, and the appellant was informed the cost of the structure amounting to Rs. 1,72,094/- as evaluated by the said Committee and was asked his acceptance thereof. He was also asked to execute an admission deed before updating the Government record. According to the respondents, the suit property was settled with the British Government as early as in 1863 under the Bengal Army Regulation upon which the Cantonment had been established. No private land within the notified boundary of Shillong Cantonment exists thereon, which is sufficient evidence to prove that the land was originally settled Second Appeal No.(SH)1 of 2010 Page 6 of 22 with the said G.H. James in the year 1980 who in the deed had admitted that the suit property belongs to the Government of India and was settled with the appellant under the terms of the “Old Grants”. The respondents denied that the admission of the ownership of the Government over the suit property by the predecessors had been made under duress. The Cantonment land including the suit property was acquired y the British Government as early as in 1863 by an agreement with the Syiem of Mylliem. There is no cause of action for the suit. These are the sum and substance of the case of the respondents. 6 The learned Assistant District Judge framed as many as 14 issues for decision, examined the appellant and the respondent No. 2 as witnesses and got some documents exhibited to substantiate their respective cases. At the conclusion of the trial, the learned Assistant District Judge dismissed the suit by holding that the suit property was under the Old Grant. Aggrieved by this, the appellant preferred RFA No. 1(H) of 2010, by way of an appeal, before the learned District Judge, Shillong. After hearing the parties, the learned District Judge by the impugned judgment and order dismissed the appeal. Hence, this second appeal. While admitting the second appeal, this Court formulated the following questions of law, which are substantial in nature: 1. Whether the Old Grant dated 12-9-1836 which was not exhibited could be taken into account by the trial court for arriving at a finding? 2. Whether the Notice of Resumption of the suit land is contrary to the provisions of Section 10 of the Cantonment House Accommodation Act, 1923? 3. Whether the probate dated 26-6-1987 of the Will has finally attained finality and is binding upon the parties? 7. In so far as the first question is concerned, the same need not detain us long. As the Old Grant dated 12-9-1836 happens to be a Second Appeal No.(SH)1 of 2010 Page 7 of 22 document forming the record of the acts of the sovereign authority and same has come up before the courts in India including the Apex Court, which were referred to and analysed time and again in a number of decisions, the omission to exhibit the same before the trial court cannot render it inadmissible in evidence. Therefore, the first point for determination in this appeal is, whether the suit property is a grant under the Old Grant? Before answering this question, it will be important to understand the concept of “Old Grant”. The term “Old Grant” is explained by the Apex Court recently in Chief Executive Officer v. Surendra Kumar Vakil, (1999) 3 SCC 555 at paragraphs 9 and 10 of the judgment in the following manner: “9. The narrow question is whether the land was held by S.N. Mukherjee on old grant basis or not. The land is in the cantonment area of Sagar. Grant of land in cantonment areas was, at all material times, governed by the general order of the Governor General-in-Council bearing No. 179 of the year 1836, known as Bengal Regulations of 1836. Under Regulation 6 of these Regulations, the conditions of occupancy of lands in cantonments are laid down. Thereunder, no ground will be granted except on the condition set out therein which are to be subscribed to by every grantee as well as by those to whom his grant may be subsequently transferred. The first condition relates to resumption of land: (1) The Government retains the power of resumption at any time on giving one month’s notice and paying the value of such buildings as may have been authorised to be erected. (2) The ground being in every case the property of the Government cannot be sold by the grantee. But houses or other property thereon situated may be transferred by one military or medical officer to another without restriction except in certain cases. (3) If the ground has been built upon, the buildings are not to be disposed of to any person of whatever description who does not belong to the army until the consent of the officer commanding the station shall have been previously obtained under his hand. (10) The High Court in its impugned judgment has reproduced extracts from the book on Cantonment Laws by J.P. Mittal, 2nd Edn., at p. 3, which may well be reproduced here: Second Appeal No.(SH)1 of 2010 Page 8 of 22 “Besides municipal administration, another subject that has always loomed large on the cantonment horizon, is the question of provision of necessary accommodation for military officers near the place of their duty. This led to the issue, from time to time, of certain rules, regulations and orders by the Government of Bengal, Madras and Bombay Presidencies between the year 1789 and 1899. The regulations were mostly of an identical nature. They had a two-fold object in view, that of ensuring sufficient accommodation for military officers; and that of regulation of the grant of land sites. Some of these regulations are published in this book. These rules, regulations and orders continue to e the law in force in India even after the reinforcement of the British Statutes (Application to India) Repeal Act, 1960 (Raj Singh v. Union of India, Mohan Agarwal v. Union of India). Under these regulations and orders, officers not provided with government quarters were allowed to erect houses in the cantonment. For this purpose ground was allotted to them with the condition that no right to property whatever in the ground was conferred on them and the ground continued to the property of the State, was resumable at the pleasure of the Government by giving one month’s notice and paying the value of the structures as may have been authorised to be erected. The houses or other property built on such grounds were allowed to be transferred by one military officer to another without restrictions. To civilians these could be transferred only with the prior permission of the officer commanding the station. With the lapse of time civilians were also encouraged to build bungalows on the government land in the cantonment on the same condition of resumption of the ground as given above and with a further condition that they may be required to rent or sell the same to any military officer. In case of disagreement about the rent or the sale price, the same was to Second Appeal No.(SH)1 of 2010 Page 9 of 22 be fixed by a committee of arbitration. These tenures under which permission was given to occupy government land in the cantonments for construction of bungalows came to be known as “old grant”. Such permission was given mostly on payment of no rent. This is how a large number of bungalows in the cantonments all over India came in the hands of civilians.” 8. Having understood the concept of “Old Grant”, let me now proceed to deal with the first question. At this stage, the important findings of the first appellate court may also be noticed. The appellate court, while agreeing with the finding of the trial court, held that the suit land is covered by Old Grant, which can be resumed by the Government. In reaching this conclusion, it relied on the Will at Ext. 1/1 executed by the late John Perry, the predecessor-in-interest of the appellant and the deed at Ext. B/1 executed by the same John Perry. By the Will at Ext. 1/1, the said John Perry bequeathed the suit property “known as Cricket view, situated at 18 Cantonment, Shillong measuring more or less 4½ acres, together with all the buildings, structures and appurtenances thereon covered by the Old Grant dated 12th September 1836…..” The appellate Court also relied on the Deed at Ext. B/1 wherein he had conceded that permission to occupy the suit land in a Military Cantonment conferred no proprietory right and the same continued to be the property of the Government and resumable at the pleasure of the Government, but in all practicable cases one month’s notice of resumption would be given and the value of all authorized building erected thereon, would be paid and that the ground being the property of the Government could not be sold by him: the Second Appeal No.(SH)1 of 2010 Page 10 of 22 building might be sold by him with the permission of the competent authority. 9. According to the appellate court, the regulations contained in GGO regarding grant of lands situate at Cantonment area are statutory in character, which is the “existing law” referred to in Article 31(5)(a) of the Constitution, and as the regulation clearly conferred upon the Government the power to resume the suit land, the appellant has been deprived of his property ‘by authority of law’. Alternatively, the appellate court held that even if it is assumed that the regulations contained in GGO are not statutory but only executive in character also, the grant of land was a legal transaction between two parties and was not a transfer and is governed by the Government Grants Act, 1895. When the suit land was given to the appellant under Regulation 6, no right to or interest therein was given to him: only physical possession was given to him. He was, held the appellate court, only a licensee without any right to or interest in the suit land: possession without right is mere occupation without legal protection against the true owner. As the suit land is under ‘Old Grant’, it is resumable by the Government subject to one month’s notice and compensation for structures and fixtures. As the suit land belongs to the Government, the late John Perry, the predecessor-in-interest of the appellant and who was a mere occupier, he could not give an absolute proprietory right the beneficiary of the Will. He might have been given the structures but not the land: probate cannot decide title. He, therefore, held that the Will cannot supersede the nature of the grant envisaged under the Old Grant. These are the summary of the findings of the appellate court, which concurred with the views taken by the trial court. Second Appeal No.(SH)1 of 2010 Page 11 of 22 10. Assailing the aforesaid findings of the courts below, Mr. V.K. Jindal, the learned senior counsel for the appellant, unfolds his submissions by contenting that the appellant court has erroneously affirmed the judgment of the trial court by holding that the suit land is under the “Old Grant” land without any independent finding of its own: once the appellant has denied that the suit land is under old grant, the burden of proof is upon the respondents to show that the suit land is an old grant with the right of resumption, but the respondents have miserably failed to prove that the suit land is an old grant. According to the learned senior counsel, the General Land Register (GLR) exhibited as A/1 is an incomplete document inasmuch as the same did not reflect the names of the original grantees: the respondents have intentionally withheld the entire copy of the extract of the GLR relating to the suit land as they had never granted the same to the original grantee with the right of resumption. He, therefore, submits that under such circumstances, the Court below ought to have drawn adverse inference against the respondent authorities. It is also the contention of the learned senior counsel that from the extract GLR exhibit A/1, in which the suit land has been classified as B(3) land, it becomes obvious that such land is a land held by a private person like the appellant subject only to conditions under which the Central Government reserves or have reserved to themselves the proprietary rights in the soil thereby negating the claim of the respondents that they have the right of resumption thereto. The learned senior counsel further submits that both the courts below have wrongly assumed that all lands lying within he limits of Cantonment area were necessarily government property to which the Governor-General-in-Council Order of 1836 (GGO) applied Second Appeal No.(SH)1 of 2010 Page 12 of 22 whereby the Government has the power of resumption of those lands: the courts below have completely overlooked the provisions of para 7 of GGO which recognizes the existence of the property of a person not belonging to Army and which may be acquired by the respondent authorities either on payment of price or rent at the option of the owner. The learned senior counsel maintains that the resumption order is contrary to the provisions of Section 7 and 10 of the Cantonment (House Accommodation) Act, 1923 and is, therefore, unsustainable in law. 11. On the other hand, Mr. R. Debnath, the learned CGC, appearing for the respondent authorities, supports the impugned judgments and submits that there is no infirmity therein calling for the interference of this Court. He also submits that Ext. 1/1 and Ext. B/1 are self-evident and do not need any interpretation and leave no room for doubt that the admission therein of the predecessor-in-interests is binding upon the appellant, who stepped into their shoes and cannot claim a higher right than them. According to the CGC, as the respondents have successfully rebutted the assertion of the appellant that he is the owner of the suit land, the owner has now shifted to him to prove that the suit land is not under the old grant. Having miserably failed to do so, submits the learned CGC, the impugned judgment does not warrant any interference by this Court. 12. The law is well settled that the scope of interference by this Court in a second appeal under Section 100 of the Code of Civil Procedure, 1908 is extremely limited. The principles governing the exercise of the second appellate power are aptly summarised by Mulla’s Code of Civil Second Appeal No.(SH)1 of 2010 Page 13 of 22 Procedure, 1908, 17th Edn, at pp. 1173-74 in the first volume thereof, in the following manner: (a) An inference of fact from the recitals and contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law. (b) The high court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedent, but