1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVN. APPLICATION NO. 272 OF 2009 Union of India & anr. ... Applicants v/s Dinshaw Shapoorji Anklesari & ors. ... Respondents Mr.S.R.Rajguru for the applicants. Mr.P.S.Dani with Mr.Manek Kalyaniwalla and Mr.Agnel Carneiro i/by M/s.Mulla & Mulla for the respondents. CORAM: SMT.NISHITA MHATRE, J. DATED: 25TH NOVEMBER, 2009 P.C.: 1. The applicants have challenged the decree passed for resumption by the Small Causes Court, Pune, in Regular Civil Suit No.695 of 1999 on 9.6.2005, which has been confirmed by the District Judge in Civil Appeal No.26 of 2006. 2 2. A suit for eviction was filed by the respondents mainly on two grounds, namely: (i) the applicants were in arrears and therefore had committed a default in payment of rent and (ii) the property which was let to the applicants was damaged by them by not maintaining the same in terms of the conditions of tenancy. Both the Courts below have concluded that the termination of the tenancy on the aforesaid terms is legal and valid and, therefore, have passed the decree in favour of the respondents. The Courts have also concurrently found that the plaintiffs i.e. the respondents herein were landlords of the suit premises and that the applicants were their tenants. They have also held that the defendants had not proved that they had denied the title of the plaintiffs to the suit premises. As regards the contention of the plaintiffs that the defendants were in arrears of rent since 1.7.1971 to 30.6.1999, the Courts have negated the contention. However, both the Courts below have concurrently held that the plaintiffs i.e. the respondents herein were entitled to a decree since the defendants had committed a breach of the terms and conditions of the lease agreement by not maintaining the suit property and by causing damage to it. 3. The contention of Mr.Rajguru, appearing on behalf of 3 the applicants is that, the land on which the bungalow is built by the respondents has been resumed by the Union of India and consequently the bungalow cannot stand in the name of the respondents. It is contended that the applicants had a title to the land and therefore the right of ownership. He has narrated the history with respect to the manner in which lands in the Pune Cantonment area were leased to private citizens under the orders of the Government of India. According to the learned advocate the respondents were similarly leased the land on which the suit premises are constructed on old grant terms. He contends that all such lands were later resumed by the Government by issuing notices to all the lessees, including the respondents. He has relied on several judgments of the Supreme Court in support of his contention that it must be held that the land in the present case was also resumed and, therefore, the respondents were no longer owners of the bungalow in which the applicants were admittedly tenants. 4. Mr.Rajguru then drew my attention to the various litigations between the parties by referring to certain orders passed by this Court as well as the Supreme Court. The respondents were issued a notice on 11.6.1971 by the Government of India informing them that their property was 4 being resumed by the Government under the old grant terms. They challenged this notice by preferring Special Civil Application No.1536 of 1973 in this Court. That special civil application was allowed and it was held that the Government’s right of resumption, the right to resume under particular terms and the right to take possession of houses situated on the land were non-existent in that case. The Division Bench of this Court based its decision on its earlier judgment in Special Civil Application No.1286 of 1972. The Court further held that any admission made of a term of grant, which is shown to be non-existent, cannot be binding on the persons making that admission. 5. This judgment was challenged by the Government of India i.e. the applicants herein by preferring a S.L.P. before the Supreme Court. Several such judgements and orders based on the judgment of the Division Bench in Special Civil Application No.1286 of 1972 were challenged by the Union of India before the Supreme Court. Some petitions were transferred to the Supreme Court from this Court. While remitting the transferred cases for disposal on merits, the Supreme Court observed that the High Court should not place any reliance on the judgment of the Division Bench in the case of Special Civil Application No.1286 of 1972. The 5 civil appeal No.613 of 1980 filed by the Union of India against the judgment and order in Special Civil Application No.1536 of 1973 was heard by the Supreme Court on 12.3.1992 along with a bunch of other appeals. Those appeals were disposed of by referring to the observations made by the Court while disposing of the transferred cases to the effect that the High Court should not place reliance on the judgment of the Division Bench in Special Civil Application No.1286 of 1972. The Supreme Court, therefore, disposed of the civil appeals as infructuous. A review petition was preferred by the Union of India in respect of some of the appeals. The order passed by the Supreme Court earlier was recalled in respect of some of the civil appeals including that filed in the respondents’ case and the appeals were restored to file. Those appeals were then heard on 4.8.1998. The Apex Court observed thus - “Learned Solicitor General states that the Union of India would seek dispossession of the respondent – occupants from the properties involved in accordance with law land and if need be, through a Civil Court by filing suits. In case such steps are taken any observations made by the High Court which would end to defeat the remedies sought would not stand in its way. On such stance of the Union of India, Civil 6 Appeals as also to the special leave petitions stand disposed of accordingly.” 6. The respondents herein had moved Civil Application No.3382 of 1992 in Special Civil Application No.1536 of 1973 for certain reliefs. Based on the judgment in Spl. Civil Application No.1536 of 1973, the Union of India was directed to hand over the symbolic possession of the property bearing Survey No.253, Bungalow No.2-A, situated on Elphinstone Road, Pune Cantonment, Pune, i.e. the suit premises herein. The respondents were granted liberty to adopt appropriate proceedings to secure actual possession. It appears that the Union of India had the mutation entries in the Government land records changed after the resumption notices were issued by incorporating the name of Ministry of Defence as the occupier. The respondents herein therefore filed Regular Civil Suit No.1881 of 1999 seeking a declaration and a permanent injunction against the Union of India for deleting the names of the respondents from the Government land record extract with respect to the suit property. That suit was decreed on 3.4.2006. It was declared that the act of the Union of India of deleting the names of respondents from the record with respect to the suit property was illegal and ultra- vires. A mandatory injunction was issued against the Estate Officer to enter the names of the plaintiffs i.e. the 7 respondents herein in the land records as the owner of the occupancy rights and to delete the name of the Ministry of Defence. This judgment has not been challenged by the Union of India and, therefore, the decree passed by the Civil Court is final. Obviously, therefore, the ownership of the bungalow in which the applicants are tenants cannot be challenged now. 7. The reliance placed by Mr.Rajguru on the judgment of this Court in the case of Kaikhosrou (Chick) Kavasji Framji & anr. v/s Union of India & anr., reported in 2009 (4) All.M.R. 532, the case of Dosibai Nanabhoy Jeejeebhoy v/s Union of India, reported in 2009(4) Bom.C.R. 476, is misplaced. In the case of Kaikhosrou (supra), the Division Bench of this Court opined that the earlier order in Special Civil Application No.1236 of 1972 of the Division Bench of this Court lost its existence in the eye of law and the same stood superseded with that of the Supreme Court’s order passed on 4.8.1998, in view of the doctrine of merger. The Division Bench held that the judgment in the case of P.T.Anklesaria in Special Civil Application No.1236 of 1972 was no longer good law and that the substratum of the earlier Division Bench judgment was taken away by the Supreme Court’s order dated 4.8.1998. In Kaikhosrou case (supra), after the order dated 4.8.1998 8 passed by the Supreme Court, a notice was issued against the petitioners in that case under the Public Premises Act in accordance with the liberty granted by the Supreme Court in the order dated 4.8.1998. It is in the light of those circumstances that it was held that the notice issued under the Public Premises Act could not be challenged and that the proceedings under the Public Premises Act initiated by the Union of India were not vitiated because of the judgment in P.T.Ankleswaria’s case i.e. in Special Civil Application No. 1236 of 1972. 8. Similarly, in the case of Dosibai Nanabhoy Jijibai (supra), the Division Bench of this Court considered an appeal which was directed against the judgment and decree passed by the Joint Civil Judge, Sr. Divn., Pune in Special Civil Suit No.287 of 1983. The suit was filed by the plaintiff for a declaration that the suit property vested exclusively with her and that the Union of India had no right , title or interest in its ownership. Another declaration was sought to the effect that that the resumption notice issued was void and had no legal effect as the Union of India had no right to resume the land. The plaintiff had sought to justify her contentions based on the judgment of this Court in P.T.Anklesaria's case. The Division Bench held that the trial court had rightly dismissed the suit as it was filed after a 9 long delay during which period the plaintiff had accepted compensation and had been dispossessed of the property. The judgment in Dosibai Nanabhoy Jijibai has no application in the present case. 9. The judgements of the Apex Court in the cases of Chitra Kumari (Smt.) v/s Union of India & ors., reported in (2001) 3 SCC 208 and Chief Executive Officer v/s Surendra Kumar Vakil & ors., reported in A.I.R. 1999 SC 2294, cited by Mr. Rajguru do not advance the case of the applicants. This is so because of the decree passed by the Civil Court in Civil Suit No.1881 of 1999 in favour of the respondents directing the Estate Officer to record the names of the respondents in the land records as owners. As stated earlier this decree has not been challenged by the applicants. 10. Apart from this, it was sought to be contended that the Small Causes Court had no jurisdiction to entertain the suit. It has been recorded by the Court that there was no serious dispute raised by the defendants i.e. the applicants herein on the maintainability of the suit and therefore I need not consider this submission. 11. In my view, the decree passed by the Trial Court and which has been confirmed by the Appellate Court cannot be 10 faulted. Concurrent findings of fact have been recorded which need not be disturbed in this revision application. 12. Civil revision application dismissed. 13. Mr.Rajguru prays that the decree be stayed for a period of eight weeks. Mr.Dani opposes this application by contending that the suit has been filed in the year 1999 and the respondents are entitled to enjoy the fruits of the decree immediately. The decree is stayed for a period of eight weeks from today on the usual undertaking being filed within a period of four weeks from today. ..... 11