-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 81 OF 1993 with CIVIL APPLICATION NO. 5207 OF 2008 And Civil Application Nos. 152 of 2003, 475 of 2004 & 5487 of 2007 Mrs. Dosibai Nanabhoy Jeejeebhoy, represented by ) (a) Byram Nanabhoy Jeejeebhoy ) (b) Avi Behram Doctor ) (c ) Behram Doctor ) having their address at 83, Jolly Maker Chamber II, ) Nariman Point, Mumbai-400 021. )...Appellants. Versus The Union of India, through Secretary to the ) Government of India, Ministry of Defence, South ) Block, New Delhi. )..Respondents Mr. Mahendra Shah, Senior Advocate, with Mr. K. Presswalla and Mr. Rajesh Rathod, instructed by M/s. Bilawala & Company, for the appellants. Mr. S.R. Rajguru with Ms. Nisha Valani for the respondents. CORAM: P.B. MAJMUDAR & SMT. R.P. SONDURBALDOTA, JJ. Judgment reserved on: 17 th October,2008 Judgment pronounced on: 20 th January, 2009 JUDGMENT (Per P.B. Majmudar, J.) This appeal is directed against the judgment and decree dated 30th September, 1991, passed by the learned Joint Civil Judge, Senior Division at Pune, in Special Civil Suit No. 287 of 1983. By the impugned judgment and -2- decree, the suit filed by the original plaintiff has been dismissed by the learned trial judge. 2. The plaintiff is the original owner of land situate at 11, Staveley Road, Pune Cantonment, along with the main bungalow and various out-houses, servants' quarters etc., hereinafter referred to as “the suit property”. The aforesaid suit was filed for a declaration that the suit property vests exclusively with the plaintiff and the defendant has no right, title or interest in the ownership thereon. The plaintiff has also prayed for a declaration that the defendant has no right of resumption in respect of the suit property and the resumption notice dated 22nd October, 1970 and the letter dated 6th November, 1970 are invalid, void and of no legal effect. A further declaration was also sought in the suit to the effect that the “Admission Certificate” dated 24th April, 1965 is void and not binding on the plaintiff. It is also prayed that the defendant be directed to deliver up the Admission Certificate dated 24th April, 1965 and the said Admission Certificate be cancelled. 3. It is the case of the plaintiff that she is the owner of the suit property viz. all that piece and parcel of land bearing No.11, Staveley Road, Pune Cantonment, consisting of the main bungalow together with out-houses, servants' quarters, garages, stables and a garden admeasuring about 1 acre and 30 gunthas together with ground, trees, fences, etc. It is the case of the plaintiff that the above suit -3- property was owned absolutely by late Cawasjee Dhunjeeshaw, the father of the plaintiff. It is averred by the plaintiff in the plaint that her father said late Cawasjee Dhunjeeshaw by an indenture dated 23rd June, 1930, between him and the Secretary of State for India in Council leased the dwelling house to the predecessors of defendant in the suit property together with out-buildings, grounds, gardens, trees, fences, ditches, wells, easements and appurtenances to the said dwelling house for a period of five years from 20th April, 1930, at the rate of Rs. 745/- excluding conservancy and water taxes. After this lease had expired, a new lease dated 18th July, 1935, was executed between the parties, for another period of five years commencing from 20th April, 1935. After the term of the lease, the defendants' successors of the Secretary of State for India in Council, held the property on the same terms and conditions contained in the said indenture on the basis of the monthly tenancy. According to the plaintiff, after the demise of the original lessor, the late Cawasjee Dhunjeeshaw, the monthly rent in respect of the suit property was being paid by the defendant to the widow of late Cawasjee Dhunjeeshaw, who was given a life interest in the said property. The plaintiff was given the full and absolute interest in the suit property, after her mother's death, and she became and owner and lessor of the suit property. The plaintiff filed a suit bearing R.C.S. No. 1946/1965 on 15th April, 1964 (thereafter renumbered as Suit No. 946 of 1965) in the Court of Civil Judge, Senior Division, Pune, for possession, arrears of rent and damages. -4- 4. According to the plaintiff, the defendant failed to make payment of the rents, taxes and other dues payable in terms of the lease and hence the plaintiff became entitled to terminate the said lease and to take the possession of the said property. It is the case of the plaintiff that on 23rd February, 1965, she had applied for transfer of the suit property in her own name upon her father's death to the Military Estate Officer, Pune Circle, Pune-1, as she was given to understand that such an application was necessary in Cantonment Area. It is alleged by the plaintiff that taking advantage of the said application, the defendant made a condition of transfer that she should sign an Admission Certificate acknowledging Government proprietary interest in the land. The plaintiff had signed such Admission Certificate on 24th April, 1965. The plaintiff was made to subscribe the condition of the original grant pertaining to the site of the bungalow on the said suit property. It has been stated in the said Admission Certificate that permission to occupy ground in a military cantonment conferred no proprietary right and that it continued to be the property of the State and was resumable at the pleasure of the Government. It is also the case of the plaintiff that the Civil Judge, Senior Division, Pune, by judgment and decree dated 29th June 1969 in Regular Civil Suit No. 946 of 1965, directed the defendant to hand over possession of the suit property and pay to the plaintiff Rs. 2,845.37 with costs of the suit and future interest on the same. The defendant had challenged the said decree by way of an appeal, being -5- Appeal No. 213 of 1970, in the District Court, Pune. The District Court, Pune, stayed the and execution of the decree in the said appeal. 5. It is the case of the plaintiff that by a purported resumption notice dated 22nd October, 1970, the defendant informed the plaintiff that all rights, easements and interest in the suit property were seized on the expiry of 30 days of the notice. As per the recital in the said notice, the suit property belonged to the defendant and was held on old grant terms. By the said notice, the defendant offered to pay the plaintiff a sum of Rs. 36,268/- as the value of the authorised erections standing on the said land. The Military Estate Officer, Pune Circle, requested the plaintiff by letter dated 6th November, 1970 to hand over the possession of the suit property with all the buildings and erections standing thereon to the representative of the defendant on 25th November, 1970, at 11.00 hrs. in terms of the said notice. 6. It is the case of the plaintiff that the defendant was not the owner of the land and was not entitled to resume the land or buildings thereon. The plaintiff made an application before the Assistant District Judge, Pune, in the said appeal No. 213 of 1970, to restrain the defendant from resuming the land. An order was passed on 19th November, 1970 to that effect. The defendant thereafter vide letter dated 23rd January, 1971 enclosed a cheque of Rs. 36,268/- towards the purported compensation of the buildings. The plaintiff returned the said cheque in view of -6- the pendency of legal proceedings. In the meanwhile, the Assistant District Judge disposed of the said Appeal No. 213 of 1970 on 28th March, 1972, in favour of the defendant by holding that the provisions of the Rent Act did not apply to the Cantonment. The plaint was thereafter returned for presentation to the Court of Small Causes, Pune on 28th April, 1972 and was numbered as Civil Suit No. 1435 of 1972. The said suit was transferred to the Principal Civil Judge, Senior Division, Pune and numbered as R.C.S. No. 599/1974. According to the plaintiff, by an oversight, no application for injunction against the resumption of the suit property was made on behalf of the plaintiff either before the Small Causes Court or before the Principal Civil Judge, Senior Division, Pune. On 17th May, 1972, the defendant purported to unilaterally resume and assume possession of the suit property. Correspondence ensued between the plaintiff and the defendant for the receipt of compensation amount. The plaintiff ultimately accepted the defendant's cheque for Rs. 36,268/- under protest. The plaintiff also applied to the defendant for referring the matter to an arbitration Committee. In pursuance of the plaintiff's request, one Lt. Col. D. Jagadesan was appointed as a Presiding Officer of the Arbitration Committee. It is the case of the plaintiff that the said Arbitration Committee had not yet determined the plaintiff's claim for additional compensation. The plaintiff has further contended that the above RCS No. 599 of 1974 filed by the plaintiff before the Principal Civil Judge, Senior Division, Pune, was dismissed for default on 29th October, 1979, and that the restoration application filed by the -7- plaintiff is still pending disposal of the Court. 7. It is also the case of the plaintiff that somewhere in May, 1980, she took legal advice on the question of proceedings relating to the purported resumption and her attention was drawn to the judgment of the Bombay High Court in the case of P.T. Anklesaria vs. H.T. Vashistha and others, AIR 1980 Bom. 9, wherein the Division Bench took the view that it could not be laid down as a matter of law that no land in the Pune Cantonment could have been the subject matter of private ownership before or after the settlement of Cantonment limits. In the said case, the Division Bench has set aside the resumption notice, which was identical to the resumption notice in respect of the suit property. It is also the case of the plaintiff that the defendant have been in wrongful possession of the suit property since May, 1972 by way of purported exercise of their so called right of resumption and that they have been wrongly using the suit property without making any payment of rent or mesne profits or other charges payable to the plaintiff which they are bound to pay under the terms of the indenture dated 18th July, 1935. On these and such other averments, the suit was filed by the plaintiff for declarations, as stated above. 8. The suit was resisted by the defendant by filing the written statement at Exhibit-15. The defendant denied the averments and allegations in the suit. -8- According to the defendant, the plaintiff was the owner of only the main bungalow, out-house, servants quarters, garages and stables and authorised to be built but were not the owners of the land. According to the defendant, the plaintiff was merely holder of occupancy rights in so far as the land admeasuring 1.30 acres bearing S. No. 404 is concerned. The said land was held by the plaintiff's predecessor in title in terms of the old grant under condition No. GGO No. 14 of 6th January, 1827. According to the defendant, the entire property now vests with the Government of India after its resumption on 17th May, 1972. It is the further case of the defendant that the Government had taken on lease a dwelling house in terms of indenture dated 23rd June, 1930 but denies that on the basis of an indenture the plaintiff got any title to the land underneath the dwelling house. It is the case of the defendant in the written statement that loosely worded indenture 'by premises' meant only the structures erected on the land and did not include the land. According to the defendant, the plaintiff was trying to mislead the true facts of law. It is denied by the defendant that after expiry of lease in 1935, the Government was holding over the same as statutory tenant on the premises. It is also the case of the defendant that after the war of 1817, the Military had occupied all the land in the limits of Cantonment of Pune and the rights of private parties of private lands were extinguished. The gazette notification was published in 1828 declaring the limits of Cantonment of Pune. There were no private land or private interest in the Cantonment. Subsequently, Army Officers and selected civilians were granted -9- land for construction of residential accommodation with a clear condition that no proprietary rights will be conferred on grantees. The plaintiff who had inherited the property in 1965, was also explained the conditions which the property was held by her and she voluntarily signed the “Admission Certificate” on 24th April, 1965. According to the defendant, it is not open to the plaintiff to say after seventeen years that she had signed an application erroneously. According to the defendant, the decree was passed by the Civil Judge, Senior Division in RCS No. 946 of 1965. However, the plaintiff has for the reasons best known to her has not bothered to state that the appeal was decided in favour of Government. It is the case of the defendant that the suit property was resumed after a valid notice giving one month's time and an amount of compensation of Rs. 36,268/- was offered to the plaintiff. The plaintiff has never challenged the right of Government for resumption but was contesting that the compensation is payable for the land also. It is the case of the defendant that in the case of P.T. Anklesaria(supra), the Bombay High Court has struck down only the powers of resumption of the Government merely because in the particular property, the Government could not produce the original grant pertaining to the power of resumption. The said decision of the Bombay High Court was, however, challenged in appeal before the Supreme Court in SLP Nos. 608 to 621 of 1980. The Appeals filed by the Government have been admitted by the Supreme Court. According to the defendant, since the plaintiff has already accepted compensation amount in 1976 and had elected for arbitration only to fix -10- the compensation which has already been admitted by the plaintiff and hence the suit is hopelessly barred by limitation and laches. On these and such other averments, the suit of the plaintiff was resisted by the defendants. 9. The learned trial Judge framed 21 issues arising out of the pleadings at Exh. 20. After considering the oral and documentary evidence on record, the learned trial Judge came to the conclusion that the plaintiff has failed to prove that the suit property was owned absolutely by late Cawasjee Dhunjeeshaw, the father of the plaintiff. The trial Court also found that the plaintiff has proved that the suit property was leased to the Secretary of State for India in Council for five years from 20th April, 1930 at the rate of Rs. 745/- per month. The trial Court found that the plaintiff has only proved that the property was leased to the defendant. However, the plaintiff has failed to prove that after expiry of indenture dated 18th July, 1935, the successors of the defendants held the suit property on same conditions in the said indenture on the basis of monthly tenancy. The trial Court has found that the plaintiff has failed to prove that she became the owner and lessor of the suit property. The trial Court also found that the plaintiff has failed to prove that the suit property was at all times privately owned by her predecessor-in- title and by herself. The trial Court also found that the plaintiff has failed to prove that she signed an Admission Certificate dated 24th April, 1965, not realising the consequences of signing and that she signed the certificate thinking that it was -11- only a mere formality. The learned trial Judge had decided issue Nos.1, 3 to 17 against the plaintiff. The trial Court also found that the defendants proved that the plaintiff or her predecessors were merely holders of occupancy rights in respect of the suit property. The trial Court also found that the defendant proved that the suit land was held by the plaintiff's predecessor-in-title in terms of old grant under condition of GGO No. 14, dated 6th January, 1827 and that the entire suit property now vests with Government of India under its resumption dated 17th May, 1972. The learned trial Judge who had framed an additional issue regarding law of limitation also held that the suit of the plaintiff was barred by the law of limitation. On the basis of the aforesaid findings, the learned trial Judge by the impugned judgment and decreed dated 30th September, 1991 dismissed the suit of the plaintiff with costs. It is the aforesaid judgment and decree which is impugned in the instant appeal at the instance of the original plaintiff. 10. Since the appellant-original plaintiff-has expired during the pendency of this appeal, her heirs 1 (a) (b) and ( c) have been brought on record, pursuant to the Court's order dated 11th June, 2004. . 11. During the course of hearing of the appeal for final hearing, the appellant-plaintiff has tendered on record a Civil Application for amendment of the plaint being Civil Application No. 5207 of 2008. On 17th October, 2008, this Court passed the following order. -12- “1. Arguments concluded in the appeal. Order reserved. 2. During the course of arguments, Civil application is tendered on record for amendment of the plaint. Since, we have heard both the learned counsels at length in the main appeal, the learned counsel for respondent is permitted to file reply to the Civil Application on record, latest by 10th November, 2008 and copy may be furnished to the other side before the said date. The learned counsel for the appellant may file his reply on record by 17th November, 2008. The written submissions on the amendment application of the plaint is permitted to both the sides, the same may be filed latest by 17th November, 2008. Learned counsel for both sides are also permitted to give short written submissions on the main appeal, latest by 17th November, 2008 with a request that it should be in a precise form and not very lengthy. The judgment will thereafter be pronounced after the aforesaid date at any time.” 12. Mr. Mahendra Shah, learned Senior Counsel, appearing for the appellants has submitted that on 29th June, 1969, the Civil Judge, Senior Division, Pune, decreed the suit filed by the plaintiff and ordered the defendant to forthwith give possession of the suit property. The defendant filed an appeal against the said order being Appeal No. 213 of 1970 before the Extra Assistant Judge, Poona at Poona. It was the submission of the plaintiff before the Appellate Court that the appeal is a continuation of the suit and consequently once the Rent Act has been made applicable by the notification issued in the year 1969, it shall be -13- deemed that the Court gets the jurisdiction and, therefore, the plaint ought not to be returned to the plaintiff under the provisions of Order VII Rule 10 of the Code of Civil Procedure Code. According to the plaintiff, the main relief sought for in the suit was for possession and the same relief does occur under the provisions of Transfer of Property Act and, therefore, the said relief ought to have been granted to the plaintiff as it was within the jurisdiction of the Court of Civil Judge, Senior Division. After hearing the parties, the Appellate Court vide judgment and order dated 28th March, 1972 in Appeal No.213 of 1970, allowed the appeal, set aside the decree of the trial Court and returned the plaint to the plaintiff for presentation to the proper Court. The Appellate Court found that the Civil Judge, Senior Division, conducted the suit as a Small Causes suit and the same was without jurisdiction. Mr. Shah has further submitted that in view of the judgment in the case of P.T. Anklesaria (supra), the Rent Act was applicable to the suit premises and, therefore, the decree was rightly passed by the trial Court and in that view of the matter, the decree passed by the Civil Judge, Senior Division, Pune, can be said to be a valid decree and the same is binding between the parties. It is submitted by Mr. Shah that an identical decree in the case of P.T. Anklesaria has been passed. It is further submitted by Mr. Shah that so far as the judgment delivered in P.T. Anklesaria is not stayed, the said judgments holds the field as the same has not been overruled. It is submitted by Mr. Shah that the plaintiff has led evidence about her title but the respondent has not led any evidence to -14- substantiate its say about handing over the land on the basis of original grant. The original grant has not been produced on record and the burden is on the defendant to prove such grant which they have not been discharged. Mr. Shah has further submitted that the judgment in Anklesaria's case was given by the Bombay High Court in a writ petition in which the petitioner therein had mainly and substantively challenged the resumption notice given by the respondents on the ground that there was no grant whatsoever from the Government of India granting to the petitioner or his predecessor-in-title, and in any event there is no grant containing any terms for the Government to resume the land. By the impugned resumption notice in the said notice, the executive could not deprive him of whatever right he held in the property whether the right was absolute or limited and the prayer asked for was a writ of mandamus to declare the impugned notice and all actions pursuant thereto as void, ultra vires and of no legal effect and ordering the respondents to cancel the said notice. 13. It is vehemently submitted by Mr. Shah that it was not open for the defendant to deny the title and if the title is denied then the decree for eviction is required to be passed against the defendant for denial of title. Mr. Shah has relied upon certain judgments regarding denial of title to which reference will be made later on. It is submitted by Mr. Shah that the defendant should have produced the original grant which they have failed to produce. He has further submitted that the -15- defendant had no right to resume the land and such resumption is contrary to law. It is submitted that since no grant is on record and the defendant has not led any evidence in this behalf and the said judgment in Ankalesaria's case is not reversed, the same will operate as a precedent. It is further submitted that the suit is filed within 12 years and is within the limitation. It is submitted that the defendant has not produced any evidence about grant and according to him there is no old grant at all. The defendant has not shown, even in the written statement, as to how, rights over private lands of private parties were extinguished. No evidence has been led, to show that in general, private parties lands were taken away and in particular, whether the land at 11, Staveley Road, Pune Cantonment, of the private party was taken away. 14. It is submitted by Mr. Shah that the decree passed by the Rent Court can be said to be binding decree and when ultimately if the title of the plaintiff is established in law the plaintiff can file a fresh suit for possession. It is submitted by Mr. Shah that under Section 28 of the Rent Act, Rent Court was the only competent Court to pass a decree and the