Union Of India & Anr vs Dinshaw Shapoorji Anklesari & Ors

3. The case of the appellants is that the suit premises as aforesaid belongs to the appellants – “Pune Cantonment Board”. The Governor-General by its order No.14(G.G.O.-14) dated 6th January, 1827 intimated that officers not provided with public quarters may receive permission to erect houses within fortress or military cantonment conferring on them right of property whatever in the ground allotted to them for that purpose, which will continue to be the property of the State, and resumable at the pleasure of the Government. The plot admeasuring 0.90 acres (suit premises) in question was initially granted to one Nusserwanji Sorabji Anklesaria who erected superstructure, including the Bungalow in question. In the year 1891 he bequeathed the suit bungalow no.1A, Elphinstone Road to his son Maneckhji Nusserwanji Anklesaria. The name of Maneckhji Nusserwanji was registered in General Land Register. Therein it was mentioned that the bungalow in question is held under old grant under conditions of GGO 14 dated 6th January, 1827.

7. According to appellants, as per terms of old grant, the appellants decided to resume the said property and, therefore, issued notice from its Ministry of Defence being Notice No. 701/27/L/L&C/71/3606/D(Lands) dated 11th June, 1971 to plaintiffs- respondents intimating the intention to resume the suit premises and also informed that the appellants are ready to pay a compensation of Rs.31,537/- as the value of the authorized erection made on the said land. The plaintiffs-respondents were informed that in case the amount of compensation offered is not acceptable to them, the committee of Arbitration will be convened to assess the value of the authorized erection on the land. The cheque for the said amount was attached with the aforesaid notice. The symbolic possession of the bungalow in question was taken on 12th July, 1971.

19. By the order dated 13th November, 1995, this Court allowed the review application thereby modifying the order dated 25th March, 1992 passed in Civil Appeal Nos.608-621 of 1980 by setting aside the order of dismissal of the aforesaid civil appeals as infructuous as there were no eviction decrees obtained by any of the bungalow owners.

21. The plaintiffs-respondents thereafter filed suit for possession, arrears of rent and damages against the defendants-appellants in the Small Causes Court at Pune numbered as Civil Suit No. 695 of 1999. It was contended therein that the defendants-appellants served resumption notice upon the plaintiffs-respondents which was challenged by the plaintiffs- respondents before the Bombay High Court in SCA No.1536 of 1973 which was allowed and the resumption notice was declared void, inoperative and without legal effect. The said order of the High Court was affirmed in Civil Appeal No.613 of 1980. The appellants filed review application and the same was disposed of recording the statement of learned Solicitor General. An Order which was passed by the High Court with respect to resumption notice was not set aside. Therefore, the occupation of defendants-appellants in the said property is that of lessee. The plaintiffs-respondents are, therefore, entitled to ask for possession of the property from the defendants-appellants as the defendants are trying to set up adverse title.

24.2 The issue no.3 was answered in negative with observation that the defendants have legal right of resumption. Mere exercise of such right does not mean that the defendants have denied the lease hold right over the land and ownership of the superstructure of the plaintiff. 24.3 Issue no.5 regarding the defendants being in arrears of rent since 17th July, 1979 to 30th June, 1999 @ Rs.196/- per month was answered in negative with the observation that there was no willful default on part of the defendants and the defendants have deposited arrears of rent along with interest there on @ Rs.9% per annum before the date of hearing of the suit. Thus, defendants are entitled to protections of eviction as per the provisions of sub section 3 of Section 12 of the Bombay Rent Act. The defendants were not in arrears of the rent on the date of hearing of the suit.

24.5 The issue no.4 regarding the plaintiffs’ entitlement to damages of Rs.4 lakhs was answered in negative for want of evidence. 24.6 The issue no.7 regarding the amount due to the plaintiff was answered in negative.

27. Being aggrieved by the aforesaid judgment dated 15th January, 2009 the appellants preferred Civil Revision Application No.272 of 2009 before the Bombay High Court. The Bombay High Court dismissed the same giving rise to the present appeal.

26. In Civil Appeal No.26 of 2006, the First Appellate Court by judgment and decree dated 15th January, 2009 while dismissed the appeal and modified the judgment and decree passed by the Trial Court holding that the plaintiffs-respondents are entitled to recover the amount of Rs.20,972/- along with cantonment taxes @ 6 per cent per annum from February, 2000 till the date of actual realization.

Military Estate Officer, Poona Circle, (Y.P. Kapoor) Copy to:-

51. The aforesaid misleading pleading made by the plaintiffs- respondents is without any evidence and the same influenced the Court in coming to a wrong conclusion that the plaintiffs-respondents are the landlords and defendants-appellants are the tenants of the suit premises.

52. The Appellate Court also failed to appreciate the evidence and erred in affirming the Trial Court’s view that the plaintiffs-respondents are the landlords and defendants-appellants are the tenants.

53. The land of the suit premises belong to the Union of India- appellants herein. Therefore, they cannot be held to be tenants of the suit premises comprising of an area of 0.90 acres together with structure consisting of main Bungalow, Servant Quarter and Garage.

55. For the reasons aforesaid, we set aside the impugned judgment dated 25th November, 2009 passed by the High Court of Judicature at Bombay in Civil Revision Application No.272 of 2009, the judgment dated 15th January, 2009 passed by the First Appellate Court and judgment and decree dated 9th June, 2005 passed by the Trial Court. Civil Suit No.695/1999 on the file of Small Causes Court, Pune is dismissed.

56. The appeal is allowed. No order as to costs.