Union Of India vs Vijay Krishna Uniyal (D) Thr. Lrs

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:

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 13 th 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:-

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)

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.

40. Accordingly, we set aside the aforementioned observations made by the High Court in paragraphs 17 and 18 of the impugned judgment dated 28 th 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 19 th 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.

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.

October 23, 2017.