UNION OF INDIA versus VIJAY KRISHNA UNIYAL (D) THROUGH LRS.
[2017] 14 S.C.R. 68, Supreme Court of India, 2017
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
A 
B 
[2017] 14 S.C.R. 68 
UNION OF INDIA 
v. 
VIJAY KRISHNA UNIYAL (D) THROUGH LRS. 
(Civil Appeal Nos. 16949-16950 of 2017) 
OCTOBER23,2017 
[KURIAN JOSEPH AND A. M. KHANWILKAR, JJ.] 
Government Land: 
Land in possession, on 'Old Grant' terms - Notice for 
C 
resumption of the land - Suit for permanent injunction - Seeking 
order restraining the State (defendant) and its officials from 
dispossessing him from suit property - Claiming title/ownership of 
the property vide registered sale deed - Also asserted occupancy 
rights and ownership rights on account of long and undisturbed 
possession - Plea of the defendant-appellant was that the land in 
D question was covered by Old Grant for national defence requirement, 
ownership whereof belonged to the defendant-appellant - Trial court 
as well as first appellate court held that the defendant was the owner 
of the land and possession of the plaintiff was limited to occupancy 
rights - High Court dismissed the second appeal upholding 
E concurrent finding of fact on the factum of ownership - However, 
the High Court·observed the plaintiff would have liberty to raise 
the issue of title during eviction proceedings - Review petition by 
the defendant dismissed - Appeal by the defendant to Supreme Court 
seeking that the observation made by the High Court in the impugned 
judgment be set aside - Plaintiff interalia took the plea that courts 
F 
below were not expected to decide the question of title in an 
injunction suit
simpliciter and that the defendant had failed to prove 
its title - Held: Mere possession of suit property by itself cannot be 
reckoned as an evidence on the issue of ownership - From the facts 
of the case, it is evident that it was well within the knowledge of the 
G plaintiff that the suit property belonged to Government (defendant) 
and the right which was transferred to him was only the right of 
enjoyment of possession of the said land granted under the Old 
Grant to his predec(!ssor-in-interest - Therefore, the observation 
made by the High Court is effaced as that observation was the 
foundation to give liberty to the plaintiff to agitate the question of 
H 
68
UNION OF INDIA v. VIJAY KRISHNA UNIYAL (D) THR. LRS. 
69 
title - The issue of 'ownership' cannot be called an ancillary issue . A 
examined by civil court to limited jurisdiction called upon to consider 
the relief of perma,nent Injunction simpliciter - It was a direct and 
substantial issue considered by all the courtsbe/ow - The finding 
ojfact is binding on the plaintiff' and would operate as constructive 
res judicata - In the facts of the case, the defendant was able to 
B 
prove its title - The plaintiff in absence ofchallenge to the High 
Court order, can neither succeed nor can be permitted to agitate 
before Supreme Court about the correctness of the findings recorded 
by courts below on the issue of ownership - The only issue that was 
left open by appellate courts was about determination of 
compensation for the structure in terms of Old Grant and C 
Regulations - Principle of Res Judicata. 
Constitution of India: 
Art. 136 - Scope of- Held: Plenary jurisdiction of Art. 136 
is not limited to the dispensation provided in Or. XL! r. 22 of CPC -
However. the Court cannot make an order, direction or decree placing D 
the party appealing to it, in a position more disadvantageous than 
in what it would have been, had it not appealed. 
Maxim: 
"Nemo dat quod non habet" - Applicability of 
Allowing the appeals, the Court 
E 
HELD: 1. The High Court has failed to analyse the matter 
in the manner it ought to have done whilst dealing with second 
appeal under Section 100
of the Code of Civil Procedure, 1908 at 
the stage of final hearing. The High Court in the present case 
has not even adverted to the two substantial questions of law as 
F 
were framed in terms of its order nor has it analysed the matter 
appropriately. [Para 21] [94-C-D] 
2.1 The High Court rejected the plaintiff's challenge to the 
concurrent finding on the issue of ownership and then finally 
concluded that the second appeal lacked merit and dismissed G 
the same. It is unfathomable how it could then observe that the 
evidence in the shape of registered sale deed dated 14'h August, 
1980 would prima facie show the ownership of the suit property 
of the plaintiff. Merely because the possession of the suit property 
was with the plaintiff, that by itself cannot be reckoned as an H
70 
SUPREME COURT REPORTS 
[2017] 14 S.C.R. 
A evidence on the issue of ownership of the suit property. [Para 
23) (95-A-C) 
2.2 The claim of the plaintiff for grant of permanent injunction 
was founded on his title and ownership of the suit property because 
of the registered sale deed dated 141h August, 1980. No doubt, 
B the High Court made reference to the document dated 141h August, 
1980 for recording its prima facie view about the ownership of 
the suit property of the plaintiff. It is also true that the registered 
sale deed dated 141" August, 1980, does not make any mention 
about the fact that the suit property was given to the predecessor 
C in title of the plaintiff under the Old Grant and classified as "B-3" 
category or that it belongs to the Government of India. 
Presumably, the High Court proceeded to record its prima facie 
view in paragraph 17, relying merely on the said registered sale 
deed. It completely glossed over the crucial fact that the sale 
deed was the culmination of the registered agreement to sell, 
D executed between the plaintiff (original respondent) and his 
predecessor in title dated 131" September, 1979, to which 
reference has been made in the registered sale deed. [Para 23) 
(95-C-E) 
2.3 The registered agreement to sell executed in favour of 
E 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. [Para 23) (95-G-H; 96-A) 
F 
2.4 This registered agreement to sell refers to the title and 
interest of the previous owner of the suit property which was 
derived by him from the immediate predecessor in title in terms 
of registered sale deed dated 1S1h December, 1970. Indisputably, 
even the said registered sale deed dated 1511' December, 1970 
restates the fact that the suit property belongs to the Government, 
G with limited right to enjoyment of possession thereof. There is 
one more registered sale deed which has come on record, dated 
2nd August, 1948. The same has bearing on the issue of ownership 
of the suit property. Even this sale deed concededly restates that 
the suit property vests in the Government. [Paras 24, 25) 
H [96-D-E, H; 97-AJ
UNION OF INDIA v. VIJAY KRISHNA UNIYAL (D) THR. LRS. 
71 
2.5 Indubitably, the plaintiff acquired the suit property under A 
the registered sale deed dated 14'h August, 1980 on the same 
terms and, therefore, executed the admission deed and 
declaration contemporaneously at the time of registration of the 
sale deed on 19'h August, 1980. [Para 26) [97-C] 
2.6 The plaintiff, advisedly, after receipt of the suit notice 
B 
dated 19'h August, 1985, wherein it is asserted that the suit 
property is Government land given under Old Grant classified as 
"B-3" category and that the Government wants to resume the 
same, chose to file suit simpliciter for permanent injunction 
against the appellant (defendant) from dispossessing the plaintiff C 
from the suit property pursuant to the suit notice. In the wake of 
clear stand taken in the suit notice, the plaintiff ought to have 
filed the suit for a declaration that the claim set-up by the 
defendant in the suit notice of ownership of the suit property is · 
illegal. Obviously, the plaintiff was aware that the only right passed 
on to him was for enjoyment of the suit property granted under D 
the Old Grant as class "B-3". The land belonged to the 
Government of India. [Para 27) (98-F-H] 
2. 7 The plaintiff did set up a claim of ownership of the suit 
property, firstly, on the basis of registered sale deed dated 14'h 
August, 1980; secondly, having occupancy rights in the suit E 
property which was analogous to ownership rights; and
thirdly, 
that the plaintiff has full ownership rights by adverse possession 
over the suit property being in long and undisturbed possession 
without payment of any rent for over 60 years. As regards the 
claim of absolute ownership of the plaintiff on the basis of rights 
derived under the registered sale deed dated 14'h August, 1980, 
F 
the same cannot be countenanced. In the backdrop of the factual 
position emerging from the registered agreement to sell dated 
13'h September, 1979, which preceded the execution of the subject 
registered sale deed dated 14'" August, 1980, the plaintiff executed 
the admission deed and declaration deed contemporaneously with 
G 
full understanding and knowledge. The High Court while 
recording prima facie opinion in paragraph 17; has not adverted 
to these essential facts and documents. [Para 28) (99-A-D] 
2.8 The appellant (defendant) is, therefore, justified in 
challenging the prima facie opinion noted in. paragraph 17 of the H
72 
SUPREME COURT REPORTS 
[2017] 14 S.C.R. 
A impugned judgment. That observation has been made despite 
having upheld the concurrent finding on the issue of ownership 
of the suit property rendered by two Courts below, as noted in 
paragraph 15 of the impugned judgment. The appellant must, 
therefore, succeed in this appeal to the extent that the first 
B sentence in paragraph 17 should be effaced. As that observation 
was the foundation to give liberty to the plaintiff to agitate the 
question of title over the suit property in the event the plaintiff 
was required to face eviction proceedings, the said liberty would 
also get effaced. In that event, it will not be permissible for the 
plaintiff or persons claiming through or under the plaintiff, to raise 
C the issue of ownership of the suit property in any proceedings 
henceforth or for that matter in collateral proceeding. [Para 28) 
[99-D-F] 
3. It is not correct to say that since the issue of title and 
ownership of the suit property was not directly and substantially 
D involved in the suit for permanent injunction simpliciter filed by 
the plaintiff, it would be open to the plaintiff or persons claiming 
through or under him to raise the issue of title of the suit property 
in collateral proceedings, such as eviction from the suit property. 
In the present case, the plaintiff challenged the suit notice dated 
19th August, 1985, on the assertion that he is the absolute owner 
E in possession of the suit property on
the basis of a registered 
sale deed dated 14th August, 1980. By this assertion, the plaintiff 
implicitly denied the claim of the appellant-defendant that the 
suit property belonged to the Government and was given under 
Old Grant falling in class B-3. Besides that assertion in the suit 
F 
notice, the appellant-defendant had also unambiguously asserted 
in the written statement filed to contest the suit stating that the 
suit property belonged to the Government of India and was given 
to the grantee under Old Building Grants falling in class B-3, 
amenable to resumption after giving one month's notice. In the 
backdrop of such pleadings, the Trial Court framed issues, 
G inclucling relating to ownership of the suit property. Similar contest 
was carried before the First Appellate Court. Even the First 
Appellate Court after analysing the documents held that it has 
been admitted by the plaintiff that the suit property vests in the 
Government of India which was amenable to resumption on 
H payment of compensation for construction to the grantee/
UNION OF INDIA v. VIJAY KRISHNA UNIYAL (D} THR. LRS. 
73 
occupant. The First Appellate Court, in no uncertain terms, A 
concluded that the suit property belonged to the Government of 
India and the plaintiff was not the owner of the suit property but 
merely enjoyed right to possession thereof under the Old Grant 
as derived by him from his predecessor in title. Thus, it is not a 
case of ancillary issue examined by the civil court of limited B 
jurisdiction called upon to consider the relief of permanent 
injunction simpliciter. It was a direct and substantial issue 
considered by the Trial Court and upheld by th,e First Appellate 
Court and for that matter, even by the High Court, while dismissing 
the second appeal on the ground that it lacked merit. [Para 29) 
[99-G-H; 100-A-G) 
. C 
4.1 In the fact situation of the present case, it was not a 
complicated issue on facts or law, considering the indisputable 
recitals in the registered agreement to sell and the registered 
sale deeds coupled with the admission deed and the declaration 
deed contemporaneously executed by the plaintiff. In such a D 
situation, the finding of fact recorded against the plaintiff will bind . 
the plaintiff and operate as constructive res judicata in a 
subsequent suit for declaration of title or otherwise. [Para 29) 
[100-G-H; 101-A) 
Anathula Sudhakar v. P. Buchi Reddy (Dead) by LRs. 
and Ors. (2008) 4 SCC 594 : (2008] 5 SCR 331 ; 
Gram Panchayat of Village Naulakha v. Ujagar Singh 
and Ors.
(2000) 7 SCC 543; Purshottam Das Tandon 
(Dead) by Legal Representatives v. Military Estate 
Officer & Ors. (2014) 9 SCC 344 : [2014] 7 SCR 1085; 
Sajjadanasltin Sayed Ji,'D. B.E. EDR (D) by LRs. v. Musa 
Dada~hai Ummer and Ors. (2000) 3 SCC 350 : 
(2000] 1 SCR 1095 - distinguished. 
4.2 The liberty given by the High Court to the plaintiff is 
limited to raise the issue of title relating to the suit property in 
E 
F 
the event any eviction proceedings are resorted to by the G 
appellant. Such liberty, will be hit by principles of constructive 
res judicata in the fact situation of the present 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. [Para 
36] [105-G-H; 106-A) 
H
74 
SUPREME COURT REPORTS 
[2017] 14 S.C.R. 
A 
5. It is true that in the present case, the appellant (defendant) 
did not produce the Old Grant in relation to the suit property, but 
had produced the GLR extract. It is well settled that GLR extract 
is conclusive of the fact that the land is covered by Old Grant 
and the rights enjoyed by the plaintiff were merely possessory or 
B occupancy rights in respect of the structures thereon. [Para 33) 
[105-B-C] 
c 
Usha Kapoor and Ors. v. Government of India and Ors. 
(2014) .16 SCC 481 : [2014) 9 SCR 401 - relied on. 
Satyendra Kumar (Dead) through LRs. v. Mast Ram 
Uniyal (Dead) though LRs (2013) 14 SCC 367; Union 
of India v. Purushotam Dass Tandon and Anr: (1986) 
Suppl. SCC 720 - referred to. 
Cantonment Laws by J.P. Mittal - referred to. 
6.1 The appellant (defendant) alone has assailed the 
D impugned judgment. The plaintiff (original respondent) has 
acquiesced of the decree rejecting the relief of permanent 
injunction, having failed to file cross appeal or for that matter 
cross objections against the impugned judgment. In absence of 
any challenge to the judgment and decree passed by the High 
Court in second appeal rejecting the second appeal on the ground 
E that it lacked merit, the respondents (successors in title of the 
plaintiff) can neither succeed nor can be permitted to agitate 
before this Court about the correctness of the finding recorded 
by the Courts below on the issue of ownership of the suit property
of Government of India and that the plaintiff is not the absolute 
F owner thereof. The finding of fact so recorded will bind the 
respondents. The only issue that has been left open in terms of 
the decree passed by the First Appellate Court and upheld by 
the High Court consequent to rejection of the second appeal, is 
about determination of compensation for the structure in terms 
of the Old Grant and regulations in relation thereto. 
G Determination of appropriate and reasonable compensation can 
be done even later by referring the matter to the Arbitrator as 
per the regulations. That, therefore, cannot come in the way of 
the appellant to proceed further on the basis of the suit notice 
dated 19th August, 1985, the validity whereof is unassailable. 
H [Paras 21, 34 and 35) [99-D-E; 105-C-H)
UNION OF INDIA v. VIJAY KRISHNA UNIYAL (D) THR. LRS. 
75 
Union of India and Ors. v. Harish Chand Anand (1995) 
A 
Suppl. 4 SCC 113 : [1995] ·2 Suppl. SCR 347 - relied 
on. 
6.2 Moreover, permitting the respondents to argue beyond 
the facts admitted in the registered agreement to sell and the 
registered sale deeds and the admission deed as well as the 
B 
declaration deed, will be to encourage an argument that the 
plaintiff has derived title in the suit property more than what his 
predecessors in title have had enjoyed - of occupancy/possessory 
rights alone. The maxim - Nemo dat quod non habet must be borne 
in mind, which means no one gives what he does not possess. 
There is no legal basis to relegate the parties before the High . C 
Court for fresh consideration of the second appeal. (Para 32) 
[104-D-E) 
6.3 The plenary jurisdiction of this Court under Article 136 
of the Constitution is not limited to the dispensation provided in 
Order XLI Rule 22 of CPC. However, permitting the respondents 
D 
to assail the findings of the Courts below on the issue of ownership 
of property would be to overlook the cardinal principle that the 
Court would not ordinarily make an order, direction or decree 
placing the party appealing to it in a position more 
disadvantageous than in what it would have been, had it not 
appealed. Further, the impugned judgment of the High Court E 
dismissing the second appeal was certainly not in favour of the 
plaintiff. It was to uphold the
decree and order rejecting the relief 
of permanent injunction. Therefore, the argument now canvassed 
by the respondents will not be for sustaining the operative order 
or decree passed by the High Court as such. For, if accepted, it 
will inevitably entail in not only reversing the concurrent findings 
recorded by the Courts below on the issue of ownership but would 
also necessitate reversal of the decree passed by the Courts below 
rejecting the relief of permanent injunction. That could be done 
·only if the plaintiff were to challenge the decree of rejection of 
F 
the relief of permanent injunction in reference to the suit notice. 
G 
Absent such a challenge by way of an appeal or cross objection, 
the decree to be sustained will be that of the First Appellate Court 
of partly allowing the appeal of the plaintiff (original respondent) 
to the extent of claim of compensation on the premise that the 
plaintiff will get compensation towards construction in terms of 
the regulations. [Para 32) [103-F-H; 104-A-C) 
H
76 
A 
B 
SUPREME COURT REPORTS 
[2017] 14 S.C.R. 
Ravinder Kumar Sharma v. State of Assam and Ors. 
(1999) 7 SCC 435 : [1999) 2 Suppl. SCR 339; S. Nazeer 
Ahmed v. State Bank of Mysore and Ors. (2007) 11 SCC 
75 : [2007] 1 SCR 843 ; Balbir Kaur and Am: v. Uttar, 
Pradesh Secondary Education Services Selection 
Board, Allahabad and Ors. (2008) 12 SCC 1 : [2008) 
9 SCR 130; Management of Sundaram Industries 
Limited v. Sundaram Industries Employees Union 
(2014) 2 SCC 600 : [20131 16 SCR 1090 - relied on. 
7. A priori, in furtherance of notice dated 191" August, 1985 
the appellant is free to take possession of the suit property in 
C accordance with law. However, the respondents are granted time 
to hand over vacant and peaceful possession of the suit property. 
[Para 401 [l06·F) 
D 
E 
F 
G 
H 
State of U.P. v. Zahoor Ahmeda and Am: (1973) 2 SCC 
547 : [1974) 1 SCR 344 ; Chief Executive Officer v. 
Surendra Kumar Vakil & Ors. (1999) 3 SCC 555 : 
[1999) 2 SCR 118 ; Union of India and Ors. v. Kam/a 
Verma (2010) 13 SCC 511 : [2012) 6 SCR 960 ; Azim 
Ahmad Kazmi and Ors. v. State of Uttar Pradesh and 
Am: (2012) 7 SCC 278 ; Union of India and Ors. v. 
Robert Zomawia Street (2014) 6 SCC 707 : [2014) 4 
SCR 156 ; Purshottam Das Tandon (Dead) by Legal 
Representatives v. Military Estate Officer and Ors. 
(2014) 9 sec 344 : [20141 7 SCR 1085; Gopal 
Krishnaji Ketkar v. Mahomed Haji Latif and Ors. 
[1968) 3 SCR 862; National Insurance Co. Ltd., New 
Delhi v. Jugal Kishore and Ors.
(1988) 1 SCC 626 ; 
Express Newspapers Pvt. Ltd. and Ors. v. Union of India 
and Ors. (1986) 1 SCC 133 : [1985) 3 Suppl. SCR 
382 ; Muhammad Imam Ali Khan v. Sardar Husain Khan 
(1897-98) 25 IA 161; Nagubai Ammal and Ors. v. B. 
Shama Rao and Ors. [1956) 1 SCR 451 ; Kishori Lal v. 
Chaltibai (19591 1 Suppl. SCR 698 - referred to. 
Case Law Reference 
[19951 2 Suppl. SCR 347 
[19741 1 SCR 344 
relied on 
referred to 
Para 14 
Para 14
UNION OF INDIA v. VIJAY KRISHNA UNIYAL (D) THR. LRS. 
77 
[1999) 2 SCR 118 
referred to 
Para 14 
A 
[2012) 6 SCR 960 
referred to 
Para 14 
(2012) 1 sec 278 
referred to 
. Para 14 
[2014) 4 SCR 156 
referred to 
Para 14 
[2014] 7 SCR 1085 
distinguished 
Para 14 
[2014] 9 SCR 401 
relied on 
Para 14 
B 
[2008) 5 SCR 331 
distinguished 
Para 16 
[2000) 1 SCR 1095 
distinguished 
Para 16 
c2000) 7 sec 543 
distinguished 
Para 16 
· (1986) Suppl. sec no 
referred to 
Para 16 
c 
(2013) 14 sec 367 
referred to 
Para 16 
[1999) 2 Suppl. SCR 339 
relied on 
Para 16 
[2007) 1 SCR 843 
relied on 
Para 16 
[2008) 9 SCR 130 
relied on 
Para 16 
[2013) 16 SCR 1090 
relied on 
Para 16 
D 
[1968] 3 SCR 862 
referred to 
Para 17 
(1988) 1 sec 626 
referred to 
Para 17 
[1985) 3 Suppl. SCR 382 
referred to · 
Para 17 
(1897-98) 25 IA 161 
referred to 
Para 17 
E 
[1956) 1 SCR 451 
referred to 
Para 17 
[1959) 1 Suppl. SCR 698 
referred to 
Para 30 
[2014] 7 SCR 1085 
referred to 
Para 32 
CNILAPPELLATE JURISDICTION: Civil Appeal Nos. 16949-
16950 of2017. 
F 
From the Judgment and Order dated 28.02.2008 and 19.06.2008 
of the High Court of Nanital in Second Appeal No. 206 of 200 l and 
Review Petition No. 668 of2008. 
A. K, Sanghi, Sr. Adv., Ms. Alka Agrawal, Mukesh Kumar 
G 
Maroria, Advs. for the Appellant. 
U. U. Singh, Sr. Adv., Ardhendumauli Kumar Prasad, Namit 
Saxena, Ms. Taruna Ardhendumauli Prasad, Nirmal Kumar Ambastha, 
Rishi Kumar Singh Gautam, Advs. for the Respondents. 
H
78 
SUPREME COURT REPORTS 
[2017] 14 S.C.R. 
A 
The Judgment of the Court was delivered by 
A. M. KHANWILKAR, J. 1. Leave granted. 
2. These appeals emanate from the judgment and decree dated 
281h February, 2008 of the High Court of Uttarakhand at Nainital in 
Second Appeal. No.206of2001 and also the order dated l 9'h June, 2008 
B in Review Application No.668 of2008. 
3. The central issue involved in these appeals is: whether the High 
Court, while dismissing the second appeal filed by the plaintiff (original 
respondent) being devoid of merit and despite upholding the concurrent 
finding of fact recorded by two Courts below on the factum of ownership 
C of the land, was justified in making an observation which has the potential 
of reopening the already settled issue of title in respect of the suit 
property? 
4. The original respondent Vijay Krishna Uniyal, claiming to be 
the owner and in possession of the immovable property admeasuring 
D 3.398 acres, known as Wolfsbum 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 19'
11 August, 1985 issued by the Under Secretary to 
E 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 the land together with structures standing
thereon, to the agent of 
Government (Defence Estate Officer, Meerut Circle, Meerut 
Cantonment), on the expiry ofone month's notice from the date of its 
receipt. It was also made amply clear that on expiry of the said period, 
F any right regarding occupation or easement and interest in the said 
property shall cease to exist. The said notice reads thus: 
G 
H 
"No. 70I164/R&DIL&C/7411805/D(Lands) 
Government of India, Ministry of Defence. 
To Shri. Vijaya Krishan Uniyal, 
Sy. No. 11, Wolf Burn Estate, 
Landour Cantonment 
New Delhi 
19'h Aug, 1985
UNION OF INDIA v. VIJAY KRISHNA UNIYAL (D) THR. LRS. 
79 
[A. M. KHANWILKAR, J.) 
NOTICE 
A 
WHEREAS the land comprising Sy. No.11 the site of B. No. 
known as Wolf Burn Estate, Landour Cantonment measuring 
3.398 acres and bounded as follows: 
On the North by Sy. No.13 
On the South by Sy. No.173 and 163 
On the East by Sy. No.170 
On the West by Sy. No.163 
B 
Belongs to the President of India (hereinafter called the Govt.) 
C 
and is held by you on 'old Grant' terms under the Governor 
Genera/order No.179 of 12.9.1836 under hw Government 
are entitled to resume the said land. 
2. AND WHEREAS Government has decided to resume the 
said land and the buildings standing thereon. 
3. NOW therefore, in exercise of the power hereinafter 
mentioned, the Government hereby give notice to you to quit 
D 
and deliver possession of the aforesaid land together with 
structures standing thereon to the agent for government E 
(Defence Estates Officer, Meerut Circle, Meerut Cant!), on 
the expiry of the one month notice from the date of receipt of 
this notice. Please note that on the expiry of one month from 
the date of service of this notice your occupation and any 
right easement and interest you may have in the said land F . 
and buildings standing thereon shall cease as from that date. 
4. TAKE NOTICE further that Government are prepared to 
pay and so offer you the sum of Rs.17,2751- (Rupees Seventeen 
thousand two hundred and seventy five) only as the value of 
the authorised
erections standing on the aforesaid land. A 
G 
cheque for this amount is enclosed herewith. 
Sd/-
(A.K. GOYAL) 
Under Secretary to the Government of India 
For and on behalf of President of ·India" 
(emphasis supplied) 
H 
-, - .
80 
SUPl 
MB COURT REPORTS 
[2017] 14 S.C.R. 
A 
5. After receipt of the said notice, the original respondent filed a 
civil suit before the Court of Civil Judge, Court No. l, Dehradun, 
Mussoorie, being Suit No.484of1985, for simpliciter permanent injunction 
restraining the appellants, its officers' or representatives and servants 
from dispossessing him from the suit property pursuant to the 
B aforementioned notice dated 19'h August, 1985. An alternative relief 
was prayed that a reasonable and adequate compensation in respect of 
the suit property be determined by the appellant on the principles laid 
down by law, for acquisition of the immovable property after giving an 
opportunity to the plaintiff (original respondent) of being heard before he 
is compelled to deliver possession of the suit property to the appellant. 
C The reliefs claimed in the said suit read thus: 
D 
E 
F 
G 
H 
"The plaintiff therefore, begs to claim a decree against the 
defendant for:-
1. Permanent injunction restraining the defendant, its 
officers, representatives and servants from dispossessing the 
plaintiff from the immovable property known as Wolfsburn 
Estate, situate at Survey No.11, Landour Cantonment, 
Mussoorie in pursuance of the notice No. 701164/R&DIL&C/ 
7411805/D Lands dated 1911' August 1985 issued by the 
Under Secretary to the Government of lndia. Ministry of 
Defence, New Delhi. In the AlternatiFe a reasonable and 
adequate compensation for Wolfsburn Estate be determined
by the defendant on the principles laid down by law for the 
acquisition of the immovable property after giving an 
opportunity to the plaintiff of being heard and paid to the 
plaintiff before he is made liable to deliver possession of the 
said property to the defendant. 
2. Full costs of this suit against the defendant. 
3. Any other relief or reliefs which in the opinion of the 
learned Court the plaintiff is entitled to. 
Vijay Krishan Uniyal 
Plaintiff 
By the pen of 
(lndu Mouli Uniyal) 
Duly constituted attorney" 
6. From the tenor of the plaint, it is amply clear that the suit was 
filed on the basis of title acquired by the plaintiff in the suit property vide
UNION OF INDIA v. VIJAY KRISHNA UNIYAL (D) THR. LRS. 
81 
. [A. M. KHANWILKAR, J.] 
·registered Sale Deed dated 14'h August, 1980. On that assertion, it is A 
pleaded that the defendant has no right to take possession of the ~uit 
property in the guise of being owner thereof. The plaintiff claimed to be 
in settled occupation of the suit property. The plaintiff also asserted that 
he has occupancy rights in the suit property which were analogous to 
the ownership rights vested in him. On that basis, it was pleaded that B 
possession of the suit property can be taken over only by way of 
acquisition and payment of reasonable compensation therefor to the 
plaintiff. The plaintiff also set up an alternative plea that he has acquired 
full ownership rights in the suit property on account oflong and undisturbed 
possession, without payment of any rent for over 60 years. 
7. The assertions made by the plaintiff were contested by the 
C 
appellant by filing written statement. It was categorically stated that the 
plaintiff, under the registered sale deed, had purchased only occupancy 
.rights from the previous holder and was not the absolute owner of the 
property. The property belongs to the appellant and it was open to the 
appellant to resume the same in terms of Old Grant for national defence 
D 
requirement. The appellant categorically denied the assertion of the 
plaintiff that the occupancy rights were analogous to ownership rights or 
that the plaintiff had become the
absolute owner of the suit property by 
· adverse possession. It was asserted by the appellant that it wanted to 
resume the land which was granted originally on Old Grant terms to a 
private occupancy holder. It is not a case of acquisition of the suit property 
E 
but resumption thereof, in terms of the stipulations in the· Old Grant. 
Regarding the prayer for awarding reasonable compensation, the appellant 
stated that it was open to the plaintiff (original respondent) to request 
the Government to constitute a Committee of Arbitration for determination 
of reasonable compensation in terms of the Old Grant regulations issued 
by the then Governor General in Council vide General Order No.179 
dated 12th August, 1836. It was also asserted by the appellant that it 
was incorrect to contend that the plaintiff was not offered any 
compensation at all. Further, the plaintiff will be entitled for suitable 
compensation only in respect of the structures and not in relation to the 
land as such. The appellant, thus, prayed that the suit deserves to be 
dismissed. On the basis of the pleadings, the Trial Court fra!'ned four 
issues which read thus: 
"1. Whether the plaintiff is absol11te owner of the property 
in disp11te and as such the property cannot be res11med? 
F 
G 
H
82 
SUPREME COURT REPORTS 
[2017] 14 S.C.R. 
A 
2. 
Whether the suit is bad for want of notice u/s 80 of 
B 
C.PC.? 
3. 
Whether the defendant has right to resume the property 
and the plaintiff is entitled only for the compensation? 
4. 
Relief? " 
(emphasis supplied) 
8. Both the parties adduced oral and documentary evidence in 
support of their respective stand. The Trial Court, however, answered 
the issues against the plaintiff (original respondent) and has held that the 
C suit property belongs to the Government of India. Further, the possession 
of the plaintiff (original respondent) was limited to occupancy rights therein 
derived from the Old Grant in favour of his predecessor in title. The 
Trial Court held that the defendant had right to resume the property and 
the plaintiff (original respondent) was entitled only to get compensation 
for the structure. Accordingly, the Trial Court dismissed the suit in entirety 
D vide judgment and decree dated 16th October, 1997. 
E 
9. Aggrieved, the plaintiff (original respondent) filed Civil Appeal 
No.69of1997 before the Court of Additional District Judge-II, Dehradun. 
The Appellate Court formulated four points for its consideration, which 
read thus:-
" I. Whether appellant/plaintiff happens to be owner of suit 
property? 
2. 
Whether effect of non-issuance of notice of section 80 
C.PC. is detrimental? 
F 
3. 
Whether defendants/respondents have got rights in the 
G 
H 
4. 
property and plaintiff is entitled, to get
compensation 
only? 
,, 
Whether the plaintiff is entitled /o get the relief(s) 
sought?" 
(emphasis supplied) 
The Appellate Court, after analysing the evidence and documents and 
· admission deed executed by the plaintiff, available on record, answered 
the questions posed before it, in particular regarding the ownership of 
the suit property. The First Appellate Court upheld the finding of fact
UNION OF INDIA v. VIJAY KRISHNA UNIYAL (D) THR. LRS. 
83 
[A. M. KHANWILKAR, J.] 
. recorded by the Trial Court - that the suit property belongs to the A 
Government oflndia and the plaintiff (original respondent) was not the 
owner thereof. The relevant extract from the decision of the First 
Appellate Court reads thus: 
"] heard both the parties and perused the evidence & 
document available on record. Question before me is as to :B 
whether appellant/plaintiff happens to be owner of suit 
property or not? Second question is as to w,hether notice 
dated 091h August, 1985 which was issued to the appellant, 
the same was to as per rules or not. Another question is as 
to whether appellant is entitled to get any compensation or 
not? 
C 
As far as ownership is concerned, document which was filed 
by the appellant/plaintiff in support of his case, he filed the 
sale deed 23Al in those documents. 
According to the same, he purchased this property from S. 
D 
Jodh Singh, S. Jogender Singh, S. Harbhajan Singh, S. Ranjit 
Singh and others. Thus, defendant/respondents if have 
raised this contention that this land belonged to the 
Government of India. Appellant/plaintiff does not have 
ownership right on this property. In support of this case they 
filed documents vide list 20C and 27C and documents were 
E 
filed through 35C also in which 38C is the said admission 
deed in. which appellant/plaintiff has admitted that a this 
property vests in the Government of India an in the
declaration deed 39C, it has been .admitted that rights of 
Government of India vest in this Property and it was also 
F 
admitted that if its resumption is done, then compensation 
for the construction would be paid to him. Similarly, Jogender 
Singh who sold this property to appellant/plaintiff, he too 
had executed such deed in favour of opposite party. From 
these documents, it becomes evident that this suit place 
belongs to the Government of India and appellant/plaintiff G 
is not owner of the suit land. Thus, this conclusion ·of the 
learned lower court is as per rules land according to the 
records." 
(emphasis supplied) 
H
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[2017] 14 S.C.R. 
A 
I 0. As regards the question of compensation, the First Appellate 
Court opined that the plaintiff (original respondent) would be entitled for 
. compensation for which he must first approach the Government for 
appointment of an Arbitrator to determine appropriate compensation to 
be paid to him. Resultantly, the First Appellate Court was pleased to 
B partly allow the appeal by setting aside the judgment of the Trial Court 
only on the issue of compensation. The operative order passed by the 
First Appellate Court modifying the decree passed by the Trial Court, 
reads thus: 
c 
D 
"ORDER 
Appeal of the appellant is allowed partially and judgment 
of lower court about compensation is set-aside. Appellant/ 
plaintiff is entitled to get compensation for the suit property 
he would submit application to the defendants for this 
compensation and after hearing, defendant would determine 
this compensation. Both parties to bear their respective 
expenses. " 
11. Against the decision of the First Appellate Court, the plaintiff 
(original respondent) approached the High Court of Uttarakhand at 
Nainital by way of Second Appeal No.206 of 2001. After hearing the 
parties, the learned Single Judge of the High Court vi de order dated 14
111 
E July, 1999, was pleased to admit the second appeal by framing two 
substantial questions oflaw. The said order reads thus: 
"Heard Sri Ravi Kiran Jain, learned Senior Counsel 
appearing for the
appellants. 
It is submitted that by notice dated 19.08.1985 as contained 
F 
in annexure-2 to the affidavit, the property in question was 
resumed by the respondent and an amount of Rs.17,2751-
was offered as compensation. It is submitted that the amount 
of compensation was arrived at arbitrarily withou(giving 
any opportunity to the appellant for determining the amount 
G 
of compensation. The submission is that the appellant cannot 
be dispossessed and the respondent a cannot resume the land 
on the basis of such a notice. His next submission is tha( no 
evidence has been adduced to the effect that the land belongs 
to the respondent. The defendant respondent have relied 
upon certain admission of the plaintiff/appellant which alone 
H 
is not enough.
UNION OF INDIA v. VIJAY KRISHNA UNIYAL (D) THR. LRS. 
85 
[A. M. KHANWILKAR, J.] 
Learned Counsel relies upon the Judgment of this Court in 
A 
Second Appeal No.286of1978 Purshottam Das Tandon Vs. 
·Union of India, decided on 27'h November, 1981. 
:Having heard learned counsel for the appellant and having 
considered the Judgment reference to in support of his 
arguments, the appeal is admitted on the following substantial 
B 
questions of law:-
1. 
Whether the notice dated 19.08.1985 would entitle the 
defendant respondent to resume the land and dispossess 
the plaintiff appellant without giving· him opportunity 
of hearing for determining the amount of c 
compensation? 
2. · Whether in the absence of any other evidence adduced 
by the defendants respondents, on the basi~ of alleged 
admission of the plaintiff/appellant, alone the property 
can be held to be belonging t<i the respondents and can · D 
thereby be resumed by them? 
· 
Issue notice to the respondents. 
Call for record of the trial court and list for hearing on 
21" September, 1999." 
E 
(emphasis supplied) 
12. The second appeal was finally heard by the learned Single 
Judge and byjudgment and decree dated 28'h February, 2008, it was 
dismissed on the finding that it lacked merit. For the purpose ofexamining 
the issues as have arisen for consideration of this Court, it will be useful 
to reproduce the relevant portion from the said decision which reads 
thus: 
''xxx., · 
xxx 
xxx 
. 15. So far as the aforesaid
submission· made by counsel for 
F 
.. the.appellant with regard to .ownership is concerned, both.· G 
. the courts below have given the concurrent findings on this •· 
. issue have' come to the co'nclusiOIJ that the prope_rty belong:. ' 
to the Union of India. 
- . 
' 
. 16. XXx 
xxx 
·-
xxX-
17. Counsel for the appellant has P_ressed on the registered H
86 
A 
B 
c 
D 
SUPREME COURT REPORTS 
[2017] 14 S.C.R. 
sale deed dated 14.08.1980 executed in his favour which 
shows a prima facie case with regard to ownership of the 
property in dispute in his favour. Perusal of record also 
reveals that the plaintiff is in possession of the same. 
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 li~erty 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) 
13. The appellant is aggrieved by the observations made by the 
learned Single Judge in paragraphs 17 and 18, which, according to the 
appellant, has the potential of takingiaway the effect of the concurrent 
finding of fact recorded by two courts below and upheld by the High 
E Court; and would embolden the respondent to re-agitate the issue of 
ownership which has already been settled. Therefore, the appellant filed 
Review Application No.668 of2008 before the High Court in the disposed 
of Second Appeal No.206 of 2001. The learned Single Judge vide
judgment and order dated J 9tl• June, 2008, however, dismissed the said 
review application. The order passed on review application reads thus: 
F 
G 
H 
"Heard Sri. D. Barthwal, counsel for the appellant and none 
for the respondent. 
Present application has been filed for reviewing the order 
dated 28.2.2008 as mentioned in paragraph 3 to the following 
effect: 
'3. Because of the aforesaid finding even though the second 
appeal of the plaintiffs has been dismissed the Hon 'hie High 
Court took away effect of the concluded findings of fact 
and left the matter to be re-agitated again which is illegal 
and improper. '
UNION OF INDIA v. VIJAY KRISHNA UNIYAL (D) THR. LRS. 
87 
[A. M. KHANWILKAR, J.] 
I have already referred that there is a registered sale deed in 
A 
favour of the appellant on J41h August 1980 executed in his 
favour. In the written filed by the defendant, it was stated 
that the plaintiff is not the owner of the property in question 
and the plaintiffs was entitled for compensation only onJhe 
resumpfion of the property. 
. • 
In view of the aforesaid, I have directed that the appellant 
shall not be evicted from the property in dispute except in 
accordance with law and he shall get full opportunity to 
defend himself, if the proceedings are initiated against him. 
B 
In view of the aforesaid, no ground for review is made out. 
C 
Review application is dismissed. " 
· 14. The appellant has, therefore, approached this Court by way of 
these appeals challenging both the decisions of the learned Single Judge 
of the High Court, against the observations made in paragraphs 17 and 
18 of the impugned judgment dated 28th February, 2008 whilst dismissing D 
the second appeal and also the judgment dated 19th June, 2008 in Review 
Application. According to the appellant, the observations were wholly 
unwarranted and are in the teeth of the concurrent finding of fact recorded 
by two Courts on the issue of ownership of the property and also opposed 
to the settled legal position. It is contended by the appellant thatthe suit 
E 
property was held by the plaintiff (original
respondent) on Old Grant 
terms which was classified as B-3 category. The property changed hands 
by sale deed dated 2•d August, 1948 from Charles Gorden Stewart to 
Mrs. E. Walsh and then from Mrs. E. Walsh to Sardar Kartar Singh and 
others vide sale deed dated 15th December, 1970 and finally from Sardarni 
Satwant Kaur to Shri Vij ay Krishna Uniyal, plaintiff (original respondent) 
F 
vide sale deed dated 14'h August, 1980. From these documents, it was 
evident that the transferors have had transferred only the buildings in 
favour of the transferees and it is clearly stated in each of these registered 
sale deeds that the land and trees are the property of the Government of 
India. Thus, the land and trees could never have been purchased by any 
G 
of the transferees. The appellant has relied on the terms of the Old 
Grant governed under GGI 170 dated 12'h September, 1836, which enabled 
the Government to resume the Old Grant after giving one month's notice. 
According to the appellant, the regulations empowering the Governor 
General to rescind or substitute authorisJd orders in force are statutory 
regulations. Further, the High Court and the Subordinate Courts did not H
88 
SUPREME COURT REPORTS 
[2017] 14 S.C.R. 
A find any infirmity in the suit notice dated 19th August, 1985 which was 
issued to resume the suit property. It was, therefore, not open to the 
High Court to make any observation which has had the pot~ntial of 
giving rise to reopening the finding regarding title and o~ners.h1p of th~ 
property already adjudicated upon, direct!~ a~d sub~t~ntially m the smt 
for permanent injunction filed by the plamtlff (ongmal respondent). 
B According to the appellant, the plaintiff(original respondent) was not 
the absolute owner of the suit property. That factual position was admitted 
by the plaintiff (original respondent) vi de registered admission deed da~ed 
14'h August, 1980 and declaration deed dated 14'h August, 1980, which 
unambiguously record that the ownership right in the suit property was 
C that of Union of India. Further, it is also declared that the Union of India 
had the right to resume the property. These documents were 
contemporaneously executed along with the sale deed dated 14th August, 
1980, which was registered on l 9'h August, 1980. Further, the plaintiff 
had raised the issue of ownership and title on the basis of the registered 
D sale deed dated l 4'h August, 1980 and invited the Trial Court as well as 
the First Appellate Court to adjudicate the issue of ownership of the 
property. Therefore, it is not open to the plaintiff (original respondent) to 
now contend that the said issue was only ancillary to the
relief of 
permanent injunction as prayed against the appellant to cease and desist 
from going ahead with the suit notice dated l 91h August, 1985. Moreover, 
E the plaintiff(original respondent) in the second appeal invited.the High 
Court to formulate two substantial questions oflaw, which were ascribable 
to the concurrent finding of fact, recorded by two Courts below, about 
the ownership of the suit property. According to the appellant, the original 
respondent did not press or argue the first substantial question of law 
F before the High Court,.knowing full well that the decision in the case of 
Union of India aµd Ors. Vs. Harish Chand Anand, 1 was directly on 
the point wherein it has been held that the amount of compensation 
would be determined under the relevant provisions after giving opportunity 
to the occupant, which could be done even after resuming the suit property 
and taking possession. In that, determination of value of the building 
G erected on the land under resumption was a ministerial act and the 
payment thereof was the resultant consequence. According to the 
appellant, on the second substantial question oflaw, the two Courts below 
concurrently found, as of fact, that the ownership of the suit property 
was of the Government oflndia and it was duly admitted by the plaintiff 
· H 
'1995 Supp. (4) sec 113
UNION OF INDIA v. VIJAY KRISHNA UNIYAL (D) THR. LRS. 
89 
[A. M. KHANWILKAR, J.] 
. (original respondent) in the declaration contemporaneously executed at 
A 
the time ofregistration of the sale deed in his favour, dated l 4'h August, 
1980. The appellant relies on the decisions of this Court in support of the 
argument that if the land was covered by the Old Grants and categorised 
as B-3, it was open to the Government to resume the land after giving 
one month's notice in terms of the Old Grant and regulations framed 
B 
thereunder. Reliance has been placed on State of U.P. Vs. Zahoor 
Ahmeda and Anr., 2 Harish Chand Anan4, (supra), Chief Executive 
Officer Vs. Surendra Kumar Vakil & Ors.,3 Union of India and 
Ors. Vs. Kam/a Verma,4 Azim Ahmad Kazmi and Ors; Vs. State of 
Uttar Pradesh and Anr.,5 Union of India and Ors. Vs. Robert 
Zomawia Street, 6 Purshottam Das Tandon (Dead) by Legal C 
Representatives Vs. Military Estate Officer and Ors.,1 and Usha 
Kapoor and Ors. Vs. Government of India and Ors. 8 
15. The appellant would contend that the plaintiff is entitled only 
· for reasonable compensation for the structure standing on the suit 
property. According to the appellant, the continued possession of the 
D 
plaintiff (original respondent) despite such notice is illegal possession. 
This view taken by the two Courts below has not been overturned by 
the High Court. As a matter of fact, the High Court dismissed the second 
appeal· on the finding that it lacked merit.
Ho~ever, by a sweeping 
observation it has undermined the concurrent finding of fact regarding ·· · 
ownership of the subject land recorded by two Courts below without 
E · 
reversing the same. Thus, the prima facie opinion noted by the learned 
Single Judge is contrary to the indisputable facts and the material on 
record and as such, the liberty granted to the plaintiff (original respondent) 
to take up the plea of ownership of the suit property in the proposed 
eviction action, cannotbe countenanced. That plea would be barred by 
F 
the principles of constructive res judicata . .In response to the stand 
taken by the respondents before this Court, it was contended that it is 
not open to the respondents in these appeals of the defendant (appellant), 
to invite this Court to overturn the concurrent finding of fact in relation 
to the issue of ownership of the suit property, having failed to challenge 
G 
• 2 (1973)2 sec 547 
· '(1999)3 sec 555 
• c2010) 13 sec 511 
'(2012) 1sec21s 
'· (2014) 6sec101 
. 1 (2014) 9 sec 344 
• '(2014)16SCC481 
" 
.. '
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SUPREME COURT REPORTS 
[2017] 14 S.C.R. 
A the decree of dismissal of the suit for relief of permanent injunction on 
the basis of title and ownership of the plaintiff in the. suit property. 
Admittedly, the plaintiff did not file a suit for appropriate declaration 
despite the assertion of the defendant in the suit notice regarding its 
ownership. Besides, the plaintiff had clearly admitted the ownership of 
B the suit property of the Government of India as stated in the declaration 
contemporaneously executed along with the registered sale deed. 
Admittedly, the sale deed makes reference to the registered agreement 
to sell. The recitals and stipulations in the registered agreement to sell, 
executed in favour of the plaintiff, dated 13'h September, 1979 which 
was prelude to the execution of the subject registered sale deed is a 
C clear testimony ofadmission ofownership of suit land of the appellant. 
No declaration has been sought in the suit as originally filed or by amending 
the same that the recitals in the said documents are illegal and not binding 
on the plaintiff. According to the appellant, it is not open to the plaintiff 
or persons claiming through or under him to challenge the concurrent 
D finding of fact relating to the ownership ofland or to insist for sustaining 
the impugned observation in the judgment under challenge, without filing 
an appeal against the decree rejecting the relief of permanent injunction 
which, in fact, has been upheld even by
the High Court by dismissing the 
second appeal on the finding that it lacked merit. The appellant prays 
that the stated observations in paragraphs 17 and 18 of the impugned 
E judgment and decree deserve to be set aside and effaced from the record. 
16. The respondents (heirs and legal representatives of the 
deceased plaintiff - original respondent), however, contend that these 
appeals be dismissed as the same do not raise any substantial question 
oflaw of great public importance warranting interference by this Court. 
F It is contended by the learned counsel for the respondents that the High 
Court was justified in leaving the question regarding ownership of the 
suit property open, with liberty to the respondents to raise the same in 
the eviction proceedings. That was in accord with the dictum of this 
Court in Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by L.Rs. 
and Ors.,9 Sajjadanashin Sayed MD. B.E. EDR (D) by LRs. Vs. 
G Musa Dadabhai Ummer and Ors., 10 and Gram fanchayat of Village 
Na11lakl1a Vs. Ujagar Singl1 and Ors. 11 It is also contended that the 
appellant, despite the directions of this Court vide order dated 24'h 
• (2oos) 4 sec 594 
10 (2000) 3 sec 350 
H 
" (2000) 7 sec 543
UNION OF INDIA v. VUAY KRISHNA UNIYAL (D) THR. LRS. 
91 
[A. M. KHANWILKAR, J.] 
February, 2010, has failed to produce the alleged Old Grant-which is 
A 
the core of the dispute and essential to substantiate the ownership of the 
land as also the rights of the plaintiff in that behalf. Reliance is placed on 
Union of India Vs. P11r11shotam Dass Tandon and Anr., '2 to contend 
that as the Government has failed to produce the original old grant, it 
cannot claim any title in respect of the suit property. According to the 
B 
respondents, the terms of grant can be established only through such 
document in terms of Section 97 of the Evidence Act. It is then submitted · 
that the appellant has produced the original grant register of Landour 
Cantonment, which mentions that the grant in this case was "Fee Simple" 
under Walsh Settlement of1842, indicative of the nature ofrights of the 
landholders and predecessor in title of the plaintiff. Additionally, it is 
C 
submitted that if this Court is inclined to entertain these appeal, this is a 
fit case to relegate the partie~ before the High Court. Inasmuch as the 
High Court though formulated two substantial questions oflaw, did not 
choose to finswer the same, much less advert thereto in the impugned 
judgment. Reliance is placed on the decision of this Court in the case of D 
Satyendra K11mar (Dead) thro11gh LRs. Vs. Mast Ram Uniyal (Dead) 
tho11gh LRs13• According to the respondents, it is open to them to assail 
the findings in
the judgment under appeal without filing any cross objection 
or cross appeal. For that, reliance has been placed in the case of Ravinder 
Kumar Sharma Vs. 'State of Assam and Ors."; S. Nazeer Ahmed 
Vs. State Bank of Mysore and Ors., 15 Balbir Ka11r and Atir. Vs. Uttar 
E 
Pradesh Secondary Ed11cation Services Selection Board, Allahabad 
and Ors., 16 and Management of S11ndaram Ind11stries Limited Vs. 
S11ndaram lnd11stries Employees Union 17• 
17. It is further submitted by the respondents that the Courts below 
are not expected to decide the question of title in an injunction suit. .· F 
Relying on the observations in Anath11la S11dhakar (supra), it is 
contended that the High Court has rightly avoided to examine the issue 
of ownership of the suit property and left it open to be considered if 
raised by the respondents in eviction proceedings. Emphasis has been 
placed on the dictum in paragraph 21 ( c) of the aforesaid reported decision 
" 1986 (Supp.) sec 120 
"(2013) 14 sec 367 
1• (1999) 1sec435 
"(2007) 11 sec 75 
" (2008) 12 sec 1 
"(2014) 2 sec 600 
G 
H
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SUPREME COURT REPORTS 
[2017] 14 S.C.R. 
A in this behalf. It is then contended that framing of an issue and rendering 
a finding on the factum of absolute ownership was not necessary to 
decide the suit for injunction, especially, when the plaintiff had pleaded 
long occupation, possessory rights and ownership by adverse possession 
to describe himself as an owner. It is the appellant who raised the plea 
B based on an alleged Government Grant given under GGO 179of1836. 
Thus, the question of ownership or title was only an ancillary issue to the 
suit for injunction and not an essential requirement. Further, since it was 
admitted position that the plaintiff (original respondent) was in possession 
of the suit property, the burden to prove that the ownership of the suit 
property was of the Government, was on the defendant who had set up 
C that claim in terms of Section 110 of the Evidence Act. It is then contended 
that the finding on title in a suit for injunction, as in the present case, 
would not be binding in a subsequent case for declaration of title and for 
which reason also, the observation made by the High Court cannot be 
faulted. Reliance has been placed on the decision of this Court in 
D Sajjadanashin Sayed (supra) and Gram Panchayat of Village 
Na11lakha (supra). It is then contended without prejudice that the findings 
recorded by the Trial Court and First Appellate Court are contrary to the 
record and untenable in law. It is submitted that the Trial
Court and First 
Appellate Court committed palpable error in accepting the unsubstantiated 
defence of the appellant on the factum of grant ofland was made under 
E Governor General's orders (GOO 179of1836), without having produced 
the relevant official document in support of that claim. The burden of 
proving the ownership of the land was on the appellant (defendant) which 
was wrongly shifted to the plaintiff (original respondent). As a matter of 
fact, the Courts below ought to have drawn an adverse inference against 
F the appellant (defendant). The respondents have placed reliance on the 
dictum in Gopal Krishnaji Ketkar Vs. Mahomed Haji Latif and. 
Ors., 18and National Ins11rance Co. Ltd., New Delhi Vs. J11gal Kishore 
and Ors., 19 to contend that it was obligatory on the part of the defendant 
to produce the documents in their possession. The respondents would 
then contend that the Grant Register of Landour Cantonment (Exhibit 
G 79-C) produced by the appellant (original defendant) reveals that the 
land in question was held under Fee Simple, vide Wells Register Order 
dated 14'h October, 1842. That evidence established that the ownership 
over the land was of the grantee. Reliance has been placed on "Words 
. "(1968) 3 SCR 862 
H 
"(1988) 1 sec 626
UNION OF INDIA v. VIJAY KRISHNA UNIYAL (D) THR. LRS. 
93 
[A. M. KHANWILKAR, J.] 
and Phrases legally defined", "Halsbury's Laws of England" and "Black's 
A 
Law Dictionary" in support of this contention. In addition, reliance has 
been placed on the dictum of this Court in paragraph 15 of the judgment 
in Surendra Kumar Vakil (supra), to contend that in the present case, 
the appellant produced certified extracts of the Grant Register clearly 
showing that the grant was absolute and the land was held under Fee 
B 
Simple. Reliance is placed on illustration (g) of Section 114 of the 
Evidence Act to contend that as the land was held under Fee Simple, 
terms and conditions applicable in that behalf would prevail over the rule 
oflaw, statute/enactment of the legislature. In support, reliance is placed 
on the decision of this Court in Express Newspapers Pvt. Ltd. and 
Ors. Vs. Union of India and Ors. 10• The respondents would contend 
C 
that certain presumptions would be wrong, on the basis of a book called 
"Cantonment Laws" by J.P. Mittal, and such presumptions were belied 
by the documentary evidence in the form of Grant Register (Exhibit 79-
C). In reference to the admission deed/declarations given by the plaintiff 
contemporaneously executed alongwith the registered sale deed, it is 
D 
contended that the same can neither be conclusive nor binding. The 
same have been obtained by the Cantonment Authorities under mistaken 
impression of facts/ law or by suppression of
facts and law. Certainly, 
that can be no basis to determine the title or ownership of the suit property. 
To buttress this submission, reliance has been placed on Muhammad 
Imam Ali Khan Vs. Sardar Husain Khan, 21 and on Nagubai Amma/ E · 
and Ors. Vs. B. Shama Rao and Ors.,22 as well as in Kishori l;al I".~. 
Cha/tibai. 23 
•• 
18. The crux of the argument of the respondents in reference to 
the documents on record is: being a case of"Fee Simple" and, therefore, 
a private estate held in private ownership built prior to 1882, which was 
F 
in existence priorto the establishment of the Landour Cantonmnet, it 
mlistfollow that absolute ownership was of the grantee. Concededly, no 
such case has been specifically pleaded in the plaint nor argued before 
the Trial Court or the Appellate Courts . 
.. 19. According to the respondents, the question regarding title and 
G 
ownership of the suit property was a complicated question of fact and 
law, which could not be directly or substantially put in issue in a suit for 
20 (1986) 1 sec 133 
21 (1897-98).25 IA 161 
22 (1956) I SCR451 
"(1959) SCR Suppl.(!) 698 =AIR 1959 SC 504 
H
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[2017] 14 S.0.R. 
A simpliciterpermanent injunction, which was filed to protect the possession 
of the plaintiff. Hence, no fault can be found with the observations made 
by the learned Single Judge of the High Court in paragraphs 17 and 18 to 
keep the said issue open, with liberty to the respondents to agitate the 
same in the event eviction proceedin~s are resorted to by the appellant. 
B Hence, the same should not be interfered with. 
20. We have heard Mr. P.S. Patwalia and Mr. A.K. Sanghi, learned 
senior counsel appearing for the appellant, and Mr. C. U. Singh, learned 
senior counsel appearing for the respondents. 
21. Having given our thoughtful consideration, we find force in 
c the argument canvassed by both parties that the High Court has failed to 
analyse the matter in the manner it ought to have done whilst dealing 
with second appeal under Section 100 of the Code of Civil Procedure, 
1908 (for short, "CPC") at the stage of final hearing. The High Court in 
the present case has not even adverted to the two substantial questions 
oflaw as were framed in terms of its order dated 141h July, 1999, nor has 
D it analysed the matter appropriately. Be that as it may, the appellant 
(defendant) alone has assailed the impugned judgment. The plaintiff 
(original respondent) has acquiesced of the decree rejecting the relief of 
permanent injunction, having failed to file cross appeal or for that matter 
cross objections against the impugned
judgment. 
E 
22. After deep cogitation, we think it apposite to first examine the 
central issue raised by the appellant. For that, we must analyse the 
judgment rendered by the High Court dated 28th February, 2008. From 
paragraphs 1 to 14, the Court has adverted to the relevant facts which 
gave rise to the filing of the second appeal. Paragraph 15, ifread on its 
F own, would give an impression that the Court recorded the submission 
of the counsel for the plaintiff (original respondent) and rejected the 
same having noticed that two Courts below have concurrently found 
that the property belongs to the appellant. Indeed, it has done so in a 
cryptic manner without proper analysis of the relevant facts. Further, 
rejection of that contention was not enough to answer the two substantial 
G questions of law formulated in terms of its order dated 14'" July, 1999. 
H 
The substantial question formulated was whether, in absence of any 
other evidence adduced by the defendant, the property can be held to be 
that of the defendant only on the basis of the alleged admission of the 
plaintiff.
UNION OF INDIA v. VUAY KRISHNA UNIYAL (D) THR. LRS. 
95 
[A. M. KHANWILKAR, J.] · 
23. Be that as it may, the High Court having rejected the plaintiff's A 
challenge to the concurrent finding on the issue of ownership (as is 
discerned from paragraph 15 of the impugned judgment) and then finally 
concluded that the second appeal lacked merit and dismissed the same, 
it is unfathomable how it could then observe that the evidenc.e in the 
shape of registered sale deed dated l 4'h August, 1980 would prima facie 
B 
show the ownership of the suit property of the plaintiff. Merely because 
· the possession of the suit property was with the plaintiff, that by itself 
cannot be reckoned as an evidence on the issue of ownership of the suit 
property. We must recap that the claim of the plaintiff for grant of 
permanent injunction was founded on his title and ownership of the suit 
property because of the registered sale deed dated 141h August, 1980. 
C 
No doubt, the High Court made reference to the said document dated 
l 4'h August, 1980 for recording its prima facie view about the ownership 
of the suit property of the plaintiff. It is also true that the registered sale 
deed dated 14•h August, 1980, does not make any mention about the fact 
that the suit property was given to the predecessor in title of the plaintiff D 
under the Old Grant and classified as "B-3" category or that it belongs 
to the Government of India. Presumably, the High Court proceeded to 
record its prima
facie view in paragraph 17, relying merely on the said 
registered sale deed. It completely glossed over the crucial fact that the 
sale deed was the culmination of the registered agreement to sell 
executed between the plaintiff( original respondent) and his predecessor 
E 
in title dated 13•h September, 1979, to which reference has beenmade in 
the registered sale deed as und~r;7. 
"WHEREAS the Vendors have agreed with the purchaser for 
the absolute sale to him of the said Wolfs burn Estate, situate 
at Landour Cantt, Mussoorie at a price of Rs.250001-
F 
(Rupees twenty five thousand) only vide agreement dated 
J31h 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. " 
By reference to the aforementioned registered agreement to sell, the 
G 
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 
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SUPREME COURT REPORTS 
[2017] 14 S.C.R. 
A in title of the plaintiff. The relevant recital in the registered agreement to 
B 
c 
sell reads thus:-
"IT IS HEREBY MADE CLEAR that the land under the 
Cantonment Survey No. I I of the Wolfsburn Estate hereby 
and herein transferred belong to the Government of India. 
Only the rights of enjoyment of possession of the said land 
granted under the Old Grant and held by late Mrs. Edythe 
Walsh and after her the said Shri. M.J. Godin as executor 
and trustee of her will and finally by the vendors are being 
transferred together with the building structures erected and 
standing thereon by the vendors to the purchaser. The trees 
standing in the said Wolfsburn Estate also belong to the 
Government of India and only the right to enjoy the usufruct 
is the subject matter of the same in the said trees. " 
(emphasis supplied) 
24. Notably, this registered agreement to sell refers to the title and 
D interest of the previous owner of the suit property which was derived by 
him from the immediate predecessor in title in terms of registered sale 
deed dated 15th December, 1970. Indisputably, even the said registered 
sale deed dated 15th December, 1970 between Shri. M. J. Godin and 
Sardar Kartar Singh and five others restates the fact that the suit property 
E belongs to the Government, with limited right to enjoyment of possession 
thereof, as can be discerned from the recitals in the said deed, which 
reads thus:-
F 
G 
"IT IS HEREBY
MADE CLEAR that the land under the 
Cantonment Survey Number 11 of the Wolfsburn Estate property 
herein transferred belong to the Government of India. Only the 
.. rights of enjoyment of possession of the said land granted under 
the Old Grant and held by the late Mrs. Edythe Walsh deceased 
and after her the Vendor as the Executor and Trustee of her Will 
together with the building structures erected and standing thereon 
are being transferred by the Vendor to the Purchasers by virtue 
of this Deed. Similarly the trees standing in the said Wolfsburn 
Estate also being to G~vernment of India and only the right to 
enjoy the usufruct is the subject matter of the sale in the said 
trees." 
25. There is one more registered sale deed which has come on 
H record, between Mr. Charles Gorden Stewart and Mrs. E. Walsh dated
UNION OF INDIA v. VIJAY KRISHNA UNIYAL (D) THR. LRS. 
97 
[A. M. KHANWILKAR, J.] 
2nd August, 1948. The same has bearing on the issue of ownership of A 
the suit property. Even this sale deed concededly restates that the suit 
property vests in the Government. The relevant recital reads thus:-
"WHEREAS the land appertaining to Wolfsburn Estate and 
the trees standing thereon I vest in Government. The purchaser 
herebefore declares that she shall execute and register at B 
her own expense a deed 'of A_dmission in favour of 
Government. " 
26. Indubitably, the plaintiff acquired the suit property under the 
registered sale deed dated 14th August, 1980 on the same terms and, 
therefore, executed the admission deed and declaration 
contemporaneously at the time of registration of the sale deed on f9th 
C 
August, 1980. The admission deed executed by the plaintiff reads thus:-
"ADMISSION DEED 
· I, Vljay Krishna Uniyal, son of Pandit Maheshanand Uniyal, 
at present staying at 4, Elspath Collage, Masonic Lodge 
Road Mussoorie and holder of occupancy rights of Wolfs burn 
D 
Estate, Cantonment Survey No. 11, Landour Cantonment, 
Mussoorie admeasuring 3.398 acres do hereby admit the 
proprietary title of Government of India in the land as well 
as in the trees standing thereon occupied by me and 
pertaining to the above mentioned property as shown in the 
E 
Survey plan subject to the proprietary title of Government 
of India,· the land which is held by me on 'Old Grant' terms 
(GGO
179 of 12.9.1836) nothing in the admission is to 
prejudice the rights, privileges and easements hereinajier 
enjoyed by me or by my successors interest in the aforesaid land. 
The land is bounded on the 
North by - Survey No.13. 
South by - Survey No.16 
East by - Survey No.170 
West by - Road 
F 
Sdl-
G 
(VIJAY KRISHNA UNIYAL) 
Holder of occupancy rights 
Witness 
1. Paratap Singh, 24 Chaman Estate Mussoorie 
2. Sd/- Trim Lodge Mussoorie" 
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[2017] 14 S.C.R. 
A Similarly, the declaration deed executed by the plaintiff reads thus:-
"DECLARATION DEED 
B 
c 
D 
E 
I, Vijay Krishna Uniyal, son of Pandit Maheshanand Uniyal, 
at present staying at 4, Elspath Cof lage, Masonic Lodge 
Road Mussoorie and owner of Wolfsburn Estate, Cantonment 
Survey No.11, Landour Cantonment, Mussoorie admeasuring 
3.398 acres do hereby declare on oath:-
a That I admit Governments rights to the resumption of the 
property 
b That in case of resumption I will be paid compensation for 
the authorized structures only, as assessed by the Department 
under the normal procedure and the sale price should not 
form basis for compensation; and 
c That I would be treated as holder of property and there will 
be no sub-division. 
• · 
Sd/-
Witness 
(VIJAY KRISHNA UNJYAL) 
Holder of occupancy rights 
. 
14.8.1980 
1. Paratap Singh, 24 Chaman Estate Mussoorie 
2. Sd/- Trim Lodge Mussoorie" 
27. The plaintiff, advisedly, after receipt of the suit notice dated 
F 
19th August, 1985, wherein it is asserted that the suit property is 
Government land given under Old Grant classified as "B-3" category· 
· and that the Government wants to resume the same, chose to file suit 
simpliciter for permanent injunction against the appellant (defendant) 
from dispossessing the plaintiff from the suit property pursuant to the 
suit notice. In the w~e of clear stand taken in the suit notice, the plaintiff 
G ought to have filed the suit for
a declaration that the claim set-up by the 
defendant in the suit notice of ownership of the suit property is illegal. 
Obviously, the plaintiff was aware that the only right passed on to him 
was for enjoyment of the suit property granted under the Old Grant as 
class "B-3". The land belonged to the Government of India. 
H
UNION OF INDIA v. VIJAY KRISHNA UNIYAL (D) THR. LRS. 
99 
[A. M. KHANWILKAR, J.] 
28. Indeed, the plaintiff did set up a claim of ownership of the suit A 
property, firstly, on the basis of registered sale deed dated 14th August, 
1.980; secondly, having occupancy rights in the suit property which was 
analogous to ownership rights; and thirdly, that the plaintiff has full 
ownership rights by adverse possession over the suit property being in · 
long and undisturbed possession without payment of any rent for over 
B 
60 years. As regards the claim of absolute ownership of the plaintiff on 
the basis of rights derived under the registered sale deed dated 14th 
.. August, 1980, the same cannot be countenanced. In the backdrop of the 
·factual position emerging from the registered agreement to sell dated 
13th September, 1979, which preceded the execution of the subject 
·registered sale deed dated 14th August, 1980, the plaintiff executed the 
C 
admission deed ·and declaration deed contemporaneously with full 
understanding arld knowledge. The High Court while recording prima 
facie opinion in paragraph 17, has not adverted to these essential facts 
and documents. Had ihe High Court adverted to these facts and 
indisputable evidence which were taken into account by the Trial Court D 
and the First Appellate Court, it could have never recorded such prima 
facie observation in favour of the plaintiff, about the ownership of the 
suit property. The appellant (defendant) is,
therefore, justified in 
challenging the prima facie opinion noted in paragraph 17 of the impugned 
judgment. That observation has been made despite having upheld the 
concurrent finding on the issue of ownership of the suit property rendered 
E 
by two Courts below, as noted in paragraph 15 of the impugned judgment. 
The appellant must, therefore, succeed in this appeal to the extent that 
the first sentence in paragraph 17 should be effaced. As that observation 
was the foundation to give liberty to the plaintiff to agitate the question 
of title over the suit property in the event the plaintiff was required to 
F 
face eviction proceedings, the said liberty would also get effaced. In 
that event, it will not be permissible for the plaintiff or persons claiming 
through or under the plaintiff, to raise the issue of ownership of the suit 
property in any proceedings henceforth or for that matter in collateral 
proceeding. 
29. The respondents (successors in title of the plaintiff), relying G 
on other documents and precedents, would contend that the issue of title 
and ownership of the suit property was not directly and substantially 
involved in the suit for permanent injunction simpliciter filed by the plaintiff. 
Thus, it would be open to the plaintiff or persons claiming through or 
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100 
SUPREME COURT REPORTS 
[2017] 14 S.C.R. 
A under him to raise the issue of title of the suit property in collateral 
proceedings, such as eviction from the suit property. This argument 
deserves to be rejected. In the present case, the plaintiff challenged the 
suit notice dated 19th August, 1985, on the assertion that he is the absolute 
owner in possession of the suit property on the basis of a registered sale 
B deed dated 14th August, 1980. By this assertion, the plaintiff implicitly 
denied the claim of the appellant-defendant that the suit property belonged 
to the Government and was given under Old Grant falling in class B-3. 
Besides that assertion in the suit notice, the appellant-defendant had 
also unambiguously asserted in the written statement filed to contest the 
suit stating that the suit property belonged to the Government of India 
C and was given to the grantee under Old Building Grants falling in class . 
B-3, amenable to resumption after giving one month's notice. In the 
backdrop of such pleadings, the Trial Court framed issues, including 
relating to ownership of the suit property. Issue No.I was whether the 
plaintiff was the absolute owner of the suit property as was asserted by 
D him and, if so, whether the property being a private estate could not be 
reswned by the Government on the assumption that it is Government 
land. Similar contest was carried before theFirstAppellate Court. Even 
the First Appellate Court after analysing the documents
Exhibits 20C, 
27C, 35C, 38C and 39C, amongst others, held that it has been admitted 
by the plaintiff that the suit property vests in the Government of India 
E which was amenable to resumption on payment of compensation for 
construction to the grantee/occupant. The First Appellate Court, in no 
uncertain terms, concluded that the suit property belonged to the 
Government of India and the plaintiff was not the owner of the suit 
property but merely enjoyed right to possession thereof under the Old 
Grant as derived by him from his predecessor in title: Thus, it is not a 
F case of ancillary issue examined by the civil court of limited jurisdiction 
called upon to consider the relief of permanent injunction simpliciter. It 
was a direct and substant!al issue considered by the Trial Court and . 
upheld by the First Appellate Court and for that matter, even by the High 
Court, while dismissing the second appeal on the ground that it lacked 
G merit, as can be discerned from paragraphs 15 and 19 of the impugned 
judgment. In the fact situation of the case on hand, it was not a complicated 
issue on facts or law, considering the indisputable recitals in the registered 
agreement to sell and the registered sale deeds coupled with the admission 
.deed and the declaration deed contemporaneously executed by the 
plaintiff. In such a situatiori, the finding of fact recorded against the .. 
H
UNION OF INDIA v. VIJAY KRISHNA UNIYAL (D) THR. LRS. 
101 
-
_J 
[A. M. KHANWILKAR; J.] 
plaintiff will bind the plaintiff and operate as constructive res judicata A 
in a subsequent suit for declaration of title or otherwise. 
· 30. The respondents have relied on the dictum in Anat/111/a 
Sudhakar (supra). We fail to understand as to how this decision will be 
ofany help to the respondents (successor in title of the plaintiff). In that 
case, the Court summarized the legal position on the question as to 
B 
whether the averments regarding title can be considered in a suit for 
injunction simpliciter in absence of pleadings and issue relating to title. 
The respondents, however, have selectively relied on the last sentence 
of paragraph 21 ( c) of the reported decision, while overlooking the earlier 
part of the same paragraph. Paragraph 21 ( c) reads thus: 
"21. To summarise, the position in regard to suits for 
prohibitory injunction'~elating to immovable property, is as 
u~ 
. 
. 
. 
(a) 
xxx 
xxx 
xxx 
(b) 
xxx 
xxx 
xxx 
c 
D 
(c) But a finding on title cannot be recorded in a suit for 
injunction, unless there are necessary pleadings and 
appropriate issue regarding title (eitherspecific, or implied E 
as noticed in Annaimuthu Thevar24). Where the averments 
regarding title are absentin a plaint and where there is no 
.. issue relating to title, the court will not investigate or 
examine or render a finding on a question of title, in a suit . 
for injunction. Even
where there are necessary pleadings 
and issue, if the matter involves complicated questions of 
fact and law relating to title, the court will relegate the 
parties to the remedy by way of comprehensive suit for 
declaration of title, instead of deciding the issue in a suit 
for mere injunction. " 
The Court has noted that a finding of title cannot be recorded in a suit 
for injunction unless there are necessary and appropriate issues regarding 
title. This presupposes that it is not impermissible to do so. Further, where · 
the averments regarding title are absent in a plaint and where there is no 
issue relating to title, the Court will not investigate or examine or render 
24 Annaimuthu Thevarv. Alagammal, (2005) 6 SCC 202 
F 
G· 
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102 
SUPREME COURT REPORTS 
[2017] 14 S.C.R. 
A a finding on a question of title in a suit for injunction. In the present case, 
however, we find that not only there are clear pleadings relating to title 
but both sides proceeded with the trial on that assertion and invited the 
Court not only to frame issue regarding ownership and title in the suit 
property but also produced evidence in support of their respective claim 
in that behalf, which has been duly analysed by the Trial Court and the 
B First Appellate Court. In the last sentence in paragraph 2l{c) of the 
reported decision, no doubt, this Court has observed thaMhe parties 
must be relegated to the remedy of a comprehensive suit by way of title 
instead of deciding that issue in a suit for injunction. However, that may 
be necessary in matters involving complicated questions of fact and law 
C relating to title. In the present case, as observed earlier, the issue regarding 
title and ownership was directly put in issue and was a substantial issue 
adjudicated by the Court albeit in a suit for simpliciter injunction. It was 
not a complicated issue either on facts or in law. It has been rightly 
answered on the basis of admitted and indisputable facts discerned from 
D the registered documents, admission deed, declaration deed and other 
documents. The decision in the case of Gram Panchayat of Village 
Naulakha (supra), is on the facts of that case, as is discerned from 
paragraphs 3 and 9 to 11 of the reported
decision. The decision in the 
case of Purshottam Das Tandon, (2014) 9 SCC 344, is also on the 
facts of that case. The Court found that the claim of ownership ofland 
E was a contentious issue and was left open by the High Court in writ 
jurisdiction to be adjudicated by a competent civil court. In the present 
case, the fact situation leaves no manner of doubt that the issue of 
ownership of the suit property was directly and substantially put in issue 
before the civil court and was made subject matter of the suit. 
F 
31. Even the decision in the case of Sajjadanashin Sayed (supra), 
G 
H 
will be of no avail to the respondents. In paragraph 18, the Court has 
considered the issue under consideration and noted that one has to 
examine the plaint, the written statement, the issues and the judgment to 
find out ifthe matter was directly and substantially in issue. Paragraph 
18 of the said decision reads thus:-
"18. In India, Mu/la has referred to similar tests (Mui/a, 
15th Edn., p. 104). The learned author says: A matter in 
respect of which relief is claimed in an earlier suit can be 
said to be generally a matter 'directly and substantially' in 
issue but it does not mean that if the matter is one in respect 
· of which no relief is sought it is not directly or substantially
UNION OF INDIA v. VIJAY KRISHNA UNIYAL (D) THR LRS. 
103 
[A. M. KHANWILKAR, l] 
· in issue. It may or may not be. It is possible that it was 'directly 
A 
and substantially' in issue and it may also be possible that it 
was only collaterally or incidentally in issue, depending upon 
the facts of the case. The question arises as to what is the 
test for deciding into which category a case falls? One test 
is that if the issue was 'necessary' to be decided for B 
adjudicating on the principal issue and was decided, it would 
have to be treated as 'directly and substantially' in issue 
and if it is clear that the judgment was in fact based upon 
that decision, then it would be res judicata in a latter case, 
(Mulla, p. 104). One has to examine the plaint, the written 
statement, the issues and the j11dgment to find 011t if the matter C 
was directly and substantially in issue (lshwer Singh v. 
Sarwan Singh and Syed Mohd. Salie Labbai v. Mohd. 
Hanifa 15). We are of the view that the above summary in 
Mulla is a co"ect statement of the law. " 
(emphasis supplied) D 
32. In the present case, we have adverted to the plaint, written 
statement, the issues framed by the Courts below and the judgments 
directly and substantially adjudicating the issue of title and ownership. 
Realizing this difficulty, the respondents relying on the decisions of this 
Court in Ravinder Kumar Sharma (supra); S. Nazeer Ahmed (supra), 
E 
Balbir Kaur (supra); and Management of Simdaram Ind11stries
Limited (supra), would contend that it is open to the respondents to 
challenge the adverse findings recorded by the two Courts below on the 
issue of title and ownership of the suit property, without filling a formal 
cross objection in the present appeals. We are conscious of the fact that 
the plenary jurisdiction of this Court under Article 136 of the Constitution 
F 
is not limited to the dispensation provided in Order XLI Rule 22 of CPC. 
However, permitting the respondents to assail the findings of the Courts 
below on the issue of ownership of property would be to overlook the 
.. cardinal principle that the Court would not ordinarily make an order, 
direction or decree placing the party appealing to it in a position more 
G 
disadvantageous than in what it would have been had it not appealed 
[see Management of Sundaram Industries Limited (supra), para 20]. 
Further, the impugned judgment of the High Court dismissing the second · 
· appeal was certainly not in favour of the plaintiff. It was to uphold the 
2s ct 976) 4 sec 1so 
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SUPREME COURT REPORTS 
[2017] 14 S.C.R. 
A decree and order rejecting the relief of permanent injunction. Therefore, 
the argument now canvassed by the respondents will not be for sustaining 
the operative order or decree passed by the High Court as such. For, if 
accepted, it will inevitably entail in not only reversing the concurrent 
findings recorded by the Courts below on the issue of ownership but 
B would also necessitate reversal of the decree passed by the Courts below 
rejecting the relief of permanent injunction. That could be done only if 
the plaintiff were to challenge the decree of rejection of the relief of 
permanent injunction in reference to the suit notice. Absent such a 
challenge by way of an appeal or cross objection, the decree to be 
sustained will be that of the First Appellate Court of partly allowing the 
C appeal of the plaintiff (original respondent) to the extent of claim of 
compensation on the premise that the plaintiff will get compensation 
towards construction in terms of the regulations. A priori, the decisions 
relied upon by the respondents in the case of Balbir Kaur (supra), S. 
Nazeer Ahmed (supra), Panchayat of Village Naulakha (supra), and 
Ravinder Kumar Sharma (supra), will be ofno avail to the respondents. 
D Moreover, permitting the respondents to argue beyond the facts admitted 
in the registered agreement to sell and the registered sale deeds and the 
admission deed as well as the declaration deed, will be to encourage an
argument that the plaintiff has derived title in the suit property more than 
what his predecessors in title have had enjoyed- of occupancy/possessory 
E rights alone. The maxim - Nemo dat quod non habet must be borne in 
mind, which means no one gives what he does not possess. For the view 
that we have taken, we find no legal basis to relegate the parties before 
the High Court for fresh consideration of the second appeal. 
33. The legal position regardi;~g the efficacy of the Old Grant 
F 
falling in class B-3 has been examined in successive decisions by this 
Court, as pressed into service by the appellant and lastly in Usha Kapoor 
(supra). This decision has considered all the earlier decisions of this 
Court on the point including those relied upon by the respondents. Even 
in the reported case, the Old Grant was falling in class B-3. The Court 
adverted to all the earlier decisions including the elucidation from the 
G book on Cantonment Laws by J.P. Mittal, to which reference was made 
by the respondents - to restate the legal position that the terms of the 
tenure granted under Order No.179 dated 12th September, 1836 was 
that the ownership of the land remained with the Government and the 
land cannot be sold by the grantee. The original grantee is vested with 
H the right to build a house/structure on the land and he may only transfer
UNION OF INDIA v. VIJAY KRISHNA UNIYAL (D) THR. LRS. -105 
[A. M. KHANWILKAR, J.] 
the same. Such transfer would require the consent of the Commanding A 
Officer when the transfer is to a person not belonging to the Armed 
Forces. The right to resume the land at any time after following the 
procedure prescribed has expressly been recognized to be vesting in the 
Government. The status of the holder of class B-3 land has also been 
adverted to in paragraphs 14 and 15 of the said decision. It is true that 
B 
in the present case, the appellant (defendant) did not produce the Old 
Grant in relation to the suit property, but had produced the GLR extract. 
It is well settled that GLR extract is conclusive of the fact that the land 
is covered by Old Grant and the rights enjoyed by the plaintiff were 
merely possessory or occupancy rights in respect of the structures 
thereon. It is not necessary to dilate on the other authorities which are 
C 
already considered in this decision. 
34. Suffice it to observe that in absence of any challenge to the 
judgment and decree passed by the High Court in second appeal rejecting 
the second appeal on the ground that it lacked merit, the respondents 
(successors in title of the plaintiff) can neither succeed nor can be 
D 
permitted to agitate.before this Court about the correctness of the finding 
recorded by the Courts below on the issue of ownership of the suit 
property of Government oflndia and that the plaintiff is not the absolute
owner thereof. The finding of fact so recorded will bind the respondents. 
The only issue that has been left open in terms of the decree passed by 
the First Appellate Court and upheld by the High Court consequent to 
E 
rejection of the second appeal, is about determination of compensation 
for the structure in terms of the Old Grant and regulations in relation 
thereto. 
35. The appellant has rightly relied upon the decisions of this Court 
which have exposited that determination of appropriate and reasonable 
compensation can be done even later by referring the matter to the 
Arbitrator as per the regulations (see Harish Chand Anand (supra), 
paras 2 and 5). That, therefore, cannot come in the way of the appellant 
to proceed further on the basis of the suit notice dated 19th August, 
l ~5, the validity whereof is unassailable. 
36. 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 property in the event any eviction proceedings 
are resorted to by the appellant. Such liberty, as is well settled will be hit 
F 
G 
by principles of constructive res judicata in the fact situation of this 
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106 
SUPREME COURT REPORTS 
[2017] 14 S.C.R. · 
A 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. 
37. For the view we have taken, it is not necessary to burden this 
judgment with other authorities and contentions pressed into service by 
B the parties, to avoid prolixity of this judgment. 
38. Accordingly, these appeals must succeed. We are in agreement 
with the grievance of the appellant that the High Court, having upheld 
the concurrent finding of fact on the issue ofownership of the suit property 
and dismissed the second appeal on the ground that it lacked merit, should 
c have eschewed from making observations as made in paragraphs 17 
and 18 of the impugned judgment. Further, on the basis of such 
observations, the High Court unjustly granted liberty to the plaintiff 
(original respondent) to raise the issue of title in the event eviction 
proceedings are initiated against him. The High Court also committed 
manifest error in clarifying that if suck· a plea was raised, the same 
D ought to be decided without being influenced by the findings given by the 
Trial Court. 
39. Accordingly, we set aside the aforementioned observations 
made by the High Court in paragraphs 17 and 18 of the impugned 
judgment dated 28'h February, 2008 in Second Appeal No.206 of 200 l. 
E For the same reasons, we also set
aside the impugned judgment and 
order dated 191h June, 2008 in Miscellaneous Review Application No.668 
of2008. 
40. A priori, in furtherance of notice dated l 9'h August, 1985 the 
appellant is free to take possession of the suit property in accordance 
F with law. However, the respondents are granted time to hand over vacant 
and peaceful possession of the suit property until 31 ''January, 2018. 
41. 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 
G pursue appropriat!: legal remedies as per law. 
42. The appeals are allowed in the above terms with no order as 
to costs. 
Kalpana K. Tripatby 
Appeals allowed.