[2010] 13 (ADDL.) S.C.R. 1176

ARUN LAL & ORS.

UNION OF INDIA & ORS. (Civil Appeal No. 6464 of 2004)

NOVEMBER 30, 2010

[MARKANDEY KAT JU AND T.S. THAKUR, JJ.]

Government grants - Resumption of property - Land in cantonment area - Grant of by Government of India to grantee C - Grantee constructing a bungalow and letting it out to military officer on rent - Original grantee selfing the bungalow and land appurtenant thereto to purchasers - Suit by purchasers for recovery of arrears of rent, damages and vacant possession of bungalow and land utilized by Government to D build barracks - Suit decreed - Execution proceedings by decree holders - Objection by Government that land appurtenant to the bungalow resumed in terms of notice and its possession was taken - Executability of decree - Held: Entire extent of land including the one under barracks could E be taken over pursuant to resumption - Thus, possession of the said extent of land could not be taken away from Union of India for delivery to decree-holders - Said order had attained finality - After resumption and taking over of possession by Union of India in exercise of its rights as F paramount title holder, it was no longer holding the same as tenant so as to be answerable to petitioners as its landlords

- Executabi/ity of decree qua the main bungalow not assailed or questioned - Decree-holders entitled to retain possession of main bungalow until Union of India issues any further orders of resumption of property - Thus, High Court was right G in setting aside the execution proceedings - Cantonments - Decree - Execution - Judgment/order.

The Government of India granted land measuring 3.563 acres situated within the Cantonment Area to 'H'.

H 1176

ARUN LAL v. UNION OF INDIA 1177

The original grantee constructed a bungalow over an A area measuring 0.771 acres and let out the same to the Military Estate Officer on rent. Thereafter, 'H' entered into a sale deed in respect of the bungalow and the land appurtenant thereto with 'C' and his brothers. The purchasers filed a suit for recovery of arrears of rent, B damages for construction of barracks on the said land and for vacant possession of the bungalow and the land on which the Government had built barracks. The trial court decreed the suit towards rent. Thereafter, various litigations were filed. The High Court decreed the suit for c recovery of possession by ejectment of the defendant.

The decree holders filed execution application before the executing court. The Government raised objections that the decree for delivery of possession of 2.792 acres of land was rendered inexecutable as the said land stood D resumed by it in terms of resumption notice; and that possession of the said area was also taken over by the . competent authority from the decree holders. The Civil Judge rejected the objections. The District Judge upheld the order. The High Court set aside the execution proceedings. Therefore, the appellants filed the instant appeals.

Dismissing the appeals, the Court

F HELD: 1.1 There is no reason to take a view different from the one taken by the High Court. The land measuring 2.792 acres appurtenant to the bungalow was resumed in terms of notice dated 23rd September, 1970.

The notice was not assailed by the grantees before any court or authority. The possession of the resumed land G appurtenant to the bungalow which was taken over on 6th November, 1970 was also not assailed nor is the finding recorded to this effect by the High Court under challenge. At any rate there is no error or perversity in that finding of the High Court to warrant interference. It H

A is common ground that the land appurtenant to the bungalow had been utilised by the Union of India for construction of barracks. Therefore, the entire extent of 2.792 acres of land including the one w1der the barracks could be taken over pursuant to the resumption order B which was never assailed and had thereby attained finality. Such being the position, the High Court was right in holding that the possession of the said extent of land could not be taken away from the Union of India for delivery to the decree-holders. After the resumption of the c property and the taking over of the possession by the

Union of India in exercise of its rights as the paramount title holder, it was no longer holding the same as a tenant so as to be answerable to the petitioners as its landlords.

The Union of India was on the contrary holding the

0 resumed property in its own right and in a capacity that was different from the one in which it had suffered the decree for eviction. This was a significant change in the circumstances in which the decree was passed rendering it inexecutable. [Para 9) [1184-F-H; 1185-A-D)

E 1.2 The High Court rightly answered the question whether the grant of land was old or new. There is nothing before this Court nor was any serious attempt made by the appellant to demonstrate that the finding of the High Court in regard to the said question suffered F from any error or perversity. Similarly, the question whether the objections filed by the respondent-judgment debtor were barred by limitation should also not detain this Court, for the view taken by the High Court that such objections could not be ignored or rejected on the G ground that the same were filed beyond the period of

limitation is endorsed. [Para 10) [1185-E-F]

1.3 The executability of the decree qua the main bungalow was not assailed or questioned on behalf of the respondents. As a matter of fact, the possession of H

ARUN LAL v. uNION OF INDIA 1179

the main bungalow appears to have been delivered to the A decree-holders, which the decree-holders would be entitled to retain, till such time the Union of India issues any further orders of resumption of the property in exercise of powers vested in it under the relevant provisions of law. [Para 11] [1185-G-H; 1186-A-B] B

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6464 of 2004.

From the Judgment & Order dated 12.05.2003 of the High Court of Judicature at Allahabad in Civil Miscellaneous Writ C Petition No. 43928 of 2002.

WITH

C.A. No. 6465 of 2004.

Rakesh Dwivedi, K.V. Viswanathan, B. Ragunath, Jain P.L., Abhishek, S.R. Setia for the Appellants.

Vivek Tankha, ASG, Arijit Prasad, J.K. Mishra, Anil Katiyar,

Sumeer Sodhi, Sushma Suri for the Respondents.

The Judgment of the Court was delivered by

T.S. THAKUR, J. 1. These appeals by special leave arise out of orders passed by the learned Single Judge of the High Court of Allahabad whereby Civil Misc. Writ Petition No.43928 F of 2002 filed by the respondent-Union of India has been allowed and order dated 3rd August, 2002 passed by the District Judge, Agra in revision and that dated 24th May, 2002 passed by the Additional Civil Judge, Agra, in execution proceedings filed before the later set aside. The High Court has G while allowing the writ petition and setting aside the orders referred to above held that the execution proceedings instituted by the respondent-decree holders were not maintainable in so far as the same related to 2.792 acres of land that stood resumed by the Government of India in terms of a resumption H

A notice dated 23rd September, 1970 and the possession thereof taken over on 6th November, 1970. The short question that arises for our consideration therefore is whether the High Court was right in taking that view and dismissing the execution proceedings in so far as the same related to land measuring B 2.792 acres appurtenant of Bungalow No. 194, situate in the Agra cantonment area. The facts giving rise to the controversy have been set out in detail by the High Court and need not, therefore, be repeated by us here except to the extent it is absolutely necessary to do so. c

2. Land measuring 3.563 acres situated in Survey No.160 within Agra Cantonment was held in occupancy rights by one Hamid Ali Khan on the strength of a grant under the Government of India. The grantee it appears had constructed what has been described in the orders passed by the Courts D below as Bungalow No. 194 situated in the cantonment area at Agra. Pursuant to an application filed jointly by Hamid Ali Khan and Lala Chhail Behari, the Military Estates Officer granted permission for transfer of the Bungalow aforementioned and the land under and appurtenant thereto in E terms of letter dated 3rd August, 1946. A sale deed was accordingly executed in respect of the propert~1 on 11th September, 1946 by Hamid Ali Khan in favour of Chhail Behari Lal and his two brothers Naval Kishore and Kapoor Chand. The Bungalow in question had been let out by the original grantee F to the Military Estate Officer in June 1942 on monthly rental of Rs.125/-. The purchasers on the basis of the sale in their favour acquired the right to claim the rent payable for the same from the Military Estate Officer. Suit No. OS 842 of 1958 was accordingly filed by the purchasers for recovery of arrears of G rent and damages and for vacant possession which suit was decreed for a sum of Rs.1600/- only towards rent and damages.

The Court held that in the absence of any material to show that the Government had issued any notice for resumption of the land appurtenant to the bungalow, the Government of India was liable

to pay damages for remaining in occupation of the barracks A which had been built in the compound of bungalow.

3. The grant holder Naval Kishore and others filed a second suit bearing suit No.6 of 1963 for recovery of rent and damages for use and occupation of the bungalow apparently 8 for the period subsequent to the earlier suit. This suit was also decreed by the Trial Court. The appeal preferred by the Union of India was, however, allowed holding that there was no valid contract between the parties in respect of the bungalow and consequently the claim for rent could not be decreed. The claim C for payment for damages also failed on account of noncompliance with the provisions of Section 80 of the CPC.

4. A third suit being suit No.99 of 1968 was then filed by the Naval Kishore and others for recovery of Rs.7800/- as arrears of rent and damages with a prayer for possession by D eviction of the Garrison Engineer from the main bungalow and the land over which the Govt. of India had built the barrack. This suit was decreed on 25th October, 1969 but only to the extent of recovery of Rs.8977.50 towards rent. The Trial Court did not go into the question of title to the property as the suit was E based on a tenancy in favour of the respondents-Union of India.

Two appeals came to be filed against the said judgment and decree. While appeal no.294 of 1969 was filed by Naval

Kishore and others, appeal no.66 of 1970 was filed by the Union of India. Both these appeals were heard together and F by a common order the appeal filed by the Union of India was dismissed while that filed by the Naval Kishore and others was allowed. The High Court held that although no contractual tenancy came into existence between the parties, a statutory tenancy came into existence under the provisions of the G Cantonment (House Accommodation) Act, 1993 and that any such tenancy was not dependent upon the execution of a formal

decree. The provisions of Article 299(1) of the Constitution were held to be inapplicable to such tenancy.

5. The High Court also found the composite notice served H

A upon the Union of India under Section 80 CPC and Section 106 of the Transfer of Property Act to be valid and decreed the suit for recovery of possession by ejectment of defendants from the bungalow and the land underlying the same with a direction to remove the barracks that were constructed on a part of the B compound failing which the same were directed to be removed under the orders of the Court and the possession delivered to the decree-holder.

6. Civil Second appeal nos.1935 of 1970 and 1936 of C 1970 filed by the Union of India filed against the said order were dismissed by order dated 8th February, 1984 passed by the High Court as abated on account of the failure of the appellant to substitute the legal heirs of the plaintiffs-respondents. It was in the above backdrop that execution application no.16 of 1977 was filed by the decree-holder before the Executing Court. in D which the Union of India filed its octions opposing the execution inter-alia on the ground that the land appurtenant to the Bungalow having been resumed by the Government the possession of the same could be taken away from it in execution of the decree passed in favour of the decree holders.

E According to the Government, out of a total extent of the total

3.563 acres of land granted to the original grantee Bungalow No.194 was constructed over an area measuring 0. 771 only.

This left an area measuring 2. 792 acres vacant around the bungalow. By an order dated 24th September 1970 the Union F of India resumd the aforementioned 0. 771 acres of land underlying the bungalow, for which a resumption notice dated 2nd February, 1976 was issued. This notice it is significant to mention, did not make any reference to the remaining extent of 2. 729 acres which was appurtenant to the bungalow.

G Aggrieved by the said resumption order the grantees filed writ petition No.1482 of 1971 which was allowed by a Division Bench of the High Court of Allahabad holding that the Government of India could not take over/resume any building or land except after serving one month's notice and paying to H the owner compensation for the property being resumed based

on a process or determination with which the erstwhile grantee A is also associated. The High Court held that since no such notice was served nor any compensation determined the resumption order was unsustainable. The same was accordingly quashed. Another notice dated 23rd September, 1970 purporting to resume the vacant area measuring 2.792 8 acres, however, remained unchallenged. The High Court has in the order impugned before us recorded a finding that possession of the said extent of land was taken over by the respondents on 6th November, 1970.

7. The objections filed by the Union of India to the execution C proceedings in the above. background raised a plea that the decree for delivery of possession to the extent the same related to 2.792 acres of land was rendered inexecutable as the said extent of land stood resumed by it in terms of resumption notice dated 23rd September, 1970 and that possession of the said D area was also taken over by the competent authority on 6th November, 1970. The Union of India therefore argued that since the resumption of the land in question had attained finality and since possession of the same was also taken over from the decree holders there was no question of dispossessing the E Union of India from the said extent of land in execution to the decree passed in favour of the petitioner. The Civil Judge rejected the objection raised by the Government. The District Judge in revision affirmed that order holding that the objections filed by the Union of India were time barred. Aggrieved by the F said orders the Union of India preferred Civil Misc. Petition No.43928 of 2002 before the High Court who framed the following three questions for determination:

(1) Whether the land in dispute is an old grant and the G resumption of part of the old grant on the land measuring 2.792 acres by notice dated 23.9.1970 of which the possession was taken on 6.11.1970 has become final between the parties?

(2) Whether the issue regarding the land being old H

grant land was directly and substantially in issue between the parties in suit no.842 of 1958, and cannot be reagitated in the present proceeding on the principle of res judicata?

(3) Whether the objections filed by petitioners under section 47 C.P.C. to the execution of the decree, were barred by limitation?

8. Answering question no.1 in the affirmative the High Court held that the grant in question was an old grant and that C resumption of land measuring 2.792 acres in terms of notice dated 23rd September, 1970 and taking over of possession on 6th November, 1970 had attained finality between the parties. Question no.2 was answered by the High Court in the negative. It was held that the question whether the grant was D old or new was not directly and substantially in issue in Suit no.842of1958. The principle of resjudicata did not, therefore, debar the plea that the grant was an old grant. In so far as question no.3 is concerned, the High Court held that there was no limitation prescribed for filing of objections under Section E 47 CPC and hence rejection of objections by the Revisional Court on that ground was not legally correct. The present appeals assail the correctness of the judgment and order of the High Court as already noticed above.

9. Having heard learned counsel for the parties at F considerable length we do not find any reason, muchless a compelling one, for us to take a view different from the one taken by the High Court. That land measuring 2.792 acres appurtenant to the bungalow was resumed in terms of notice dated 23rd September, 1970 has not been disputed before us.

G That the said notice was not assailed by the grantees before any Court or authority is also not in dispute. That possession of the resumed land appurtenant to the bungalow was taken over on 6th November, 1970 has also not been assailed nor is the finding recorded to this effect by the High Court under H challenge. At any rate we see no error or perversity in that

finding of the High Court to warrant interference. It is common A ground that the land appurtenant to the bungalow had been utilised by the Union of India for construction of barracks. The entire extent of 2. 792 acres of of land including the one under the barracks could, therefore, be taken over pursuant to the resumption order which was never assailed and had thereby B attained finality. Such being the position, the High Court was right in holding that possession of the above extent of land could not be taken away from the Union of India for delivery to the decree-holders. That is because after the resumption of the property and the taking over of the possession by the Union of c India in exercise of its rights as the paramount title holder, it was no longer holding the same as a tenant so as to be

answerable to the petitioners as its landlords. The Union of India was on the contrary holding the resumed property in its own right and in a capacity that was different from the one in 0 which it had suffered the decree for eviction. This was a significant change in the circumstances in which the decree was passed rendering it inexecutable.

10. So also the question whether the grant of land was old or new has in our opinion been correctly answered by the High E Court. There is nothing before us nor was any serious attempt made by learned counsel appearing for the appellant to demonstrate that the finding of the High Court in regard to the said question suffered from any error or perversity. Similarly, the question whether the objections filed by the respondent- F judgment debtor were barred by limitation should also not detain us, for we endorse the view taken by the High Court that such objections could not be ignored or rejected on the ground that the same were filed beyond the period of limitation.

11. That leaves us with the question whether the decree is executable qua the main bungalow itself. We must to the credit of the respondents mention that the executability of the decree qua the main bungalow was not assailed or questioned on behalf of the respondents. As a matter of fact, the

A possession of the main bungalow appears to have been delivered to the decree-holders, which the decree-holders will be entitled to retain, till such time the Union of India issues any further orders of resumption of the property in exercise of

B powers vested in it under the relevant provisions of law.

12. In the result these appeals fail and are hereby dismissed but in the circumstances without any orders as to costs.

N.J.

Appeals dismissed.