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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 81 OF 1993
with
CIVIL APPLICATION NO. 5207 OF 2008
And
Civil Application Nos. 152 of 2003, 475 of 2004 & 5487 of 2007
Mrs. Dosibai Nanabhoy Jeejeebhoy, represented by )
(a) Byram Nanabhoy Jeejeebhoy )
(b) Avi Behram Doctor )
(c ) Behram Doctor )
having their address at 83, Jolly Maker Chamber II, )
Nariman Point, Mumbai-400 021.
ig )...Appellants.
Versus
The Union of India, through Secretary to the )
Government of India, Ministry of Defence, South )
Block, New Delhi. )..Respondents
Mr. Mahendra Shah, Senior Advocate, with Mr. K. Presswalla and Mr. Rajesh
Rathod, instructed by M/s. Bilawala & Company, for the appellants.
Mr. S.R. Rajguru with Ms. Nisha Valani for the respondents.
CORAM: P.B. MAJMUDAR &
SMT. R.P. SONDURBALDOTA, JJ.
th
Judgment reserved on: 17 October,2008
th
Judgment pronounced on: 20 January, 2009
JUDGMENT (Per P.B. Majmudar, J.)
This appeal is directed against the judgment and decree dated 30th
September, 1991, passed by the learned Joint Civil Judge, Senior Division at
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Pune, in Special Civil Suit No. 287 of 1983. By the impugned judgment and
decree, the suit filed by the original plaintiff has been dismissed by the learned trial
judge.
2. The plaintiff is the original owner of land situate at 11, Staveley Road,
Pune Cantonment, along with the main bungalow and various out-houses,
servants’
quarters etc., hereinafter referred to as “the suit property”. The aforesaid
suit was filed for a declaration that the suit property vests exclusively with the
plaintiff and the defendant has no right, title or interest in the ownership thereon.
The plaintiff has also prayed for a declaration that the defendant has no right of
resumption in respect of the suit property and the resumption notice dated 22nd
October, 1970 and the letter dated 6th November, 1970 are invalid, void and of no
legal effect. A further declaration was also sought in the suit to the effect that the
“Admission Certificate” dated 24th April, 1965 is void and not binding on the
plaintiff. It is also prayed that the defendant be directed to deliver up the Admission
Certificate dated 24th April, 1965 and the said Admission Certificate be cancelled.
3. It is the case of the plaintiff that she is the owner of the suit property viz.
all that piece and parcel of land bearing No.11, Staveley Road, Pune Cantonment,
consisting of the main bungalow together with out-houses, servants’ quarters,
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garages, stables and a garden admeasuring about 1 acre and 30 gunthas together
with ground, trees, fences, etc. It is the case of the plaintiff that the above suit
property was owned absolutely by late Cawasjee Dhunjeeshaw, the father of the
plaintiff. It is averred by the plaintiff in the plaint that her father said late Cawasjee
Dhunjeeshaw by an indenture dated 23rd June, 1930, between him and the
Secretary of State for India in Council leased the dwelling house to the
predecessors of defendant in the suit property together with out-buildings, grounds,
gardens, trees, fences, ditches, wells, easements and appurtenances to the said
dwelling house for a period of five years from 20th April, 1930, at the rate of Rs.
745/- excluding conservancy and water taxes. After this lease had expired, a new
lease dated 18th July, 1935, was executed between the parties, for another period
of five years commencing from 20th April, 1935. After the term of the lease, the
defendants’ successors of the Secretary of State for India in Council, held the
property on the same terms and conditions contained in the said indenture on the
basis of the monthly tenancy. According to the plaintiff, after the demise of the
original lessor, the late Cawasjee Dhunjeeshaw, the monthly rent in respect of the
suit property was being paid by the defendant to the widow of late Cawasjee
Dhunjeeshaw, who was given a life interest in the said property. The plaintiff was
given the full and absolute interest in the suit property, after her mother’
s death,
and she became and owner and lessor of the suit property. The plaintiff filed a suit
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bearing R.C.S. No. 1946/1965 on 15th April, 1964 (thereafter renumbered as Suit
No. 946 of 1965) in the Court of Civil Judge, Senior Division, Pune, for possession,
arrears of rent and damages.
4. According to the plaintiff, the defendant failed to make payment of the
rents, taxes and other dues payable in terms of the lease and hence the plaintiff
became entitled to terminate the said lease and to take the possession of the said
property. It is the case of the plaintiff that on 23rd February, 1965, she had applied
for transfer of the suit property in her own name upon her father’
s death to the
Military Estate Officer, Pune Circle, Pune-1, as she was given to understand that
such an application was necessary in Cantonment Area. It is alleged by the
plaintiff that taking advantage of the said application, the defendant made a
condition of transfer that she should sign an Admission Certificate acknowledging
Government proprietary interest in the land. The plaintiff had signed such
Admission Certificate on 24th April, 1965. The plaintiff was made to subscribe the
condition of the original grant pertaining to the site of the bungalow on the said suit
property. It has been stated in the said Admission Certificate that permission to
occupy ground in a military cantonment conferred no proprietary right and that it
continued to be the property of the State and was resumable at the pleasure of the
Government. It is also the case of the plaintiff that the Civil Judge, Senior Division,
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Pune, by judgment and decree dated 29th June 1969 in Regular Civil Suit No. 946
of 1965, directed the defendant to hand over possession of the suit property and
pay to the plaintiff Rs. 2,845.37 with costs of the suit and future interest on the
same. The defendant had challenged the said decree by way of an appeal, being
Appeal No. 213 of 1970, in the District Court, Pune. The District Court, Pune,
stayed the and execution of the decree in the said appeal.
5. It is the case of the plaintiff that by a purported resumption notice dated
22nd October, 1970, the defendant informed the plaintiff that all rights, easements
and interest in the suit property were seized on the expiry of 30 days of the notice.
As per the recital in the said notice, the suit property belonged to the defendant
and was held on old grant terms. By the said notice, the defendant offered to pay
the plaintiff a sum of Rs. 36,268/- as the value of the authorised erections
standing on the said land. The Military Estate Officer, Pune Circle, requested the
plaintiff by letter dated 6th November, 1970 to hand over the possession of the suit
property with all the buildings and erections standing thereon to the representative
of the defendant on 25th November, 1970, at 11.00 hrs. in terms of the said notice.
6. It is the case of the plaintiff that the defendant was not the owner of
the land and was not entitled to resume the land or buildings thereon. The plaintiff
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made an application before the Assistant District Judge, Pune, in the said appeal
No. 213 of 1970, to restrain the defendant from resuming the land. An order was
passed on 19th November, 1970 to that effect. The defendant thereafter vide letter
dated 23rd January, 1971 enclosed a cheque of Rs. 36,268/- towards the purported
compensation of the buildings. The plaintiff returned the said cheque in view of
the pendency of legal proceedings. In the meanwhile, the Assistant District Judge
disposed of the said Appeal No. 213 of 1970 on 28th March, 1972, in favour of the
defendant by holding that the provisions of the Rent Act did not apply to the
Cantonment. The plaint was thereafter returned for presentation to the Court of
Small Causes, Pune on 28th April, 1972 and was numbered as Civil Suit No. 1435
of 1972. The said suit was transferred to the Principal Civil Judge, Senior Division,
Pune and numbered as R.C.S. No. 599/1974. According to the plaintiff, by an
oversight, no application for injunction against the resumption of the suit property
was made on behalf of the plaintiff either before the Small Causes Court or before
the Principal Civil Judge, Senior Division, Pune. On 17th May, 1972, the
defendant purported to unilaterally resume and assume possession of the suit
property. Correspondence ensued between the plaintiff and the defendant for the
receipt of compensation amount. The plaintiff ultimately accepted the defendant’
s
cheque for Rs. 36,268/- under protest. The plaintiff also applied to the defendant
for referring the matter to an arbitration Committee. In pursuance of the plaintiff’s
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request, one Lt. Col. D. Jagadesan was appointed as a Presiding Officer of the
Arbitration Committee. It is the case of the plaintiff that the said Arbitration
Committee had not yet determined the plaintiff’
s claim for additional compensation.
The plaintiff has further contended that the above RCS No. 599 of 1974 filed by
the plaintiff before the Principal Civil Judge, Senior Division, Pune, was dismissed
for default on 29th October, 1979, and that the restoration application filed by the
plaintiff is still pending disposal of the Court.
7.
It is also the case of the plaintiff that somewhere in May, 1980, she
took legal advice on the question of proceedings relating to the purported
resumption and her attention was drawn to the judgment of the Bombay High Court
in the case of P.T. Anklesaria vs. H.T. Vashistha and others, AIR 1980 Bom. 9,
wherein the Division Bench took the view that it could not be laid down as a
matter of law that no land in the Pune Cantonment could have been the subject
matter of private ownership before or after the settlement of Cantonment limits. In
the said case, the Division Bench has set aside the resumption notice, which was
identical to the resumption notice in respect of the suit property. It is also the case
of the plaintiff that the defendant have been in wrongful possession of the suit
property since May, 1972 by way of purported exercise of their so called right of
resumption and that they have been wrongly using the suit property without making
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any payment of rent or mesne profits or other charges payable to the plaintiff
which they are bound to pay under the terms of the indenture dated 18th July, 1935.
On these and such other averments, the suit was filed by the plaintiff for
declarations, as stated above.
8. The suit was resisted by the defendant by filing the written statement at
Exhibit-15. The defendant denied the averments and allegations in the suit.
According to the defendant, the plaintiff was the owner of only the main bungalow,
out-house, servants quarters, garages and stables and authorised to be built but
were not the owners of the land. According to the defendant, the plaintiff was
merely holder of occupancy rights in so far as the land admeasuring 1.30 acres
bearing S. No. 404 is concerned. The said land was held by the plaintiff’s
predecessor in title in terms of the old grant under condition No. GGO No. 14 of 6th
January, 1827. According to the defendant, the entire property now vests with the
Government of India after its resumption on 17th May, 1972. It is the further case of
the defendant that the Government had taken on lease a dwelling house in terms
of indenture dated 23rd June, 1930 but denies that on the basis of an indenture the
plaintiff got any title to the land underneath the dwelling house. It is the case of the
defendant in the written statement that loosely worded indenture ‘by premises’
meant only the structures erected on the land and did not include the land.
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According to the defendant, the plaintiff was trying to mislead the true facts of law.
It is denied by the defendant that after expiry of lease in 1935, the Government
was holding over the same as statutory tenant on the premises. It is also the case
of the defendant that after the war of 1817, the Military had occupied all the land in
the limits of Cantonment of Pune and the rights of private parties of private lands
were extinguished. The gazette notification was published in 1828 declaring the
limits of Cantonment of Pune. There were no private land or private interest in the
Cantonment. Subsequently, Army Officers and selected civilians were granted
land for construction of residential accommodation with a clear condition that no
proprietary rights will be conferred on grantees. The plaintiff who had inherited the
property in 1965, was also explained the conditions which the property was held by
her and she voluntarily signed the “Admission Certificate” on 24th April, 1965.
According to the defendant, it is not open to the plaintiff to say after seventeen
years that she had signed an application erroneously. According to the defendant,
the decree was passed by the Civil Judge, Senior Division in RCS No. 946 of 1965.
However, the plaintiff has for the reasons best known to her has not bothered to
state that the appeal was decided in favour of Government. It is the case of the
defendant that the suit property was resumed after a valid notice giving one month’
s
time and an amount of compensation of Rs. 36,268/- was offered to the plaintiff.
The plaintiff has never challenged the right of Government for resumption but was
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contesting that the compensation is payable for the land also. It is the case of the
defendant that in the case of P.T. Anklesaria(supra), the Bombay High Court has
struck down only the powers of resumption of the Government merely because in
the particular property, the Government could not produce the original grant
pertaining to the power of resumption. The said decision of the Bombay High Court
was, however, challenged in appeal before the Supreme Court in SLP Nos. 608 to
621 of 1980. The Appeals filed by the Government have been admitted by the
Supreme Court. According to the defendant, since the plaintiff has already
accepted compensation amount in 1976 and had elected for arbitration only to fix
the compensation which has already been admitted by the plaintiff and hence the
suit is hopelessly barred by limitation and laches. On these and such other
averments, the suit of the plaintiff was resisted by the defendants.
9. The learned trial Judge framed 21 issues arising out of the pleadings at
Exh. 20. After considering the oral and documentary evidence on record, the
learned trial Judge came to the conclusion that the plaintiff has failed to prove that
the suit property was owned absolutely by late Cawasjee Dhunjeeshaw, the father
of the plaintiff. The trial Court also found that the plaintiff has proved that the suit
property was leased to the Secretary of State for India in Council for five years
from 20th April, 1930 at the rate of Rs. 745/- per month. The trial Court found that
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the plaintiff has only proved that the property was leased to the defendant.
However, the plaintiff has failed to prove that after expiry of indenture dated 18th
July, 1935, the successors of the defendants held the suit property on same
conditions in the said indenture on the basis of monthly tenancy. The trial Court
has found that the plaintiff has failed to prove that she became the owner and
lessor of the suit property. The trial Court also found that the plaintiff has failed to
prove that the suit property was at all times privately owned by her predecessor-in-
title and by herself. The trial Court also found that the plaintiff has failed to prove
that she signed an Admission Certificate dated 24th April, 1965, not realising the
consequences of signing and that she signed the certificate thinking that it was
only a mere formality. The learned trial Judge had decided issue Nos.1, 3 to 17
against the plaintiff. The trial Court also found that the defendants proved that the
plaintiff or her predecessors were merely holders of occupancy rights in respect of
the suit property. The trial Court also found that the defendant proved that the suit
land was held by the plaintiff’s predecessor-in-title in terms of old grant under
condition of GGO No. 14, dated 6th January, 1827 and that the entire suit property
now vests with Government of India under its resumption dated 17th May, 1972.
The learned trial Judge who had framed an additional issue regarding law of
limitation also held that the suit of the plaintiff was barred by the law of limitation.
On the basis of the aforesaid findings, the learned trial Judge by the impugned
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judgment and decreed dated 30th September, 1991 dismissed the suit of the plaintiff
with costs. It is the aforesaid judgment and decree which is impugned in the instant
appeal at the instance of the original plaintiff.
10. Since the appellant-original plaintiff-has expired during the pendency of
this appeal, her heirs 1 (a) (b) and ( c) have been brought on record, pursuant to
s order dated 11th June, 2004. .
the Court’
11. During the course of hearing of the appeal for final hearing, the
appellant-plaintiff has tendered on record a Civil Application for amendment of the
plaint being Civil Application No. 5207 of 2008. On 17th October, 2008, this Court
passed the following order.
“1. Arguments concluded in the appeal. Order reserved.
2. During the course of arguments, Civil application is tendered
on record for amendment of the plaint. Since, we have heard boththe learned counsels at length in the main appeal, the learned
counsel for respondent is permitted to file reply to the Civil
Application on record, latest by 10th November, 2008 and copy
may be furnished to the other side before the said date. Thelearned counsel for the appellant may file his reply on record by
17th November, 2008. The written submissions on the amendment
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both sides are also permitted to give short written submissions on
the main appeal, latest by 17th November, 2008 with a request thatit should be in a precise form and not very lengthy. The judgment
will thereafter be pronounced after the aforesaid date at any time.”
12. Mr. Mahendra Shah, learned Senior Counsel, appearing for the
appellants has submitted that on 29th June, 1969, the Civil Judge, Senior Division,
Pune, decreed the suit filed by the plaintiff and ordered the defendant to forthwith
give possession of the suit property. The defendant filed an appeal against the
said order being Appeal No. 213 of 1970 before the Extra Assistant Judge,
Poona at Poona. It was the submission of the plaintiff before the Appellate Court
that the appeal is a continuation of the suit and consequently once the Rent Act
has been made applicable by the notification issued in the year 1969, it shall be
deemed that the Court gets the jurisdiction and, therefore, the plaint ought not to
be returned to the plaintiff under the provisions of Order VII Rule 10 of the Code of
Civil Procedure Code. According to the plaintiff, the main relief sought for in the
suit was for possession and the same relief does occur under the provisions of
Transfer of Property Act and, therefore, the said relief ought to have been granted
to the plaintiff as it was within the jurisdiction of the Court of Civil Judge, Senior
Division. After hearing the parties, the Appellate Court vide judgment and order
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dated 28th March, 1972 in Appeal No.213 of 1970, allowed the appeal, set aside
the decree of the trial Court and returned the plaint to the plaintiff for presentation
to the proper Court. The Appellate Court found that the Civil Judge, Senior
Division, conducted the suit as a Small Causes suit and the same was without
jurisdiction. Mr. Shah has further submitted that in view of the judgment in the
case of P.T. Anklesaria (supra), the Rent Act was applicable to the suit premises
and, therefore, the decree was rightly passed by the trial Court and in that view of
the matter, the decree passed by the Civil Judge, Senior Division, Pune, can be
said to be a valid decree and the same is binding between the parties. It is
submitted by Mr. Shah that an identical decree in the case of P.T. Anklesaria has
been passed. It is further submitted by Mr. Shah that so far as the judgment
delivered in P.T. Anklesaria is not stayed, the said judgments holds the field as the
same has not been overruled. It is submitted by Mr. Shah that the plaintiff has led
evidence about her title but the respondent has not led any evidence to
substantiate its say about handing over the land on the basis of original grant. The
original grant has not been produced on record and the burden is on the defendant
to prove such grant which they have not been discharged. Mr. Shah has further
submitted that the judgment in Anklesaria’
s case was given by the Bombay High
Court in a writ petition in which the petitioner therein had mainly and substantively
challenged the resumption notice given by the respondents on the ground that
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there was no grant whatsoever from the Government of India granting to the
petitioner or his predecessor-in-title, and in any event there is no grant containing
any terms for the Government to resume the land. By the impugned resumption
notice in the said notice, the executive could not deprive him of whatever right he
held in the property whether the right was absolute or limited and the prayer asked
for was a writ of mandamus to declare the impugned notice and all actions
pursuant thereto as void, ultra vires and of no legal effect and ordering the
respondents to cancel the said notice.
13. It is vehemently submitted by Mr. Shah that it was not open for the
defendant to deny the title and if the title is denied then the decree for eviction is
required to be passed against the defendant for denial of title. Mr. Shah has relied
upon certain judgments regarding denial of title to which reference will be made
later on. It is submitted by Mr. Shah that the defendant should have produced the
original grant which they have failed to produce. He has further submitted that the
defendant had no right to resume the land and such resumption is contrary to law.
It is submitted that since no grant is on record and the defendant has not led any
evidence in this behalf and the said judgment in Ankalesaria’s
case is not reversed,
the same will operate as a precedent. It is further submitted that the suit is filed
within 12 years and is within the limitation. It is submitted that the defendant has
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not produced any evidence about grant and according to him there is no old grant
at all. The defendant has not shown, even in the written statement, as to how,
rights over private lands of private parties were extinguished. No evidence has
been led, to show that in general, private parties lands were taken away and in
particular, whether the land at 11, Staveley Road, Pune Cantonment, of the private
party was taken away.
14. It is submitted by Mr. Shah that the decree passed by the Rent Court
can be said to be binding decree and when ultimately if the title of the plaintiff is
established in law the plaintiff can file a fresh suit for possession. It is submitted by
Mr. Shah that under Section 28 of the Rent Act, Rent Court was the only
competent Court to pass a decree and the decree passed by the Rent Court is said
to be binding between the parties.
15. Mr. Shah also submitted that in Cantonment area there can be private
property for which he has relied upon the provisions of the Cantonment Code,
1912. It is submitted by Mr. Shah that document at Exh. 68 cannot be said to be
an old grant. It is submitted that it cannot be said that a grant was given for
constructing bungalow and other structure in the land belonging to the respondent.
It is submitted that in the original plaint, there is already a decree for possession
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and, therefore, it was not necessary to ask for possession in this Suit. It is
submitted by him that the decree passed by the Rent Court is saved in view of the
judgment of the Supreme Court in the case of Jai Singh Jairam Tyagi vs. Maman
Chand Ratilal , AIR 1980 SC 1201. In the said case the Supreme Court in para
8 observed thus:
“8. Shri V.M. Tarkunde, learned counsel for the appellant urged
that sub-section (4) had to be read in the context of sub-
sections (2) and (3) and that it was to be applied only to caseswhere notification issued under sub-section (1) was given
retrospective effect under the provisions of sub-section (2). Wesee no justification for confining the applicability of sub-section
(4) to cases where notifications are issued with retrospective
effect under sub-section (2). Sub-section (4) in terms is not soconfined. It applies to all cases of decrees or orders made
before the extension of a State legislation to a cantonment area
irrespective of the question whether such extension is
retrospective or not. The essential condition to be fulfilled is
that the decree or order must have been made as if the Statelegislation was clearly in force, although, strictly speaking, it was
not so in force. In our view, sub-sec. (4) is wide enough tosave all decrees and orders made by the wrong application of a
State rent control and house accommodation legislation to a
cantonment area, though such State legislation could not in law
have been applied to Cantonment areas at the time of thepassing of the decrees or the orders. We, therefore, hold that
the decree obtained by the respondents is saved by the
provisions of Section 3, sub-section (4) of the Cantonment
(Extension of Rent Control Laws) Act of 1957, as amended by
Act 22 of 1972.”
It is submitted by Mr. Shah that the amendment application pressed into service by
the appellants is required to be granted and the appellants may be permitted to
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amend the plaint by taking specific prayer regarding handing over the possession.
Mr. Shah has further submitted that since the defendant has failed to lead any
evidence about old grant, and since in view of the decree of possession passed by
the trial Court, the suit is required to be decreed and it should be held that the
admission certificate is null and void and not binding upon the plaintiff. It is
submitted that the so called amount of compensation was taken by the plaintiff
under protest. Considering the aforesaid, Mr. Shah has submitted that the decree
of the trial Court is required to be set aside and the suit of the plaintiff is required to
be decreed. Mr. Shah has submitted that the plaintiff has paid full court fees.
16. Mr. Rajguru, learned counsel appearing for the respondents, on the
other hand, submitted that in Cantonment area all lands belonged to Secretary of
State. It is submitted that the plaintiff was permitted only to construct building and
the land all throughout belonged to the defendant. According to him, permission to
occupy ground within the limits of cantonment confers no proprietary rights on the
occupant. It is submitted that the plaintiff having signed the admission certificate,
cannot take contrary stand. It is submitted that the plaintiff has taken away
compensation regarding the constructed portion , as on the land belonging to
respondent, the plaintiff was permitted to construct buildings and other construction
and, therefore, she was the owner of only constructed portion and the ownership
of the land always remain with the defendant. It is submitted that the Plaintiff
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having given admission certificate as far back as in 1965 cannot file a suit in the
year 1983, which on the face of it is hopelessly time barred. It is submitted that the
plaintiff is now estopped from changing her stand. It is submitted that the plaintiff
was never sold the land and she was having ownership rights only in connection
with the bungalow and other construction. It is submitted that survey No. 404 is in
Pune Cantonment area. He has relied upon Exhibit-68 at page 45. He has also
relied upon Exhibits-31 to 34. In this connection he has relied upon the decision in
the case of Raj Singh vs. Union of India, AIR 1973 Delhi 169. He has also relied
upon a decision in the case of Union of India and others vs. Harish Chand Anand,
1995 Supp (4) SCC 113. According to him, there is nothing to show that the land
was also sold to the predecessor in title of the plaintiff. It is submitted that the
resumption of the land can also be said to be unilateral. Strong reliance is placed
on Exh. 61 regarding document of 1912. He has further submitted that so far as
the decree for possession passed by the Rent Court in Civil Suit is concerned, that
said decree was set aside by the Appellate Court and, therefore, now it cannot be
said that the said decree still subsists. Mr. Rajguru also submitted that the sale
deed in favour of late Cawasjee Dhunjeeshaw was subject to rules and
regulations of Government of India and the Cantonment Committee in respect of
the tenure of the cantonment lands and as per the judgment in the case of
Secretary of State for India in Council vs. Satish Chandra Sen, reported in LVII
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Indian Appeals, all the lands in cantonment were acquired for Military purpose but
private individuals were allowed to erect houses on various plots, subject to certain
restrictions. It is also submitted by Mr. Rajguru that there is also reference in the
indenture of trust dated 24th March, 1932 executed by late Cawasjee Dhunjeeshaw
wherein it is mentioned that the settlor was having permanent occupancy rights in
the land belonging to the Government. It is further submitted that by registered
indenture dated 23rd June, 1930, late Cawasjee Dhunjeeshaw leased out the
dwelling house to the Secretary of State for India for five years which was
extended for another period of five years and the Secretary of State for India in
Council held the said property on hire as monthly tenants on the same terms and
conditions. After the death of late Cawasjee Dhunjeeshaw in February, 1937, his
widow late Mrs. Bachubai Cawasjee was given life interest and after her death, her
daughter i.e. the original appellant was given full interest in the said property. It is
also submitted that as per gazette notification of 1828 notifying the limits of Pune
Cantonment , no private land was allowed to exist within the limits of Pune
Cantonment area.
17. It is also submitted that so far as the ratio in the case of Jairam Tyagi
(supra) is concerned, the same is applicable only when there is an existing decree
in favour of the plaintiff. In the instant case, when there is no decree as the same
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was set aside by the Appellate Court. The said judgment has no relevance and the
Appellate Court order becomes final by which the decree is set aside. Even
subsequently, the suit was also dismissed for default. Therefore, the plaintiff cannot
rely on the aforesaid original decree of the trial Court which is set aside by the
Appellate Court. It is submitted that when the decree was set aside by the
Appellate Court and the plaint was returned for presentation to the proper Court, at
that stage the defendant had already taken the plea about resumption of the land.
It is submitted that under Article 58 of the Limitation Act, suit filed after three years
is not maintainable. It is submitted that even prayer for possession is not
maintainable as the same is also barred by limitation as per Article 64. It is
submitted that the possession was taken in 1972. The suit was required to be filed
within three years from that date. It is submitted that the resumption was made in
1970 and such resumption could have been challenged only within three years.
18. We have heard the learned counsel appearing for the parties at great
length. We have also perused and considered the oral and documentary evidence
on record. We have also considered the various judgments cited at the Bar by both
sides and relevant provisions of law. We have also gone through the written
submissions submitted by the learned counsel appearing for the parties.
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-22-
19. So far as the first argument of Mr. Shah regarding decree for
possession passed by the trial Court in RCS No. 946 of 1965 is concerned, it is
required to be noted that the trial Court decreed the suit on 29th June, 1969
against which an appeal was preferred by the respondent. The operative part of the
order of the Appellate Court in the aforesaid Appeal reads as under:
“The appeal is allowed. The decree of the trial Court is set aside.
The plaint be returned to the plaintiffs-respondents for
presentation to the property court under the provisions of Order VIIRule 10 of the Code of Civil Procedure. The injunction granted as
per Exh. 19 stands vacated. Costs to be the costs in the cause.”
The plaint was thereafter transferred to the regular Court. It is not in dispute that
thereafter the aforesaid suit was dismissed for default. There is nothing on record
to show that the suit was thereafter restored to file. Considering the aforesaid
factual aspect, which is not in dispute, in our view, it is not possible for us to accept
the argument of Mr. Shah that there is also a decree for possession passed by the
competent Court in favour of the plaintiff. It is required to be noted that the decree
passed under the Rent Act having been set aside by the Appellate Court, it cannot
be said that any decree was subsisting in favour of the plaintiff which can be
saved as per the judgment of the Supreme Court in the case of Jairam Tyagi
(supra). Even if the Appellate Court on wrong premises sets aside the decree,
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-23-
then also unless the order of the Appellate Court is set aside by higher forum, the
order of the Appellate Court is binding between the parties and the net result of the
same is that there was no decree in favour of the plaintiff which could have been
executed. In that view of the matter, it cannot be said that there was a valid
decree in favour of the plaintiff which could have been saved. Once the decree of
the trial Court is set aside by the Appellate Court, that decree cannot remain to be
enforceable decree as there is no decree at all and the fact that subsequently the
suit was thereafter dismissed for default, and the original suit filed by the plaintiff
no longer survives, there can never be said to be any decree in favour of the
plaintiff. In that view of the matter, it is not possible for us to accept the say of Mr.
Shah that there is already a decree for possession which exists in favour of the
plaintiff. Under these circumstances, since there was no decree in existence in
favour of the plaintiff, there is no question of saving the said decree and,
therefore, the said judgment of the Supreme Court is not applicable in the present
case.
20. Mr. Shah thereafter relied upon various judgments on the aspect of
denial of title. It is submitted by Mr. Shah that it was not open for the defendant to
deny the title of the plaintiff. In the instant case, the plaintiff has filed the suit
based on title. According to the defendant, the plaintiff was not having any
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-24-
ownership rights on the land in question. The suit of the plaintiff is not based for
getting decree for eviction against the tenant on the ground of denial of title but
the suit is for declaration wherein the Plaintiff has claimed declaration of her rights.
When both sides have led evidence in connection with the proof of title, the only
issue which the trial Court was required to decide was the title of the plaintiff over
the suit land.
21. The real question which requires consideration is whether the plaintiff
can be said to have proved her title over the suit property as prayed for in the suit.
In this connection, the plaintiff has examined her Power of Attorney holder i.e. son
of the plaintiff Bahiram Nanabhai Jeejeebhoy, at Exh.24. The said witness has
stated that the plaintiff is his mother. He has deposed that the suit land
admeasures 1 acre and 30 gunthas. On the said land, there is a dwelling house,
a garage, a servant’
s quarter as well as cooking house which is separate. There is
also a structure upon the suit land. He has stated that his grandfather viz.
Cawasjee Dhanji Shah had purchased the suit property initially from a person
namely one Mr. Irani in 1912. Thereafter his grand father had occupied the suit
property and in the year 1930 he had given it to the defendant under registered
lease deed dated 23rd June, 1930. The period of lease was five years and on
expiry of this lease, it had been renewed for further five years under a registered
lease deed dated 18th July, 1935. The said witness has stated that in the year
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-25-
1932 his grand father had made a settlement deed whereby he gave a life interest
regarding suit property to his wife and after the death of his wife, the property
devolved upon the plaintiff absolutely and accordingly the plaintiff has become the
absolute owner of the suit property. The defendant was paying rent in respect of
the suit property to his grand mother. It is stated by the said witness that the suit
property was never subjected to any grant or to any old grant. The said witness
has deposed that he had filed a suit bearing No. 946 of 1965 for possession and
money claim. The said suit was decreed in their favour and that in appeal the
Appellate Court directed the plaintiff to present the suit in proper Court. The said
witness has further stated that on 23rd February, 1965 the plaintiff made an
application to the Cantonment Board, Pune for transferring the suit property in
her name due to death of her mother and at that time the Military Estate Officer
had made a condition for transfer of property in her name, if she signs an
admission certificate. The said witness has stated that the plaintiff did not
understand the implications of the admission certificate dated 24th April, 1965.
The said witness has further stated that the admission certificate obtained by the
Military Estate Officer was illegal. The said witness has also stated that Civil Suit
No. 599 of 1974 was dismissed for default and that an application was preferred
for restoration being Application No. 691 of 1979 and as per his knowledge, the
said application had not been disposed of. In paragraph 9 of his evidence, he has
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-26-
stated that in the year 1982 they came to know about the judgment of the Bombay
High Court regarding old grant in the case of one Anklesaria. He has further
stated that in that case the Bombay High Court has ruled that the old grant was
not in existence and any resumption on the basis of an old grant automatically
become void. The said witness has stated that the Government had not produced
any old grant in the said case. The said witness has further deposed that the
properties did not vest lawfully with the defendant. In the cross-examination, the
witness has stated that it is correct to say that the father of the plaintiff is not an
original allottee in respect of the suit property. The said witness has also stated
that he did not know if by a Gazette of 1827 the individual rights in private lands
had been extinguished. The witness denied the suggestion that the father of
plaintiff had purchased the suit property having the knowledge that he had only
occupancy rights in the suit property. He has stated that the father of the plaintiff
did not obtain any permission from the Central Government for the sale deed. In
para 15 the witness has admitted the fact that his mother had accepted the
amount of compensation from the Government under protest.
22. At this stage, reference is required to be made to Exhibit Nos. 31 to 35.
Exhibit-31 is a letter written by the Plaintiff addressed to the Military Estate
Officer regarding transfer of suit bungalow in the name of the plaintiff. It has been
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stated in the said letter that the plaintiff is willing to abide by the terms and
conditions of the grant in respect of the property and will abide by the terms and
conditions of the Cantonment tenure in respect of the said property. Exhibit-32 is
also a letter admittedly written by the plaintiff regarding transfer of suit bungalow in
the name of the plaintiff. In the said letter, the plaintiff enclosed affidavits of her
sisters who have given no objection to transfer the said property in the name of
the plaintiff. Exhibits-32 to 35 are the affidavits sworn by the sisters of the plaintiff.
The mutation entry dated 13th May, 1965 showing the name of the occupant
plaintiff as the holder of occupancy right of the property is placed on record at
Exhibit-36. Exhibit-56 is a copy of Government General Order dated 6th January,
1827, which reads as under.
“The Honourable the Governor in Council thinks it necessary
to explain in General Order that any permission which officers
not provided with public quarters may receive to erect houseson ground within a fortress or military cantonment confers on
them no right of property whatever in the ground allotted them
for that purpose, which continues the property of the State,
and resumable at the pleasure of Government.”
23. From the said order, it is irrefutable that the land which belongs to the
Government about which any grant is allotted to any person, no right of property
vests in those persons and the land continues as the property of the State and
resumable at the pleasure of the Government. So far as Exhibit-61 is concerned,
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-28-
the same is a copy of the registered deed of conveyance dated 25th October, 1912
in respect of the suit property executed by one Khodadad Rustom Irani in favour of
father of the plaintiff. Witness No.1 in his cross-examination has admitted that the
plaintiff’s
father did not obtain any permission from the Central Government for the
said deed of conveyance. There is no document on record about the exclusive title
by Khodadad Rustom Irani in respect of the suit property.
24. Considering the documentary evidence on record, in our view, the trial
Court has rightly found that the plaintiff has failed to establish the title over the suit
property. Exhibit-68 is the certified true copy of the register of Government land
held as per Section 271 of the Cantonment Code, 1912. In the remarks column of
the said register, it has been stated that the suit bungalow and some other
property had been leased to the Secretary of State for five years from 20th April,
1930 at the rent of Rs. 745/- p.m. It is required to be noted that the plaintiff has not
led any evidence to prove the title over the suit property, though the initial burden
lies on the plaintiff to prove the same.
25. At this stage it is necessary to refer the definition of “lessee” appearing
in the Cantonment Code, 1912. The same reads thus:
“”lessee” means a person who has been granted permission,
whether before or after the commencement of this Code, to
occupy, for the purposes of a building site, land belonging to the::: Downloaded on – 09/06/2013 14:15:48 :::
-29-Government in a cantonment, and includes the successors in
interest of a lease.”
26. We are not impressed by the argument of Mr. Shah that the defendant
has failed to lead any evidence to show that the property was given to the
predecessor in title of the Plaintiff on lease. The plaintiff and her predecessor
were merely holders of the occupancy right in respect of the suit land which was
held by the predecessor-in-title of the plaintiff in terms of old grant of 1827. So far
as the judgment of the Bombay High Court in Anklesaria’s
case is concerned, the
Supreme Court has held as under:
“These transferred cases are remitted back to the High Court for
disposal, keeping in view the following directions.
1. While considering the merit of the case the High Court shall
not place any reliance upon the Division Bench judgment of the
High Court consisting of D.M. Rege and R.A. Jahagirdar, JJ.
Rendered in Special Civil Application No. 1286/72 decided on
5/6th February, 1979 against which appeals are pending in this
Court.
2. While considering the case, if the High Court finds that the
trial court or the first appellate court has placed reliance or made
any reference to the aforesaid judgment of the Division Bench, it
shall ignore that judgment, to that extent, and the High Court
shall decide the matter afresh in accordance with law withouttaking into consideration or being influenced by the aforesaid
judgment of the Division Bench.”
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-30-
In view of the direction contained in para 2 above, the Supreme Court on 25th
March, 1992 disposed of the appeals on the ground that the same have become
infructuous.
27. Mr. Shah has relied on the judgment of the Supreme Court in the case
of Union of India vs. Purushotam Dass Tandon, 1986 Supp. SCC 720. He has
submitted that the burden is on the Union of India to establish its title by producing
the particular grant relating to the land ought to be resumed. Mr. Shah has also
invited our attention to the various provisions of the Cantonments Act, 1924. He
submitted that under the Cantonment laws, a Cantonment Authority such as the
Board is in the nature of a Municipality and is essentially a local self-Government
body and that the Cantonments have from time to time extended the limits which
fall within the Cantonment area. To support the case of the plaintiff, Mr. Shah
has invited our attention to the provisions of Sections 3, 4 , 5 of the Act and
submitted that there can be private property within the limits of the Cantonment
area.
28. Mr. Rajguru, learned counsel for the respondent has relied upon the
decision in the case of Kaikhusru Aderji Ghaswala and others vs. Secretary of State
for India in Council, Vol. 38 Indian Appeals L.R. Page 204, wherein it has been
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-31-
held that on a consideration of the Bombay Regulations applicable to cantonments
from the year 1819, that the military authorities held the whole cantonment area in
full proprietary right. In the said case the appellants were mere licensees of the
land in suit, which was not shewn to differ in its tenure and terms from the rest of
the cantonment areas. It was held that the houses or bungalows built by them
thereon were subject to expropriation at a price to be fixed by the said authorities.
29. In the case of Secretary of State for India in Council vs. Satish Chandra
Sen, Vol. LVII Indian Appeals 339, it has been held that it is not necessary
implication from the Bengal Cantonment Rules, 1836, that all land within the
cantonment in Bengal is Government property but long possession by a private
person is not by itself sufficient to establish his title to land so situate. It was
further held that the respondent in the said case though entitled to the
compensation awarded in respect of the house, was not entitled to the
compensation awarded for the land, as he had not established his title thereto.
30. In the case of Raj Singh (supra) it has been held that the regulations
contained in Order No. 179 of 1836 regarding the grant of lands situated in
cantonment areas are provisions of a statutory nature which were continued by the
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Government of India Act from 1859 to 1935 on the principle embodied in Section
24 of the General Clauses Act, 897.
31. In the case of Chief Executive Officer vs. Surendra Kumar Vakil and
others, AIR 1999 SC 2294, it has been held by the Supreme Court thus:
“17. The respondents drew our attention to a decision of this
Court in the case of Union of India v. Purshotam Dass Tandon,
1986 (Supp) SCC 720, where this Court observed that theUnion of India had made no effort to establish its title and the
grant had not been produced. Hence the terms of the grant or
the date of the grant were not known. Therefore, the Union ofIndia could not succeed in its contention that the land in the
cantonment was held on old grant basis. In the present case,
however, apart from the requirements of Order No. 170 of
Governor General in Council, 1836, the general land register
maintained under the Cantonment Land Administration Rules of1925 has been produced which supports the contention of the
appellants that the land is held on old grant basis. Theappellants have also led evidence to show that the file
containing grant in respect of the said property, is not available
with them because it has been stolen in the year 1985. The
respondents on the other hand have not produced anydocument of title pertaining to the said land or showing the
nature of the rights of the respondents over the said land except
the sale deeds referred to earlier. The stand of the respondents
relating to their rights over the said land has changed from time
to time. In the sale deeds executed by the vendees in favour ofthe respondents, the land is described as leasehold cantonment
land. This was later changed by the respondents in the
amendment deeds to old grant land. In the suit, the
respondents have contended that they have become the
absolute owners of the said land. These bare assertions do not::: Downloaded on – 09/06/2013 14:15:49 :::
-33-carry any conviction. Had there been any conveyance or lease
in respect of the said lands executed in favour of the
respondents or their predecessor in title, such conveyance or
lease should have come from their custody. There is,therefore, no document before the Court which would show that
the respondents were the absolute owners of the said land as
now contended by them. The Regulations as well as the
general land registers, on the other hand, which are olddocuments maintained in the regular course and coming from
proper custody, clearly indicate that the land is held on old grant
basis. This is, therefore, not a case where the appellants had
not produced any evidence in support of their contention that
the land in the cantonment area was held on old grant basis byMukherjee.
18. The Respondents have drawn our attention to the decision
in the case of Krishnan v. Kurukshetra niversity, Kurukshetra,
AIR 1976 SC 376, for showing that any admission made bythem in ignorance of legal rights cannot bind them. This
judgment does not help the respondents because the fact
remains that the respondents have taken a changing stand in
relation to the nature of their rights over the disputed land. The
admissions, at least, indicate that the respondents were, at thematerial time, not sure about the exact nature of their right over
the said land. Hence they have at one stage described thenature of their rights as leasehold, at another stage as old grant
and at a third stage they have retracted from their admissions
that the land was old grant. The last deed merely states that
they have the same rights as their vendees had in the said land.
Looking to the nature of evidence, therefore, which was led in
the present case, the High Court was not justified in coming to
the conclusion that the land was not held on old grant basis by
Mukherjee.”
According to the learned counsel for the respondent, the only document of grant is
document of 1927 and there is no separate grant. The plaintiff has failed to prove
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that the property never belonged to Government and that the respondents are not
entitled to resume the said land.
32. It is required to be noted that in the original plaint no prayer for
possession has been made at all and it is not in dispute that the possession was
taken away in the year 1972. The plaint has not filed within three years from the
date of dispossession. The resumption notice is of the year 1970. The suit is not
filed within three years either from 1970 or even from 1972 when actual possession
was taken. Under these circumstances, the Plaintiff with an open eye and with the
full knowledge has given the admission certificate on 24th April, 1965. As stated
above, though the resumption notice was issued in 1970 and possession was taken
in 1972, the suit was filed in the year 1983. Apart from that, after taking
compensation, the plaintiff has also asked for higher compensation with a request
to refer the matter to Arbitrator. Under these circumstances, the plaintiff has failed
to prove her title over the suit property. The plaintiff has merely taken a chance in
view of the judgment of this Court in Anklesaria’s
case which judgement has been
set aside by the Supreme Court. Even otherwise, the period of limitation cannot be
extended simply on the ground that subsequently the plaintiff came to know about
the Division Bench Judgment of this case in Anklesaria’
s case. Even otherwise, the
plaintiff’
s rights were already determined when the plaintiff accepted the
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compensation.
33. Considering the evidence on record, we are of the opinion that the
plaintiff has failed to prove her title over the land. The predecessor in title of the
plaintiff was given only occupancy right by way of grant and the plaintiff had
constructed a superstructure over the land in question for which the plaintiff was
offered compensation. The plaintiff had requested for higher compensation for
which even a committee was also constituted. Chapter XX of the Cantonment
Code, 1912, deals with the Committees of Arbitration. Sections 259 and 260
thereof reads thus:
“259. For the purpose of determining the amount of monthly rent to
be paid for a house, every committee of arbitration shall estimate,
as nearly as may be, the market value of all buildings andauthorized additions; and the amount of rent determined upon shall
be such percentage on such market value as the Committee ofarbitration may think reasonable with reference to the
circumstances of the neighbourhood and the period of time and
season fro which the house is likely to be occupied during the year,
and shall include the taxes (if any) levied upon the land, or suchproportion thereof as the Committee of arbitration may find to be
customarily paid for the time being in the neighbourhood by
tenants.
260. (1) The decision of every committee of arbitration shall be
determined by the majority of the votes taken at a meeting at which
all the members are present.
(2) The decision of every committee of arbitration shall be final.”
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According to the Plaintiff, the Arbitration Committee had not yet determined the
plaintiff’s
claim for additional compensation.
34. The plaintiff had signed the admission certificate on 24th April, 1965.
The plaintiff at the relevant time was not bothered to challenge the admission
certificate. The admission certificate executed by the plaintiff reads as under:
” I, undersigned Mrs. Dosibai Nanabhoy – Jeejeebhoy residing at
1, Church Road, Poona, owner of bungalow No. 11,GLR Sy. No.
40A ,Staveley Road, Poona Cantonment, Sub-District and TalukaHaveli, District Poona bounded on the North by G.L.R. Sy. No.
403 on the South by G.L.R. Sy. No. 405 on the East by G.L.R. Sy.
No. 275 and on the West by G.L.R. Sy. No. 400 do hereby
subscribe to the conditions (reproduced below) of the original
grant pertaining to the site thereof and this agreement shall be
binding on me, as well as my heirs, successors and assigned as
the case may be, whoever shall be in possession of the said
property.
CONDITIONS
1. Permission to occupy ground in a Military Cantonment
confers no propriety right. It is continues the property of the state
and resumable at the pleasure of Government, but in all
practicable cases one months’ notice of resumption will be given
and the value of all buildings which may have been authorised tobe erected thereon, as shown in the accompanying plans,
estimated by the Committee contemplated in General order.
Separate of 1856, will be paid to the owner.
2. That no buildings are to be erected on the ground other than
those new existing and shown on the attached plans and no
additions of alterations are to be made thereto without the
permission of the officer commanding the station. A sum of Rs. Nil
is being paid to the Central Government as rent per annum.
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3. The ground, being the property of Government cannot be
sold by the guarantee. The building as may be should by (?)
house owner with the previous permission of the Office
Commanding the Station.
4. That the military authorities have the power to cancel
the grant if they found is used for any purpose other than for
which it was originally granted.
5. I also agree to abide by any orders and rules that may be
passed regarding tenure of land in cantonment.”
35.
Considering the aforesaid aspect of the matter and considering the
conduct of the plaintiff, it is crystal clear that the plaintiff, after taking compensation
and in fact had asked for higher compensation, has ultimately filed the suit after a
great delay in view of the judgment of this Court in Ankalesaria’s case. On the
contrary, the plaintiff in the meanwhile had asked for higher compensation by
asking the defendant to refer the case to the Arbitration Committee for the same.
It is required to be noted that so far as Anklesaria’
s case is concerned, that
judgment was set aside by the Supreme Court and, therefore, the ratio in that case
is no longer be made applicable to the present case. Even otherwise, even
assuming that the aforesaid judgment is applicable, then also it cannot save the
limitation period, as the plaintiff after having accepted the compensation has filed
the suit in the year 1983 and the plaintiff was in the meanwhile already
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dispossessed from the suit property. The suit of the plaintiff for declaration is,
therefore, clearly barred by limitation and now after such a long time after having
accepted the amount, the clock cannot be set back. The plaintiff by filing the suit
has merely taken chance in view of the law declared by this Court in Anklesaria’s
case. Considering the documentary evidence on record, we are satisfied that the
defendant has validly resumed the land and the plaintiff has validly executed the
admission certificate. Considering the totality of the evidence on record and
considering the facts of the case, we are of the opinion that the plaintiff is not
entitled to any relief in the suit and as pointed out earlier, reference to rent Court
suit is absolutely irrelevant as the decree passed in the said suit is reversed by
the Appellate Court by returning the plaint and thereafter that suit was dismissed
for default. When the decree of the rent court is already set aside by the Appellate
Court, whether it is rightly set aside or not, the fact remains that the decree is set
aside and, therefore, there is no enforceable decree which can be said to be in
existence in favour of the plaintiff so far as that suit is concerned. In our view, the
judgment of the appellate court in that case is binding between the parties, unless
it is reversed by the Higher Court. Simply because in some other proceedings (i.e.
in Anklesaria’
s case on which strong reliance has been placed by the plaintiff), a
different view is taken, that itself cannot take the case of the plaintiff any further.
At the cost of repetition, in our opinion, the judgment of the appellate court in the
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-39-
rent case has become final and has attained the finality. The suit of the plaintiff
is, therefore, not sustainable at all and, in our view, the trial Court has rightly
appreciated the evidence on record and has reached the conclusion that the
plaintiff has failed to prove that land was allotted to her and the plaintiff was owner
of the land in question or that the admission certificate is nullity. We, therefore, do
not find any substance in this appeal. The appeal is accordingly dismissed with
costs.
36.
So far as the amendment application being Civil Application No. 5207
of 2008 preferred by the appellants herein is concerned, since on merits we found
that the plaintiff has failed to prove her case regarding proving her title over the
suit property, it is not necessary for us to consider the prayer for amendment of
the plaint. However, even otherwise, so far as the prayer for possession is
concerned, the same is, on the face of it, barred by limitation as the plaintiff was
dispossessed in 1972 and the amendment application is filed in 2008, at the time
of final hearing. The Civil Application is nothing but an afterthought and
considering the facts and circumstances of the case, in our view, the amendment
as sought for in the said Civil application is required to be rejected. The prayer for
amendment, therefore, is also rejected. The Civil Application is accordingly
rejected.
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-40-
37. The Appeal and the Civil Application are accordingly dismissed.
38. In view of the above, no orders are required to be passed in connected
Civil Applications viz. Civil Application Nos. 152 of 2003, 475 of 2004 and 5487 of
2007 and the same are accordingly disposed of.
ig (P.B. MAJMUDAR, J.)
(SMT. R.P. SONDURBALDOTA, J.)
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