{"id":156730,"date":"2009-01-20T00:00:00","date_gmt":"2009-01-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mrs-dosibai-nanabhoy-jeejeebhoy-vs-the-union-of-india-on-20-january-2009-2"},"modified":"2017-09-25T20:58:14","modified_gmt":"2017-09-25T15:28:14","slug":"mrs-dosibai-nanabhoy-jeejeebhoy-vs-the-union-of-india-on-20-january-2009-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mrs-dosibai-nanabhoy-jeejeebhoy-vs-the-union-of-india-on-20-january-2009-2","title":{"rendered":"Mrs. Dosibai Nanabhoy Jeejeebhoy vs The Union Of India on 20 January, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Mrs. Dosibai Nanabhoy Jeejeebhoy vs The Union Of India on 20 January, 2009<\/div>\n
Bench: P. B. Majmudar, R.P. Sondurbaldota<\/div>\n
                                                         -1-\n\n                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n\n\n                                                                                                 \n                                   CIVIL  APPELLATE JURISDICTION\n\n\n\n\n                                                                        \n                                FIRST APPEAL NO. 81 OF 1993\n                                             with\n                            CIVIL APPLICATION NO. 5207 OF 2008\n                                             And\n               Civil Application Nos. 152 of 2003, 475 of 2004 & 5487 of 2007\n\n\n\n\n                                                                       \n    Mrs. Dosibai Nanabhoy Jeejeebhoy, represented by                              )\n    (a) Byram Nanabhoy Jeejeebhoy                                                 )\n    (b) Avi Behram Doctor                        )\n\n\n\n\n                                                        \n    (c ) Behram Doctor                                                            )\n    having their address at 83, Jolly Maker Chamber II,                           )\n    Nariman Point, Mumbai-400 021.\n                                     ig                                           )...Appellants.\n\n                       Versus\n                                   \n    The Union of India, through Secretary to the                                  )\n    Government of India, Ministry of Defence, South                               )\n    Block, New Delhi.                                                             )..Respondents\n       \n\n    Mr. Mahendra Shah, Senior Advocate, with Mr. K. Presswalla and Mr. Rajesh\n    Rathod, instructed by M\/s. Bilawala & Company, for the appellants. \n    \n\n\n\n    Mr. S.R. Rajguru with Ms. Nisha Valani for the respondents.\n     \n                                                            CORAM:  P.B. MAJMUDAR  &\n\n\n\n\n\n                                                                             \n                                                                            SMT. R.P. SONDURBALDOTA,       JJ. \n                                                                                                             \n                                                                                            th\n                                                     Judgment reserved on:       17            October,2008\n                                                                                                             \n                                                                                             th\n                                                   Judgment pronounced on:   20                 January, 2009\n                                                                                                               \n\n    JUDGMENT  (Per P.B. Majmudar, J.)\n<\/pre>\n
                   This   appeal   is   directed   against   the   judgment   and   decree   dated   30th<\/p>\n
    September,   1991,   passed   by   the   learned   Joint   Civil   Judge,   Senior   Division   at<\/p>\n
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\n                                                      -2-<\/span><\/p>\n
    Pune,   in   Special   Civil   Suit   No.     287   of   1983.     By   the   impugned   judgment   and<\/p>\n
    decree, the suit filed by the original plaintiff  has been dismissed by the learned trial<\/p>\n
    judge.\n<\/p>\n
    2.            The plaintiff is the original owner of land situate at 11, Staveley Road,<\/p>\n
    Pune   Cantonment,   along   with   the   main   bungalow   and   various   out-houses,<\/p>\n
    servants’
\n             quarters etc., hereinafter referred to as “the suit property”.  The  aforesaid<\/p>\n
    suit was filed for a declaration that the suit property   vests exclusively with the<\/p>\n
    plaintiff and the defendant has no right, title or interest in the ownership thereon.\n<\/p>\n
    The plaintiff has also prayed for a declaration that the defendant has no right of<\/p>\n
    resumption  in respect of the suit property and the resumption notice dated 22nd<\/p>\n
    October, 1970 and the letter dated 6th November, 1970 are invalid, void and of no<\/p>\n
    legal effect.  A further declaration was also sought in the suit to the effect that the<\/p>\n
    “Admission   Certificate”  dated   24th  April,   1965     is     void   and   not   binding   on   the<\/p>\n
    plaintiff.  It is also prayed that the defendant be directed to deliver up the Admission<\/p>\n
    Certificate dated 24th April, 1965  and the said  Admission Certificate be cancelled.\n<\/p>\n
    3.            It is the case of the plaintiff that she is the owner of the suit property viz.\n<\/p>\n
    all that piece and parcel of land bearing   No.11, Staveley Road, Pune Cantonment,<\/p>\n
    consisting   of   the   main   bungalow   together   with   out-houses,   servants’  quarters,<\/p>\n
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\n                                                     -3-<\/span><\/p>\n
    garages, stables and a garden admeasuring about 1 acre and 30 gunthas together<\/p>\n
    with ground,   trees, fences, etc.    It is the case of the plaintiff that the above suit<\/p>\n
    property was owned absolutely by late Cawasjee Dhunjeeshaw, the father of the<\/p>\n
    plaintiff.  It is averred by the plaintiff in the plaint that her father said late Cawasjee<\/p>\n
    Dhunjeeshaw   by   an   indenture     dated   23rd  June,   1930,     between   him   and   the<\/p>\n
    Secretary   of   State   for   India   in   Council   leased   the   dwelling   house   to   the<\/p>\n
    predecessors of defendant in the suit property together with out-buildings, grounds,<\/p>\n
    gardens, trees, fences, ditches, wells, easements and appurtenances to the said<\/p>\n
    dwelling house   for a period of five years from 20th  April, 1930, at the rate of Rs.\n<\/p>\n
    745\/- excluding conservancy and water taxes.  After this lease had expired, a new<\/p>\n
    lease dated  18th July, 1935, was executed between  the parties, for another period<\/p>\n
    of five years commencing from 20th  April, 1935.   After the term of the lease,   the<\/p>\n
    defendants’ successors of the Secretary  of State  for  India    in Council, held the<\/p>\n
    property on the same terms and conditions contained in the said indenture  on the<\/p>\n
    basis of the monthly tenancy.   According to the plaintiff, after the demise of the<\/p>\n
    original lessor, the late Cawasjee Dhunjeeshaw, the monthly rent  in respect of the<\/p>\n
    suit   property   was   being   paid   by   the   defendant   to   the   widow   of   late   Cawasjee<\/p>\n
    Dhunjeeshaw, who was given a life interest in the said property.   The plaintiff was<\/p>\n
    given the full and absolute interest in the suit  property, after  her mother’
\n                                                                                 s death,<\/p>\n
    and she became and owner and lessor of the suit property.  The plaintiff filed a suit<\/p>\n
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\n                                                      -4-<\/span><\/p>\n
    bearing R.C.S. No. 1946\/1965 on 15th  April, 1964 (thereafter renumbered as Suit<\/p>\n
    No. 946 of 1965) in the Court of Civil Judge, Senior Division, Pune, for possession,<\/p>\n
    arrears of rent and damages.\n<\/p>\n
    4.            According to the plaintiff, the defendant failed to make payment of the<\/p>\n
    rents, taxes and other dues payable in terms of the lease and hence the plaintiff<\/p>\n
    became entitled to terminate the said lease and to take the possession of the said<\/p>\n
    property.   It is the case of the plaintiff that on 23rd February, 1965, she had applied<\/p>\n
    for transfer of the suit property in her own name upon her father’
\n                                                                     s death to the<\/p>\n
    Military Estate Officer,  Pune Circle, Pune-1, as she was given to understand that<\/p>\n
    such   an   application   was   necessary   in   Cantonment   Area.       It   is   alleged   by   the<\/p>\n
    plaintiff   that   taking   advantage   of   the   said   application,   the   defendant   made   a<\/p>\n
    condition of transfer that she should sign an Admission Certificate  acknowledging<\/p>\n
    Government   proprietary   interest   in   the   land.     The  plaintiff  had   signed     such<\/p>\n
    Admission Certificate on 24th April, 1965. The plaintiff was made to subscribe  the<\/p>\n
    condition of the original grant pertaining to the site  of the bungalow on the said suit<\/p>\n
    property.   It has been stated in the said Admission Certificate that permission to<\/p>\n
    occupy ground   in a military cantonment conferred no proprietary right and that it<\/p>\n
    continued to be the property of the State and was resumable at the pleasure of the<\/p>\n
    Government.  It is also the case of the plaintiff that the Civil Judge, Senior Division,<\/p>\n
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\n                                                        -5-<\/span><\/p>\n
    Pune, by judgment and  decree dated 29th June 1969 in Regular Civil Suit No. 946<\/p>\n
    of 1965, directed  the defendant to hand over possession of the suit property and<\/p>\n
    pay  to the plaintiff Rs.  2,845.37  with costs of the suit and future interest on the<\/p>\n
    same.  The defendant had challenged the said decree by way of an appeal, being<\/p>\n
    Appeal  No.  213 of 1970, in the District  Court,  Pune.   The  District  Court,  Pune,<\/p>\n
    stayed the and execution of the decree in the said appeal.\n<\/p>\n
    5.            It is the case of the plaintiff that by a purported resumption notice dated<\/p>\n
    22nd October, 1970,  the defendant informed the plaintiff that all rights, easements<\/p>\n
    and interest in the suit property were seized on the expiry of 30 days of the notice.\n<\/p>\n
    As per the recital in the said notice, the suit property   belonged to the defendant<\/p>\n
    and was held on old grant terms.   By the said notice, the defendant offered to pay<\/p>\n
    the   plaintiff   a   sum   of   Rs.   36,268\/-   as   the   value     of   the     authorised   erections<\/p>\n
    standing on the said land.   The Military Estate Officer, Pune Circle, requested the<\/p>\n
    plaintiff by letter dated 6th November, 1970 to hand over the possession of the suit<\/p>\n
    property with all the buildings and erections standing thereon to the representative<\/p>\n
    of the defendant  on 25th November, 1970, at 11.00 hrs. in terms of the said notice.\n<\/p>\n
    6.            It is the  case of the plaintiff that the defendant was  not the owner of<\/p>\n
    the land and was not entitled to resume the land or buildings thereon.  The plaintiff<\/p>\n
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\n                                                       -6-<\/span><\/p>\n
    made an application before the Assistant District Judge, Pune, in the said appeal<\/p>\n
    No. 213 of 1970, to restrain the defendant  from resuming the land. An order was<\/p>\n
    passed on 19th November, 1970 to that effect.  The defendant thereafter  vide letter<\/p>\n
    dated 23rd January, 1971 enclosed a cheque of Rs. 36,268\/- towards the purported<\/p>\n
    compensation of the buildings.    The plaintiff returned  the said cheque in view of<\/p>\n
    the pendency  of legal proceedings.   In the meanwhile, the Assistant District Judge<\/p>\n
    disposed of the said Appeal No. 213 of 1970 on 28th March,  1972,  in favour of the<\/p>\n
    defendant   by   holding   that   the   provisions   of   the   Rent   Act   did   not   apply   to   the<\/p>\n
    Cantonment.    The plaint was thereafter returned for presentation to the Court of<\/p>\n
    Small Causes, Pune on 28th April, 1972  and was numbered as Civil Suit No. 1435<\/p>\n
    of 1972. The said suit was transferred  to the Principal Civil Judge, Senior Division,<\/p>\n
    Pune  and  numbered  as  R.C.S.  No.  599\/1974.    According  to  the   plaintiff,  by   an<\/p>\n
    oversight, no application for injunction against the resumption of the suit property<\/p>\n
    was made  on behalf of the plaintiff either before the Small Causes Court or before<\/p>\n
    the   Principal   Civil   Judge,   Senior   Division,   Pune.       On     17th  May,   1972,     the<\/p>\n
    defendant     purported  to   unilaterally   resume   and   assume   possession  of  the  suit<\/p>\n
    property. Correspondence ensued between the plaintiff and the defendant for the<\/p>\n
    receipt of compensation amount. The plaintiff ultimately accepted the defendant’
\n                                                                                   s<\/p>\n
    cheque  for Rs. 36,268\/- under protest.   The plaintiff also applied  to the defendant<\/p>\n
    for referring the matter to an arbitration Committee.  In pursuance of the plaintiff’s<\/p>\n
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\n                                                          -7-<\/span><\/p>\n
    request, one Lt. Col. D. Jagadesan was appointed as a Presiding Officer   of the<\/p>\n
    Arbitration   Committee.     It   is   the   case   of   the   plaintiff     that   the     said   Arbitration<\/p>\n
    Committee had not yet determined the plaintiff’
\n                                                  s claim  for additional compensation.\n<\/p>\n
    The plaintiff has further contended that the above RCS No. 599 of 1974 filed   by<\/p>\n
    the plaintiff before the Principal Civil Judge, Senior Division, Pune, was dismissed<\/p>\n
    for default on 29th  October, 1979, and that the restoration application filed by the<\/p>\n
    plaintiff is still pending disposal of the Court.\n<\/p>\n
    7.<\/p>\n
                     It is also the case of the plaintiff that somewhere in May, 1980, she<\/p>\n
    took   legal   advice   on   the   question   of   proceedings   relating   to   the   purported<\/p>\n
    resumption and her attention was drawn to the judgment of the Bombay High  Court<\/p>\n
    in   the   case   of  P.T.   Anklesaria   vs.   H.T.   Vashistha   and   others<\/a>,   AIR   1980   Bom.   9,<\/p>\n
    wherein the Division   Bench took the view that   it could not be laid down   as a<\/p>\n
    matter of law that no land in the Pune  Cantonment  could have been the subject<\/p>\n
    matter of private ownership  before or after the settlement of Cantonment limits.   In<\/p>\n
    the said case, the Division Bench has set aside the  resumption notice, which was<\/p>\n
    identical to the resumption notice in  respect of the  suit property.  It is also the case<\/p>\n
    of   the   plaintiff   that   the   defendant   have   been   in   wrongful   possession   of   the   suit<\/p>\n
    property since May, 1972 by way of purported exercise of their  so called  right of<\/p>\n
    resumption and that they have been wrongly using  the suit property without making<\/p>\n
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\n                                                        -8-<\/span><\/p>\n
    any   payment   of   rent   or   mesne   profits   or   other   charges     payable   to   the   plaintiff<\/p>\n
    which they are bound to pay under the terms of the indenture dated 18th July, 1935.\n<\/p>\n
    On   these   and   such   other   averments,   the   suit   was   filed   by   the   plaintiff   for<\/p>\n
    declarations, as stated above.\n<\/p>\n
    8.            The suit was resisted by the defendant by filing the written statement at<\/p>\n
    Exhibit-15.     The   defendant   denied   the   averments   and   allegations   in   the   suit.\n<\/p>\n
    According to the defendant, the plaintiff was the owner of only the main bungalow,<\/p>\n
    out-house, servants quarters, garages and stables and authorised to be built   but<\/p>\n
    were   not   the   owners   of   the   land.   According   to   the   defendant,   the   plaintiff   was<\/p>\n
    merely holder of occupancy rights in so far as the land admeasuring 1.30 acres<\/p>\n
    bearing   S.   No.   404   is   concerned.   The   said   land   was   held   by   the   plaintiff’s<\/p>\n
    predecessor in title  in terms of the old grant under condition No. GGO No. 14 of 6th<\/p>\n
    January, 1827. According to the defendant, the entire property now vests with the<\/p>\n
    Government of India after its resumption on 17th May, 1972.   It is the further case of<\/p>\n
    the defendant  that the Government had taken on lease a dwelling house in terms<\/p>\n
    of indenture dated  23rd June, 1930 but denies that on the basis of an indenture the<\/p>\n
    plaintiff got any title to the land underneath the dwelling house.   It is the case of the<\/p>\n
    defendant   in   the   written   statement   that   loosely   worded   indenture   ‘by premises’<\/p>\n
    meant   only     the   structures   erected   on   the   land   and   did   not   include   the   land.\n<\/p>\n
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\n                                                     -9-<\/span><\/p>\n
    According to the defendant,  the plaintiff was trying  to mislead the true facts of law.\n<\/p>\n
    It is denied by the defendant that   after expiry of lease in 1935, the Government<\/p>\n
    was holding over the same as statutory tenant on the premises.  It is also  the case<\/p>\n
    of the defendant that   after the war of 1817, the Military had occupied all the land in<\/p>\n
    the limits of  Cantonment  of Pune and the rights of private parties of private lands<\/p>\n
    were extinguished.   The gazette notification was published  in 1828 declaring the<\/p>\n
    limits of Cantonment of Pune.  There were no private land or private interest in the<\/p>\n
    Cantonment.       Subsequently,  Army   Officers and  selected   civilians   were  granted<\/p>\n
    land for construction of residential accommodation with a clear condition that no<\/p>\n
    proprietary rights will be conferred on grantees.  The plaintiff who had inherited the<\/p>\n
    property in 1965, was also explained the conditions which the property was held by<\/p>\n
    her   and   she   voluntarily   signed   the   “Admission   Certificate”   on   24th  April,   1965.\n<\/p>\n
    According to the defendant,   it is not open to the plaintiff   to say after seventeen<\/p>\n
    years that she had signed an application erroneously. According to the defendant,<\/p>\n
    the decree was passed by the Civil Judge, Senior Division in RCS No. 946 of 1965.\n<\/p>\n
    However, the plaintiff has for the reasons best known to her has not bothered to<\/p>\n
    state that the appeal was decided in favour of Government.   It is the case of the<\/p>\n
    defendant that the suit property was resumed after a valid notice giving one month’
\n                                                                                      s<\/p>\n
    time and an amount of compensation of Rs. 36,268\/- was offered to the plaintiff.\n<\/p>\n
    The plaintiff has never challenged  the right of Government for resumption but was<\/p>\n
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\n                                                    -10-<\/span><\/p>\n
    contesting that the  compensation is payable for the land also.   It is the case of the<\/p>\n
    defendant that in the case of  P.T. Anklesaria(supra), the Bombay High Court has<\/p>\n
    struck down only the powers of resumption of the Government  merely because  in<\/p>\n
    the   particular   property,   the   Government   could   not   produce   the   original   grant<\/p>\n
    pertaining to the power of resumption.  The said decision of the Bombay High Court<\/p>\n
    was, however, challenged in appeal before the Supreme Court   in SLP Nos. 608 to<\/p>\n
    621 of 1980.   The Appeals filed by the Government have been admitted by the<\/p>\n
    Supreme   Court.     According   to   the   defendant,   since   the   plaintiff   has   already<\/p>\n
    accepted compensation amount in 1976 and had elected for arbitration only to fix<\/p>\n
    the compensation which has already been admitted by the plaintiff and hence the<\/p>\n
    suit   is   hopelessly   barred   by   limitation   and   laches.     On   these   and   such   other<\/p>\n
    averments, the suit of the plaintiff was resisted by the defendants.\n<\/p>\n
    9.            The learned trial Judge  framed 21 issues arising out of the pleadings at<\/p>\n
    Exh.   20.     After   considering   the   oral   and   documentary   evidence   on   record,   the<\/p>\n
    learned trial Judge came to the conclusion that the plaintiff has failed to prove that<\/p>\n
    the suit property was owned absolutely by late Cawasjee Dhunjeeshaw, the father<\/p>\n
    of the plaintiff.  The trial Court also found that the plaintiff has   proved that the suit<\/p>\n
    property was leased to the Secretary of State for India in Council   for five years<\/p>\n
    from 20th April, 1930 at the rate of Rs. 745\/- per month. The trial Court  found that<\/p>\n
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\n                                                       -11-<\/span><\/p>\n
    the   plaintiff   has   only   proved   that   the   property   was   leased   to   the   defendant.\n<\/p>\n
    However, the plaintiff has failed to prove that after expiry of indenture dated 18th<\/p>\n
    July,   1935,   the   successors   of   the   defendants     held   the   suit   property   on   same<\/p>\n
    conditions in the said indenture on the basis of monthly tenancy.   The trial Court<\/p>\n
    has   found   that   the   plaintiff   has   failed   to   prove   that   she   became   the   owner   and<\/p>\n
    lessor of the suit property. The trial Court also found that the plaintiff has failed to<\/p>\n
    prove that the suit property was at all times privately owned by her predecessor-in-\n<\/p>\n
    title and by herself. The trial Court also found that the plaintiff has failed to prove<\/p>\n
    that she signed an Admission Certificate dated 24th  April, 1965, not realising the<\/p>\n
    consequences of signing and that she signed the certificate   thinking that it was<\/p>\n
    only a mere formality. The learned trial Judge had decided issue Nos.1, 3 to 17<\/p>\n
    against the plaintiff. The trial Court also found that the defendants proved that the<\/p>\n
    plaintiff or her predecessors were merely holders of occupancy rights in respect of<\/p>\n
    the suit property. The trial Court also found that the defendant proved that the suit<\/p>\n
    land   was   held   by   the   plaintiff’s predecessor-in-title   in   terms   of   old   grant     under<\/p>\n
    condition of GGO No. 14, dated 6th January, 1827 and that the entire suit property<\/p>\n
    now vests with Government of India under its resumption   dated 17th  May, 1972.\n<\/p>\n
    The   learned   trial   Judge   who   had   framed   an   additional   issue   regarding     law   of<\/p>\n
    limitation also held that the suit of the plaintiff was barred by the law of limitation.\n<\/p>\n
    On the basis of the aforesaid  findings, the  learned  trial Judge  by the impugned<\/p>\n
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\n                                                    -12-<\/span><\/p>\n
    judgment and decreed dated 30th September, 1991 dismissed the suit of the plaintiff<\/p>\n
    with costs.  It is the aforesaid judgment and decree which is impugned in the instant<\/p>\n
    appeal at the instance of the original plaintiff.\n<\/p>\n
    10.          Since the appellant-original plaintiff-has expired during the pendency of<\/p>\n
    this appeal, her heirs 1 (a) (b) and ( c) have been brought on record, pursuant to<\/p>\n
             s order dated 11th  June, 2004. .\n<\/p>\n
    the Court’<\/p>\n
    11.          During   the   course   of   hearing   of   the   appeal   for   final   hearing,   the<\/p>\n
    appellant-plaintiff has tendered on record a Civil Application for amendment of the<\/p>\n
    plaint being Civil Application No. 5207 of 2008. On 17th  October, 2008, this Court<\/p>\n
    passed the following order.\n<\/p>\n
            “1. Arguments concluded in the appeal.  Order reserved.\n<\/p><\/blockquote>\n
            2.   During the course of arguments, Civil application is tendered
\n            on record for amendment of the plaint. Since, we have heard both<\/p>\n
            the   learned   counsels   at   length   in   the   main   appeal,   the   learned
\n            counsel   for   respondent   is   permitted   to   file   reply   to   the   Civil
\n            Application   on   record,   latest   by   10th  November,   2008   and   copy
\n            may   be   furnished   to   the   other   side   before   the   said   date.   The<\/p>\n
            learned counsel for the appellant may file his reply on record by
\n            17th November, 2008. The written submissions on the amendment
\n            application of the plaint is permitted to both the sides, the same<\/p>\n
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\n                                                     -13-<\/span><\/p>\n
             may be filed latest by 17th November, 2008.   Learned counsel for<\/p>\n
             both sides are also permitted to give short written submissions on
\n             the main appeal, latest by 17th November, 2008 with a request that<\/p>\n
             it should be in a precise form and not very lengthy. The judgment
\n             will thereafter be pronounced after the aforesaid date at any time.”\n<\/p><\/blockquote>\n
    12.           Mr.   Mahendra   Shah,   learned     Senior   Counsel,   appearing   for   the<\/p>\n
    appellants has submitted that on 29th June, 1969, the Civil Judge, Senior Division,<\/p>\n
    Pune, decreed the suit filed by the plaintiff  and ordered the defendant to forthwith<\/p>\n
    give possession of the suit property. The defendant   filed an appeal against the<\/p>\n
    said   order   being     Appeal   No.   213   of   1970     before   the   Extra   Assistant   Judge,<\/p>\n
    Poona at Poona.  It was the submission of the plaintiff before the Appellate Court<\/p>\n
    that the appeal is a continuation of the suit and consequently once the Rent Act<\/p>\n
    has been made applicable  by the notification issued in the year 1969, it shall be<\/p>\n
    deemed that the Court gets the jurisdiction  and, therefore, the plaint ought not to<\/p>\n
    be returned to the plaintiff  under the provisions of Order VII Rule 10 of the Code of<\/p>\n
    Civil Procedure Code. According to the plaintiff,   the main relief sought for in the<\/p>\n
    suit was for possession and the same relief does occur under the provisions of<\/p>\n
    Transfer of Property Act and, therefore, the said relief ought to have been granted<\/p>\n
    to the plaintiff as it was within the jurisdiction of the Court of Civil Judge, Senior<\/p>\n
    Division.   After hearing the parties,   the Appellate Court vide judgment and order<\/p>\n
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\n                                                    -14-<\/span><\/p>\n
    dated 28th March, 1972 in Appeal No.213 of 1970, allowed the appeal,  set aside<\/p>\n
    the decree of the trial Court and returned the plaint to the plaintiff for presentation<\/p>\n
    to   the   proper   Court.   The   Appellate   Court   found   that   the   Civil   Judge,   Senior<\/p>\n
    Division, conducted the suit as a Small Causes suit and the  same was without<\/p>\n
    jurisdiction.   Mr. Shah has further submitted   that in view of the judgment   in the<\/p>\n
    case of  P.T. Anklesaria (supra), the Rent Act was applicable to the suit premises<\/p>\n
    and, therefore, the decree was rightly passed by the trial Court and in that view of<\/p>\n
    the matter, the decree passed by the  Civil Judge, Senior Division, Pune,  can be<\/p>\n
    said to be a valid decree and the same is binding between the parties.       It is<\/p>\n
    submitted by Mr. Shah that an identical decree in the case of P.T. Anklesaria  has<\/p>\n
    been passed.     It is further submitted by Mr. Shah that so far as the judgment<\/p>\n
    delivered in P.T. Anklesaria is not stayed, the said judgments holds the field as the<\/p>\n
    same has not been overruled.  It is submitted by Mr. Shah that the plaintiff has led<\/p>\n
    evidence   about   her   title   but   the   respondent     has   not   led   any   evidence   to<\/p>\n
    substantiate its say about handing over the land on the basis of original grant. The<\/p>\n
    original grant has not been produced on record and the burden is on the defendant<\/p>\n
    to prove such grant which they have not been discharged. Mr. Shah has further<\/p>\n
    submitted that the judgment  in Anklesaria’
\n                                              s case was given by the Bombay High<\/p>\n
    Court in a writ petition in which the petitioner therein had mainly and substantively<\/p>\n
    challenged   the   resumption   notice   given   by   the   respondents   on   the   ground   that<\/p>\n
                                                                 ::: Downloaded on – 09\/06\/2013 14:15:48 :::<\/span>
\n                                                      -15-<\/span><\/p>\n
    there   was   no   grant   whatsoever   from   the   Government   of   India   granting   to   the<\/p>\n
    petitioner or his predecessor-in-title, and in any event there is no grant containing<\/p>\n
    any terms for the Government to resume the land.  By the  impugned resumption<\/p>\n
    notice in the  said notice, the executive  could not deprive him of whatever right he<\/p>\n
    held in the property whether the right was absolute or limited and the prayer asked<\/p>\n
    for   was   a   writ   of   mandamus   to   declare   the   impugned   notice   and   all   actions<\/p>\n
    pursuant   thereto   as   void,     ultra   vires   and   of   no   legal   effect   and   ordering   the<\/p>\n
    respondents to cancel the said notice.\n<\/p>\n
    13.           It is vehemently submitted by Mr. Shah   that it was not open for the<\/p>\n
    defendant to deny the title  and if the title is denied then the decree for eviction is<\/p>\n
    required to be passed against the defendant for denial of title. Mr. Shah has relied<\/p>\n
    upon certain  judgments  regarding denial of title to which reference will be made<\/p>\n
    later on.  It is submitted by Mr. Shah that the defendant should have produced the<\/p>\n
    original grant which they have failed to produce. He has further submitted that the<\/p>\n
    defendant had no right to resume the land and such resumption is contrary to law.\n<\/p>\n
    It is submitted that since no grant is on record and the defendant has not led any<\/p>\n
    evidence in this behalf and the said judgment in Ankalesaria’s
\n                                                                  case is not reversed,<\/p>\n
    the same will operate as a precedent.   It is further submitted that the suit is filed<\/p>\n
    within 12 years and is within the limitation.  It is submitted that the defendant  has<\/p>\n
                                                                     ::: Downloaded on – 09\/06\/2013 14:15:48 :::<\/span>
\n                                                        -16-<\/span><\/p>\n
    not produced any evidence about grant and according to him there is no old grant<\/p>\n
    at all.  The defendant  has not shown, even in the written statement,  as to how,<\/p>\n
    rights over private lands of private parties were extinguished.     No evidence has<\/p>\n
    been led, to show that in general, private parties lands were taken away and in<\/p>\n
    particular, whether the land at 11, Staveley Road, Pune Cantonment, of the private<\/p>\n
    party was taken away.\n<\/p>\n
    14.            It is submitted by Mr. Shah that the decree passed by the Rent Court<\/p>\n
    can be said to be binding decree and when ultimately if the title of the plaintiff is<\/p>\n
    established in law the plaintiff can file a fresh suit for possession. It is submitted by<\/p>\n
    Mr.   Shah   that   under   Section   28   of   the     Rent   Act,   Rent   Court   was   the   only<\/p>\n
    competent Court to pass a decree and the decree passed by the Rent Court is said<\/p>\n
    to be binding   between the parties.\n<\/p>\n
    15.            Mr. Shah also submitted that in Cantonment area there can be private<\/p>\n
    property   for   which   he   has   relied   upon   the   provisions   of   the   Cantonment   Code,<\/p>\n
    1912.  It is submitted by Mr. Shah that document at Exh. 68 cannot be said to be<\/p>\n
    an   old   grant.     It   is  submitted   that  it   cannot  be   said   that   a   grant  was   given   for<\/p>\n
    constructing bungalow and other structure in the land belonging to the respondent.\n<\/p>\n
    It is submitted that in the original plaint, there is already a decree for possession<\/p>\n
                                                                       ::: Downloaded on – 09\/06\/2013 14:15:48 :::<\/span>
\n                                                         -17-<\/span><\/p>\n
    and,   therefore,     it   was   not   necessary   to   ask   for   possession   in   this   Suit.     It   is<\/p>\n
    submitted by him that the decree passed by the Rent Court is saved in view of the<\/p>\n
    judgment of the Supreme Court in the case of  Jai Singh Jairam Tyagi vs. Maman<\/p>\n
    Chand Ratilal<\/a> ,  AIR  1980 SC 1201.   In the said case the Supreme  Court in para<\/p>\n
    8 observed thus:\n<\/p>\n
             “8.  Shri V.M. Tarkunde, learned counsel for the appellant urged
\n             that   sub-section   (4)   had   to   be   read     in   the   context   of   sub-
\n             sections (2) and (3) and that it was to be applied only to cases<\/p>\n
             where     notification   issued   under   sub-section   (1)   was   given
\n             retrospective effect under the provisions of sub-section (2). We<\/p>\n
             see no  justification for confining the applicability of sub-section
\n             (4)   to   cases   where   notifications   are   issued   with  retrospective
\n             effect under sub-section (2).   Sub-section (4) in terms is not so<\/p>\n
             confined.     It   applies   to   all   cases   of   decrees   or   orders   made
\n             before the extension of a State legislation to a cantonment area
\n             irrespective   of   the   question   whether   such   extension   is
\n             retrospective or not. The essential   condition to be   fulfilled is
\n             that the decree or order must have been made as if the State<\/p>\n
             legislation was clearly in force, although, strictly speaking, it was
\n             not so in force.   In our view, sub-sec. (4)   is wide enough to<\/p>\n
             save all decrees and orders made by the wrong application of a
\n             State   rent   control   and   house   accommodation   legislation   to   a
\n             cantonment area, though such State legislation  could not in law
\n             have   been     applied   to   Cantonment   areas   at   the   time   of   the<\/p>\n
             passing  of the decrees or the orders. We, therefore, hold that
\n             the   decree     obtained   by   the   respondents   is   saved   by   the
\n             provisions   of     Section   3,   sub-section   (4)   of   the   Cantonment
\n             (Extension of Rent Control Laws) Act of 1957, as amended by
\n             Act 22 of 1972.”\n<\/p><\/blockquote>\n
    It is submitted by Mr. Shah that the amendment application pressed into service by<\/p>\n
    the appellants is required to be granted and the appellants may be permitted to<\/p>\n
                                                                        ::: Downloaded on – 09\/06\/2013 14:15:48 :::<\/span>
\n                                                        -18-<\/span><\/p>\n
    amend the plaint by taking specific prayer regarding handing over the possession.\n<\/p>\n
    Mr. Shah has further submitted that since the defendant has failed to lead  any<\/p>\n
    evidence about old grant, and since in view of the decree of possession passed by<\/p>\n
    the trial Court, the  suit is required to be decreed  and it  should be held that the<\/p>\n
    admission   certificate   is   null   and   void   and   not   binding   upon   the   plaintiff.     It   is<\/p>\n
    submitted that the  so called  amount of compensation  was taken by the plaintiff<\/p>\n
    under protest. Considering the aforesaid, Mr. Shah has submitted that the decree<\/p>\n
    of the trial Court is required to be set aside and the suit of the plaintiff is required to<\/p>\n
    be decreed.   Mr. Shah has submitted that the plaintiff has paid full court fees.\n<\/p>\n
    16.            Mr.   Rajguru,   learned   counsel   appearing   for   the   respondents,   on   the<\/p>\n
    other hand,  submitted that in Cantonment area all lands belonged to Secretary of<\/p>\n
    State.  It  is submitted that the  plaintiff was permitted only to construct building and<\/p>\n
    the land all throughout belonged to the defendant.  According to him,  permission to<\/p>\n
    occupy ground  within the limits of cantonment confers no proprietary rights on the<\/p>\n
    occupant. It is submitted that the plaintiff having signed the admission certificate,<\/p>\n
    cannot   take   contrary   stand.     It   is   submitted   that   the   plaintiff   has   taken   away<\/p>\n
    compensation   regarding   the   constructed   portion   ,    as   on   the   land   belonging   to<\/p>\n
    respondent, the plaintiff was permitted to construct buildings and other construction<\/p>\n
    and, therefore,  she  was the owner of only constructed portion and the ownership<\/p>\n
    of   the   land   always   remain   with   the     defendant.   It   is   submitted   that   the  Plaintiff<\/p>\n
                                                                       ::: Downloaded on – 09\/06\/2013 14:15:48 :::<\/span>
\n                                                     -19-<\/span><\/p>\n
    having given admission certificate as far back as in 1965 cannot file a suit in the<\/p>\n
    year 1983, which on the face of it is hopelessly time barred.  It is submitted that the<\/p>\n
    plaintiff is now estopped from changing her stand.    It is submitted that the plaintiff<\/p>\n
    was never sold the land and she was having ownership rights only in connection<\/p>\n
    with the bungalow and other construction.  It is submitted that  survey No. 404  is in<\/p>\n
    Pune Cantonment area. He has relied upon Exhibit-68 at page 45.   He has also<\/p>\n
    relied upon Exhibits-31 to 34.  In this connection he has relied upon the decision in<\/p>\n
    the case of  Raj Singh vs. Union of India,  AIR 1973 Delhi 169.    He has also relied<\/p>\n
    upon  a decision in the case of Union of India and others vs. Harish Chand Anand,<\/a><\/p>\n
    1995 Supp (4) SCC 113.  According to him, there is nothing to show that the land<\/p>\n
    was also sold to the predecessor in title of the plaintiff.   It is submitted that the<\/p>\n
    resumption of the land can also be said to be unilateral.  Strong reliance is placed<\/p>\n
    on Exh. 61 regarding document of 1912.  He has further submitted that so far as<\/p>\n
    the decree for possession passed by the  Rent Court in Civil Suit is concerned, that<\/p>\n
    said decree was set aside by the Appellate Court and, therefore, now it cannot be<\/p>\n
    said that the said decree still subsists.   Mr. Rajguru also submitted  that the sale<\/p>\n
    deed   in   favour   of     late   Cawasjee     Dhunjeeshaw   was   subject   to   rules   and<\/p>\n
    regulations of Government of India and the Cantonment Committee  in respect of<\/p>\n
    the   tenure   of   the   cantonment   lands   and   as   per   the   judgment   in   the   case   of<\/p>\n
    Secretary of State for India in Council    vs.    Satish Chandra  Sen,  reported in LVII<\/p>\n
                                                                  ::: Downloaded on – 09\/06\/2013 14:15:48 :::<\/span>
\n                                                      -20-<\/span><\/p>\n
    Indian Appeals, all the lands in cantonment were acquired for Military purpose but<\/p>\n
    private individuals were allowed to erect houses on various plots, subject to certain<\/p>\n
    restrictions.   It is also submitted by Mr. Rajguru that there is also  reference in the<\/p>\n
    indenture  of trust dated 24th March, 1932 executed by late Cawasjee Dhunjeeshaw<\/p>\n
    wherein  it is mentioned that the settlor was having permanent occupancy rights in<\/p>\n
    the land belonging to the Government.   It is further submitted that by registered<\/p>\n
    indenture   dated   23rd  June,   1930,   late   Cawasjee     Dhunjeeshaw   leased   out   the<\/p>\n
    dwelling   house   to   the   Secretary   of   State   for   India   for   five   years     which   was<\/p>\n
    extended for another period of five years and the Secretary of State for India in<\/p>\n
    Council held the said property on hire as monthly tenants on the same terms and<\/p>\n
    conditions.  After the death of late Cawasjee  Dhunjeeshaw  in February, 1937, his<\/p>\n
    widow late Mrs. Bachubai  Cawasjee was given life interest and after her death, her<\/p>\n
    daughter i.e. the original appellant was given full interest in the said property.   It is<\/p>\n
    also submitted that as per gazette notification of 1828 notifying the limits of Pune<\/p>\n
    Cantonment   ,   no   private   land   was   allowed   to   exist     within   the   limits   of   Pune<\/p>\n
    Cantonment area.\n<\/p>\n
    17.           It is  also submitted that so far as the ratio in the case of Jairam Tyagi<\/p>\n
    (supra)  is concerned, the same is applicable only when there is an existing decree<\/p>\n
    in favour of the plaintiff.  In the instant case, when there is no decree as the same<\/p>\n
                                                                    ::: Downloaded on – 09\/06\/2013 14:15:48 :::<\/span>
\n                                                        -21-<\/span><\/p>\n
    was set aside by the Appellate  Court. The said judgment has no relevance and the<\/p>\n
    Appellate   Court   order   becomes   final   by   which   the   decree   is   set   aside.   Even<\/p>\n
    subsequently, the suit was also dismissed for default. Therefore, the plaintiff cannot<\/p>\n
    rely on the aforesaid original decree of the trial Court which is set aside by the<\/p>\n
    Appellate   Court.     It   is   submitted   that   when   the   decree   was   set   aside   by   the<\/p>\n
    Appellate Court and the plaint was returned for presentation to the proper Court, at<\/p>\n
    that stage the defendant had already taken the plea about resumption of the land.\n<\/p>\n
    It is submitted that under Article 58 of the Limitation Act, suit filed after three years<\/p>\n
    is   not   maintainable.     It   is   submitted   that   even   prayer   for   possession   is   not<\/p>\n
    maintainable   as   the   same   is   also   barred   by   limitation   as   per   Article   64.     It   is<\/p>\n
    submitted that the possession was  taken in 1972. The suit was required to be filed<\/p>\n
    within three years from that date.  It is submitted that the resumption was made in<\/p>\n
    1970 and such resumption  could have been challenged only within three years.\n<\/p>\n
    18.            We have heard the learned counsel appearing for the parties at great<\/p>\n
    length. We have also perused and considered the oral and documentary evidence<\/p>\n
    on record. We have also considered the various judgments cited at the Bar by both<\/p>\n
    sides   and   relevant   provisions   of   law.     We   have   also   gone   through   the   written<\/p>\n
    submissions submitted by the learned counsel appearing for the parties.\n<\/p>\n
                                                                       ::: Downloaded on – 09\/06\/2013 14:15:48 :::<\/span>
\n                                                       -22-<\/span><\/p>\n
    19.           So   far   as   the   first   argument   of   Mr.   Shah   regarding   decree   for<\/p>\n
    possession passed by the trial Court in RCS No. 946 of 1965 is concerned, it is<\/p>\n
    required   to     be   noted   that   the  trial  Court   decreed   the   suit   on   29th    June,   1969<\/p>\n
    against which an appeal was preferred by the respondent. The operative part of the<\/p>\n
    order of the Appellate Court in the aforesaid Appeal reads as under:\n<\/p>\n
             “The appeal is allowed. The decree of the trial Court is set aside.\n<\/p><\/blockquote>\n
             The   plaint     be   returned   to   the   plaintiffs-respondents   for
\n             presentation to the property court under the provisions of Order VII<\/p>\n
             Rule 10 of the Code of Civil Procedure. The injunction granted as
\n             per Exh. 19 stands vacated. Costs to be the costs in the cause.”\n<\/p><\/blockquote>\n
    The plaint was thereafter transferred to the regular Court. It is not in dispute that<\/p>\n
    thereafter the aforesaid suit was dismissed for default.  There is nothing on record<\/p>\n
    to   show   that   the   suit   was   thereafter   restored   to  file.   Considering   the   aforesaid<\/p>\n
    factual aspect, which is not in dispute, in our view, it is not possible for us to accept<\/p>\n
    the argument of Mr. Shah that there is also a decree for possession passed by the<\/p>\n
    competent Court in favour of the plaintiff.   It is required to be noted that the decree<\/p>\n
    passed under the Rent Act having been set aside by the Appellate Court, it cannot<\/p>\n
    be said that any   decree was subsisting in favour of the plaintiff which can be<\/p>\n
    saved  as   per the   judgment  of the  Supreme   Court   in  the  case   of   Jairam  Tyagi<\/p>\n
    (supra).   Even if the Appellate Court on wrong premises sets aside the decree,<\/p>\n
                                                                     ::: Downloaded on – 09\/06\/2013 14:15:48 :::<\/span>
\n                                                      -23-<\/span><\/p>\n
    then also unless the order of the Appellate Court is set aside by higher forum, the<\/p>\n
    order of the Appellate Court is binding between the parties and the net result of the<\/p>\n
    same is that there was no decree in favour of the plaintiff  which could have been<\/p>\n
    executed.    In that   view  of   the  matter,   it  cannot  be  said  that there   was  a   valid<\/p>\n
    decree in favour of the plaintiff which could have been saved.  Once the decree of<\/p>\n
    the trial Court is set aside by the Appellate Court, that decree cannot remain to be<\/p>\n
    enforceable decree as there is no decree at all and the fact that subsequently the<\/p>\n
    suit was thereafter dismissed for default, and the original suit filed by the plaintiff<\/p>\n
    no longer survives,   there can never be said to be any decree in favour of the<\/p>\n
    plaintiff.  In that view of the matter, it is not possible for us to accept the say of Mr.<\/p>\n
    Shah that there is already a decree for possession which exists in favour of the<\/p>\n
    plaintiff.    Under these circumstances, since there was no decree in existence in<\/p>\n
    favour   of   the   plaintiff,   there   is   no   question   of   saving   the     said   decree   and,<\/p>\n
    therefore, the said judgment of the Supreme Court is not applicable in the present<\/p>\n
    case.\n<\/p>\n
    20.             Mr. Shah thereafter relied upon various judgments on the aspect of<\/p>\n
    denial of title.  It is submitted by Mr. Shah  that it was not open for the defendant to<\/p>\n
    deny the title of the plaintiff.   In the instant case, the plaintiff has filed the suit<\/p>\n
    based   on   title.     According   to   the   defendant,   the   plaintiff   was   not   having   any<\/p>\n
                                                                    ::: Downloaded on – 09\/06\/2013 14:15:48 :::<\/span>
\n                                                     -24-<\/span><\/p>\n
    ownership rights on the land in question.  The suit of the plaintiff is not based for<\/p>\n
    getting decree for eviction against the tenant on the ground of denial of title   but<\/p>\n
    the suit is for declaration wherein the Plaintiff has claimed declaration of her rights.\n<\/p>\n
    When both sides have led evidence in connection with the proof of title, the only<\/p>\n
    issue which the trial Court was required to decide was the title of the plaintiff over<\/p>\n
    the  suit land.\n<\/p>\n
    21.           The  real question which requires consideration is whether the plaintiff<\/p>\n
    can be said to have proved her title over the suit property as prayed for in the suit.\n<\/p>\n
    In this connection, the plaintiff has examined her Power of Attorney holder i.e. son<\/p>\n
    of the  plaintiff Bahiram Nanabhai Jeejeebhoy,  at Exh.24. The said witness has<\/p>\n
    stated   that   the   plaintiff   is   his   mother.     He   has   deposed   that   the   suit   land<\/p>\n
    admeasures  1 acre and 30 gunthas.  On the  said land, there is a dwelling house,<\/p>\n
    a garage, a servant’
\n                       s quarter as well as cooking house which is separate.  There is<\/p>\n
    also   a   structure   upon   the   suit   land.   He   has   stated   that   his   grandfather   viz.\n<\/p>\n
    Cawasjee   Dhanji   Shah   had   purchased   the   suit   property   initially   from   a   person<\/p>\n
    namely one Mr. Irani in 1912.   Thereafter his grand father had occupied the suit<\/p>\n
    property and in the year 1930 he had given it to  the defendant under registered<\/p>\n
    lease   deed  dated   23rd  June,  1930.  The  period   of  lease was  five  years and  on<\/p>\n
    expiry of this lease, it had been renewed for further five years under a registered<\/p>\n
    lease deed dated 18th  July, 1935.     The said witness has stated that in the year<\/p>\n
                                                                   ::: Downloaded on – 09\/06\/2013 14:15:48 :::<\/span>
\n                                                     -25-<\/span><\/p>\n
    1932 his grand father had made a settlement  deed whereby he gave a life interest<\/p>\n
    regarding suit property to his wife and after the death of his   wife,   the property<\/p>\n
    devolved  upon the plaintiff absolutely and accordingly the plaintiff has become the<\/p>\n
    absolute owner of the suit property. The defendant was paying rent in respect of<\/p>\n
    the suit  property to his grand mother.  It is stated by the said witness that the suit<\/p>\n
    property was never subjected to any grant or to any old grant.   The said witness<\/p>\n
    has  deposed that he had filed a suit bearing No. 946 of 1965 for possession and<\/p>\n
    money claim.   The said suit was decreed in their favour and that in appeal the<\/p>\n
    Appellate Court directed the plaintiff to present the suit in proper Court. The said<\/p>\n
    witness   has   further   stated   that   on     23rd  February,   1965   the   plaintiff   made   an<\/p>\n
    application to the Cantonment Board, Pune for   transferring the suit property   in<\/p>\n
    her name due to death of her mother and at that time the Military Estate Officer<\/p>\n
    had   made   a   condition   for   transfer   of   property   in   her   name,   if   she   signs   an<\/p>\n
    admission   certificate.     The   said   witness   has   stated   that   the   plaintiff     did   not<\/p>\n
    understand   the   implications   of   the   admission   certificate   dated   24th  April,   1965.\n<\/p>\n
    The said witness has further stated that the admission certificate obtained by the<\/p>\n
    Military Estate Officer  was illegal.   The said witness has also stated that  Civil Suit<\/p>\n
    No. 599  of 1974 was dismissed for default and that an application was preferred<\/p>\n
    for restoration  being  Application No. 691 of 1979 and as per his knowledge, the<\/p>\n
    said application had not been disposed of.  In paragraph  9 of his evidence, he has<\/p>\n
                                                                    ::: Downloaded on – 09\/06\/2013 14:15:48 :::<\/span>
\n                                                    -26-<\/span><\/p>\n
    stated that in the year 1982 they came to know about  the judgment of the Bombay<\/p>\n
    High   Court   regarding   old   grant  in   the  case  of   one   Anklesaria.     He   has  further<\/p>\n
    stated that in  that case the Bombay High Court has ruled that the old grant was<\/p>\n
    not in existence and any resumption   on the basis of an old grant automatically<\/p>\n
    become  void. The said witness has stated that the Government had not produced<\/p>\n
    any old grant in the   said case.   The said witness   has further deposed that the<\/p>\n
    properties did  not vest lawfully with the defendant.  In the cross-examination, the<\/p>\n
    witness has stated that  it is correct to say that the father of the plaintiff is not an<\/p>\n
    original allottee in respect of the suit property.   The said witness has also stated<\/p>\n
    that he did not know if by a Gazette of 1827 the individual rights in private lands<\/p>\n
    had been extinguished.       The witness denied the suggestion   that the father of<\/p>\n
    plaintiff had purchased the suit property having the knowledge that he had only<\/p>\n
    occupancy rights in the suit property.   He has stated that the father of the plaintiff<\/p>\n
    did not obtain any permission from the Central Government for the sale deed.   In<\/p>\n
    para   15   the   witness   has   admitted   the   fact   that   his   mother   had   accepted   the<\/p>\n
    amount of compensation from the Government under protest.\n<\/p>\n
    22.           At this stage, reference is required to be made to Exhibit Nos. 31 to 35.\n<\/p>\n
    Exhibit-31 is a     letter written   by the Plaintiff   addressed to the Military Estate<\/p>\n
    Officer regarding transfer of suit bungalow in the name of the plaintiff.  It has been<\/p>\n
                                                                  ::: Downloaded on – 09\/06\/2013 14:15:48 :::<\/span>
\n                                                         -27-<\/span><\/p>\n
    stated   in   the   said   letter   that   the   plaintiff   is   willing   to   abide   by   the   terms   and<\/p>\n
    conditions of the grant in respect of the  property and will abide by the terms and<\/p>\n
    conditions of the Cantonment tenure in respect of the said property.  Exhibit-32 is<\/p>\n
    also a letter admittedly written by the plaintiff regarding transfer of suit bungalow in<\/p>\n
    the name of the plaintiff.   In the said letter, the plaintiff enclosed affidavits of  her<\/p>\n
    sisters  who have given no objection to transfer the said property  in the name of<\/p>\n
    the plaintiff.  Exhibits-32 to 35  are the affidavits sworn by the sisters of the plaintiff.\n<\/p>\n
    The   mutation   entry   dated   13th  May,   1965   showing   the   name   of   the     occupant<\/p>\n
    plaintiff as the holder of occupancy right of the property is placed on record at<\/p>\n
    Exhibit-36.   Exhibit-56 is a copy of Government General Order dated 6th January,<\/p>\n
    1827, which reads as under.\n<\/p>\n
             “The Honourable the Governor in Council thinks it necessary<\/p>\n
             to explain in General Order that any permission which officers
\n             not provided with public quarters may receive to erect houses<\/p>\n
             on ground within a fortress or military cantonment confers on
\n             them no right of property whatever in the ground allotted them
\n             for   that   purpose,   which   continues   the   property   of   the   State,
\n             and resumable at the pleasure of Government.”\n<\/p><\/blockquote>\n
    23.            From the said order, it is irrefutable that the land which belongs to the<\/p>\n
    Government about which any grant is allotted to any person, no right of property<\/p>\n
    vests in those persons and the land continues as the property of the State and<\/p>\n
    resumable at the pleasure of the Government.   So far as Exhibit-61 is concerned,<\/p>\n
                                                                        ::: Downloaded on – 09\/06\/2013 14:15:48 :::<\/span>
\n                                                    -28-<\/span><\/p>\n
    the same is a copy of the registered deed of conveyance dated 25th October, 1912<\/p>\n
    in respect of the suit property executed by one Khodadad Rustom Irani in favour of<\/p>\n
    father of the plaintiff.  Witness No.1  in his cross-examination has admitted that the<\/p>\n
    plaintiff’s
\n               father did not obtain any permission from the Central Government  for the<\/p>\n
    said deed of conveyance. There is no document on record about the exclusive title<\/p>\n
    by Khodadad Rustom Irani  in respect of the suit property.\n<\/p>\n
    24.           Considering the documentary evidence on record, in our view, the trial<\/p>\n
    Court has rightly found that the plaintiff has failed to establish the title over the suit<\/p>\n
    property.  Exhibit-68  is the certified true copy of the register of Government land<\/p>\n
    held as per Section 271 of the Cantonment Code, 1912. In the remarks column of<\/p>\n
    the   said   register,   it   has   been   stated   that   the   suit   bungalow   and   some   other<\/p>\n
    property had been leased to the Secretary of State for five years from 20th  April,<\/p>\n
    1930 at the rent of Rs. 745\/- p.m.  It is required to be noted that the plaintiff has not<\/p>\n
    led any evidence to prove the title over the suit property, though the initial burden<\/p>\n
    lies on the plaintiff to prove the same.\n<\/p>\n
    25.           At this stage it is necessary to refer the definition of “lessee” appearing<\/p>\n
    in the Cantonment Code, 1912. The same reads thus:\n<\/p>\n
             “”lessee” means a person who has been granted  permission,
\n             whether   before   or   after   the   commencement   of   this   Code,   to
\n             occupy, for the purposes of a building site, land belonging to the<\/p>\n
                                                                  ::: Downloaded on – 09\/06\/2013 14:15:48 :::<\/span>
\n                                                     -29-<\/span><\/p>\n
             Government in a cantonment, and includes the successors in<\/p>\n
             interest of a lease.”\n<\/p><\/blockquote>\n
    26.           We are not impressed by the argument of Mr. Shah  that the defendant<\/p>\n
    has   failed   to   lead   any   evidence   to   show   that   the   property   was   given   to   the<\/p>\n
    predecessor in title  of the Plaintiff on lease.   The plaintiff and her predecessor<\/p>\n
    were merely holders of the occupancy right in respect of the suit land  which was<\/p>\n
    held by the predecessor-in-title of the plaintiff in terms of old grant  of 1827.  So far<\/p>\n
    as the judgment of the Bombay High Court in Anklesaria’s
\n                                                             case is concerned, the<\/p>\n
    Supreme Court has held as under:\n<\/p>\n
             “These transferred cases are remitted back  to the High Court for
\n             disposal, keeping in view the following directions.\n<\/p><\/blockquote>\n
             1.   While considering  the merit  of the case the High Court shall<\/p>\n
             not place any reliance upon the Division Bench judgment of the
\n             High   Court   consisting   of   D.M.   Rege   and   R.A.   Jahagirdar,   JJ.\n<\/p><\/blockquote>\n
             Rendered   in   Special   Civil   Application   No.   1286\/72   decided   on
\n             5\/6th  February, 1979 against which appeals are pending in this
\n             Court.\n<\/p><\/blockquote>\n
             2.   While considering the case, if the High Court finds that the
\n             trial court or the first appellate court has placed reliance or made
\n             any reference to the aforesaid judgment of the Division Bench, it
\n             shall ignore that judgment, to   that extent, and the High Court
\n             shall   decide   the   matter   afresh   in   accordance   with   law   without<\/p>\n
             taking   into   consideration   or   being   influenced   by   the   aforesaid
\n             judgment of the Division Bench.”\n<\/p><\/blockquote>\n
                                                                   ::: Downloaded on – 09\/06\/2013 14:15:49 :::<\/span>
\n                                                         -30-<\/span><\/p>\n
    In view of   the direction contained in para 2 above, the Supreme Court on 25th<\/p>\n
    March, 1992  disposed of the appeals on the ground that the same have become<\/p>\n
    infructuous.\n<\/p>\n
    27.            Mr. Shah has relied on the judgment of the Supreme Court in the case<\/p>\n
    of  Union of India vs. Purushotam Dass Tandon,<\/a>     1986 Supp. SCC 720. He has<\/p>\n
    submitted  that the burden is on the Union of India to establish its title by producing<\/p>\n
    the particular grant relating to the land ought to be resumed.  Mr. Shah has also<\/p>\n
    invited our attention to the various provisions of the Cantonments Act, 1924.  He<\/p>\n
    submitted that under the Cantonment laws, a  Cantonment  Authority such as the<\/p>\n
    Board is in the nature of a  Municipality and is essentially a local self-Government<\/p>\n
    body and that the Cantonments have from time to time extended the limits which<\/p>\n
    fall within the   Cantonment area.   To support the case of the plaintiff,   Mr. Shah<\/p>\n
    has   invited   our   attention   to   the   provisions   of   Sections   3,   4   ,  5   of   the   Act   and<\/p>\n
    submitted that there can be private property within the limits of the Cantonment<\/p>\n
    area.\n<\/p>\n
    28.            Mr. Rajguru, learned counsel for the respondent has relied upon the<\/p>\n
    decision in the case of Kaikhusru Aderji Ghaswala and others  vs. Secretary of State<\/a><\/p>\n
    for India in Council,  Vol. 38 Indian Appeals L.R. Page 204,   wherein it has been<\/p>\n
                                                                        ::: Downloaded on – 09\/06\/2013 14:15:49 :::<\/span>
\n                                                      -31-<\/span><\/p>\n
    held that on a consideration of the Bombay Regulations applicable to cantonments<\/p>\n
    from the year 1819, that the military authorities held the whole cantonment area in<\/p>\n
    full proprietary right.   In the said case the appellants were mere licensees of the<\/p>\n
    land in suit, which was not shewn to differ in its tenure and terms from the rest of<\/p>\n
    the cantonment areas.   It was held that the houses or bungalows  built by them<\/p>\n
    thereon were subject to expropriation at a price to be fixed by the said authorities.\n<\/p>\n
    29.           In the case of Secretary of State for India in Council  vs.  Satish Chandra<\/p>\n
    Sen,    Vol.   LVII   Indian   Appeals   339,   it   has   been   held   that   it   is   not   necessary<\/p>\n
    implication   from   the   Bengal   Cantonment   Rules,   1836,   that   all   land     within   the<\/p>\n
    cantonment  in Bengal  is Government property but long possession by a private<\/p>\n
    person is not by itself sufficient to establish his title to land so situate.    It was<\/p>\n
    further   held   that   the   respondent   in   the   said   case   though   entitled   to   the<\/p>\n
    compensation   awarded   in   respect   of   the   house,   was   not   entitled   to   the<\/p>\n
    compensation awarded for the land, as he had not established his title thereto.\n<\/p>\n
    30.           In the case of  Raj Singh (supra)   it has been held that the  regulations<\/p>\n
    contained   in   Order   No.   179   of   1836   regarding   the   grant   of   lands   situated   in<\/p>\n
    cantonment areas are provisions of a statutory nature which were continued by the<\/p>\n
                                                                     ::: Downloaded on – 09\/06\/2013 14:15:49 :::<\/span>
\n                                                    -32-<\/span><\/p>\n
    Government of India Act from 1859 to 1935 on the principle embodied in Section<\/p>\n
    24 of the General Clauses Act, 897.\n<\/p>\n
    31.         In   the   case   of  Chief   Executive   Officer   vs.   Surendra   Kumar   Vakil   and<\/p>\n
    others<\/a>,  AIR 1999 SC 2294, it has been held by the Supreme Court thus:\n<\/p>\n
           “17.   The respondents drew our attention to a decision of this<\/p>\n
           Court in the case of Union of India v. Purshotam Dass Tandon,<\/a>
\n           1986   (Supp)   SCC   720,   where   this   Court   observed   that   the<\/p>\n
           Union of India had made no effort to establish its title and the
\n           grant had not been produced.   Hence the terms of the grant or
\n           the date of the grant were not known. Therefore, the Union of<\/p>\n
           India   could   not   succeed  in  its  contention   that   the   land   in   the
\n           cantonment was held on old grant basis. In the present case,
\n           however,   apart   from   the   requirements   of   Order   No.   170   of
\n           Governor   General   in   Council,   1836,   the   general   land   register
\n           maintained under the Cantonment  Land Administration Rules of<\/p>\n
           1925 has been produced which supports the contention of the
\n           appellants   that   the   land   is   held   on   old   grant   basis.     The<\/p>\n
           appellants   have   also   led   evidence   to   show   that   the   file
\n           containing grant in respect of the said property, is not available
\n           with them because it has been stolen in the year 1985.   The
\n           respondents   on   the   other   hand   have   not   produced   any<\/p>\n
           document   of   title   pertaining   to   the   said   land   or   showing   the
\n           nature of the rights of the respondents over the said land except
\n           the sale deeds referred to earlier.  The stand of the respondents
\n           relating to their rights over the said land has changed from time
\n           to time.  In the sale deeds executed by the vendees in favour of<\/p>\n
           the respondents, the land is described as leasehold cantonment
\n           land.   This   was   later   changed   by   the   respondents   in   the
\n           amendment   deeds     to   old   grant   land.     In     the   suit,   the
\n           respondents   have   contended   that   they   have   become   the
\n           absolute owners of the  said land. These bare assertions do not<\/p>\n
                                                                  ::: Downloaded on – 09\/06\/2013 14:15:49 :::<\/span>
\n                                                  -33-<\/span><\/p>\n
           carry  any conviction. Had there been any conveyance  or lease<\/p>\n
           in   respect   of   the     said   lands   executed   in   favour   of   the
\n           respondents or their  predecessor  in title, such conveyance or
\n           lease   should   have   come   from   their   custody.       There   is,<\/p>\n
           therefore, no document before the Court which would show that
\n           the respondents were the absolute owners of the said land as
\n           now   contended   by   them.     The   Regulations     as   well   as   the
\n           general   land   registers,   on   the   other   hand,   which   are   old<\/p>\n
           documents maintained in the regular course and coming from
\n           proper custody, clearly indicate that the land is held on old grant
\n           basis. This is, therefore, not a case where the appellants had
\n           not produced any evidence in support of their contention that
\n           the land in the cantonment area was held on old grant basis by<\/p>\n
           Mukherjee.\n<\/p><\/blockquote>\n
           18.    The Respondents have drawn our attention to the decision
\n           in the case of Krishnan v. Kurukshetra<\/a> niversity, Kurukshetra,
\n           AIR   1976   SC   376,   for   showing   that   any   admission   made   by<\/p>\n
           them   in   ignorance   of   legal   rights   cannot   bind   them.     This
\n           judgment   does   not   help   the   respondents   because   the   fact
\n           remains that the respondents have taken a changing stand in
\n           relation to the nature of their rights over the disputed land.  The
\n           admissions, at least, indicate that the respondents were, at the<\/p>\n
           material time, not sure about the exact nature of their right over
\n           the   said   land.   Hence   they   have   at   one   stage   described   the<\/p>\n
           nature of their rights as leasehold, at another stage as old grant
\n           and at a third stage they have retracted from their admissions
\n           that the land was old grant.   The last deed merely states that
\n           they have the same rights as their vendees had in the said land.\n<\/p><\/blockquote>\n
           Looking to the nature of evidence, therefore, which was led in
\n           the present case, the  High Court was not justified in coming to
\n           the conclusion that the land was not held on old grant basis by
\n           Mukherjee.”\n<\/p><\/blockquote>\n
    According to the learned counsel for the respondent, the only document of grant is<\/p>\n
    document of  1927 and there is no separate grant. The plaintiff has failed to prove<\/p>\n
                                                               ::: Downloaded on – 09\/06\/2013 14:15:49 :::<\/span>
\n                                                       -34-<\/span><\/p>\n
    that the property never belonged to  Government and that the respondents are not<\/p>\n
    entitled to resume the said land.\n<\/p>\n
    32.           It   is   required   to   be   noted   that   in   the   original   plaint   no   prayer   for<\/p>\n
    possession has been made at all and it is not in dispute that the possession was<\/p>\n
    taken away in the year 1972. The plaint has  not filed within three years from the<\/p>\n
    date of dispossession.  The resumption  notice is of the year 1970. The suit is not<\/p>\n
    filed within three years either from 1970 or even from 1972 when actual possession<\/p>\n
    was taken. Under these circumstances, the Plaintiff with an open eye and with the<\/p>\n
    full knowledge has given the admission certificate on 24th  April, 1965.   As stated<\/p>\n
    above, though the resumption notice was issued in 1970 and possession was taken<\/p>\n
    in   1972,   the   suit   was   filed   in   the   year   1983.   Apart   from   that,   after   taking<\/p>\n
    compensation, the plaintiff has also asked for higher compensation with a request<\/p>\n
    to refer the matter to Arbitrator.  Under these circumstances, the plaintiff has failed<\/p>\n
    to prove  her title over the suit property. The plaintiff has merely taken a chance in<\/p>\n
    view of the judgment of this Court in Anklesaria’s
\n                                                       case which judgement has been<\/p>\n
    set aside by the Supreme Court.  Even otherwise, the period of limitation cannot be<\/p>\n
    extended simply  on the  ground that subsequently the plaintiff came to know about<\/p>\n
    the Division Bench Judgment of this case in Anklesaria’
\n                                                          s case.  Even otherwise, the<\/p>\n
    plaintiff’
\n             s   rights   were   already   determined   when   the   plaintiff   accepted   the<\/p>\n
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\n                                                      -35-<\/span><\/p>\n
    compensation.\n<\/p>\n
    33.           Considering the evidence  on  record,  we are of the    opinion  that the<\/p>\n
    plaintiff has failed to prove her title over the land. The predecessor in title of the<\/p>\n
    plaintiff   was   given   only   occupancy   right   by   way   of   grant   and   the   plaintiff   had<\/p>\n
    constructed a superstructure over the land in question for which the plaintiff was<\/p>\n
    offered   compensation.     The   plaintiff   had   requested   for   higher   compensation   for<\/p>\n
    which   even   a   committee   was   also   constituted.     Chapter   XX   of   the   Cantonment<\/p>\n
    Code,   1912,   deals   with   the   Committees   of   Arbitration.     Sections   259   and   260<\/p>\n
    thereof reads thus:\n<\/p>\n
             “259. For the purpose of determining the amount of monthly rent to
\n             be paid  for a house, every committee of arbitration  shall estimate,
\n             as   nearly   as   may   be,   the     market   value   of   all   buildings   and<\/p>\n
             authorized additions; and the amount of rent determined upon shall
\n             be such percentage  on such market  value  as the Committee of<\/p>\n
             arbitration   may   think   reasonable   with   reference   to   the
\n             circumstances of the neighbourhood and the period of time and
\n             season fro which the house is likely to be occupied during the year,
\n             and shall include the taxes (if any) levied upon the land, or such<\/p>\n
             proportion thereof  as the Committee of arbitration may find to be
\n             customarily   paid   for   the   time   being   in   the   neighbourhood   by
\n             tenants.\n<\/p><\/blockquote>\n
             260.   (1) The decision of every committee of arbitration shall  be<\/p>\n
             determined by the majority of the votes taken at a meeting at which
\n             all the members are present.\n<\/p><\/blockquote>\n
             (2)  The decision of every committee of arbitration shall be final.”\n<\/p><\/blockquote>\n
                                                                    ::: Downloaded on – 09\/06\/2013 14:15:49 :::<\/span>
\n                                                   -36-<\/span><\/p>\n
    According to the Plaintiff, the Arbitration Committee had not yet determined the<\/p>\n
    plaintiff’s
\n               claim for additional compensation.\n<\/p>\n
    34.         The plaintiff had  signed  the admission certificate on 24th April, 1965.\n<\/p>\n
    The plaintiff at the relevant time was not bothered to challenge   the admission<\/p>\n
    certificate. The admission certificate executed by the plaintiff  reads as under:\n<\/p>\n
            ” I, undersigned Mrs. Dosibai Nanabhoy  – Jeejeebhoy residing at<\/p>\n
            1, Church Road, Poona, owner of bungalow No. 11,GLR  Sy. No.
\n            40A ,Staveley Road, Poona Cantonment, Sub-District and Taluka<\/p>\n
            Haveli, District Poona bounded on the North by G.L.R. Sy. No.
\n            403 on the South by G.L.R. Sy. No. 405 on the East by G.L.R. Sy.\n<\/p><\/blockquote>\n
            No.   275   and   on   the   West   by   G.L.R.   Sy.   No.   400     do   hereby<\/p>\n
            subscribe   to   the   conditions   (reproduced   below)   of   the   original
\n            grant pertaining to the site thereof and this agreement shall be
\n            binding on me, as well as my heirs, successors and assigned as
\n            the   case   may   be,   whoever   shall   be   in   possession   of   the   said
\n            property. <\/p><\/blockquote>\n
\n       \n\n\n                                           CONDITIONS\n            1.       Permission   to   occupy   ground   in   a     Military   Cantonment\n    \n\n\n\n<\/pre>\n
            confers no propriety right.  It is continues the property of the state
\n            and   resumable   at   the   pleasure   of   Government,   but   in   all
\n            practicable cases one months’            notice of resumption will be given
\n            and the value of all buildings which may have been authorised to<\/p>\n
            be   erected   thereon,   as   shown   in   the   accompanying   plans,
\n            estimated     by   the   Committee   contemplated   in   General   order.
\n            Separate of 1856, will be paid to the owner.\n<\/p><\/blockquote>\n
            2.    That no buildings are to be erected on the ground other than<\/p>\n
            those   new   existing   and   shown   on   the   attached   plans   and   no
\n            additions   of   alterations   are   to   be   made   thereto   without   the
\n            permission of the officer commanding the station. A sum of Rs. Nil
\n            is being paid to the Central Government as rent per annum.\n<\/p><\/blockquote>\n
                                                                 ::: Downloaded on – 09\/06\/2013 14:15:49 :::<\/span>
\n                                                         -37-<\/span><\/p>\n
                3.         The ground, being the property of Government cannot be<\/p>\n
                sold   by   the   guarantee.   The   building   as   may   be   should   by   (?)
\n                house   owner   with   the   previous   permission   of   the   Office
\n                Commanding the Station.\n<\/p><\/blockquote>\n
                4.              That the military authorities have the power to cancel
\n                the   grant   if   they   found   is   used   for   any   purpose   other   than   for
\n                which it was originally granted.\n<\/p><\/blockquote>\n
                5.       I also agree to abide by any orders and rules that may be
\n                passed regarding tenure of land in cantonment.”\n<\/p><\/blockquote>\n
    35.<\/p>\n
                      Considering   the   aforesaid   aspect   of   the   matter   and   considering   the<\/p>\n
    conduct of the plaintiff, it is crystal clear that the plaintiff, after taking compensation<\/p>\n
    and in fact had asked for higher compensation, has ultimately filed the suit after a<\/p>\n
    great delay in view of the judgment of this Court in Ankalesaria’s case.   On the<\/p>\n
    contrary,  the   plaintiff in  the   meanwhile   had  asked  for    higher  compensation   by<\/p>\n
    asking the defendant to refer the case  to the  Arbitration Committee for the same.\n<\/p>\n
    It   is   required   to   be   noted   that   so   far   as   Anklesaria’
\n                                                                            s   case   is   concerned,   that<\/p>\n
    judgment was set aside by the Supreme Court and, therefore, the ratio in that case<\/p>\n
    is   no   longer   be   made   applicable   to   the   present   case.   Even   otherwise,   even<\/p>\n
    assuming that the aforesaid judgment is applicable,  then also it cannot save the<\/p>\n
    limitation period, as the plaintiff after having accepted the compensation  has filed<\/p>\n
    the   suit   in     the   year   1983   and   the   plaintiff   was   in   the   meanwhile   already<\/p>\n
                                                                        ::: Downloaded on – 09\/06\/2013 14:15:49 :::<\/span>
\n                                                   -38-<\/span><\/p>\n
    dispossessed from the suit property.   The suit of the plaintiff for declaration is,<\/p>\n
    therefore, clearly barred by limitation and now after such a long time after having<\/p>\n
    accepted the amount, the clock cannot be set back. The plaintiff by filing the suit<\/p>\n
    has merely taken chance in view of the law  declared by this Court in Anklesaria’s<\/p>\n
    case. Considering the documentary evidence on record, we are satisfied that the<\/p>\n
    defendant has validly resumed the land and the plaintiff has validly executed the<\/p>\n
    admission   certificate.     Considering   the   totality   of   the   evidence   on   record   and<\/p>\n
    considering the facts of the case, we are of the opinion that the plaintiff is not<\/p>\n
    entitled to any relief in the suit and as pointed out earlier, reference to rent Court<\/p>\n
    suit is absolutely irrelevant   as the decree passed in the said suit is reversed by<\/p>\n
    the Appellate Court by returning the plaint and  thereafter that suit was dismissed<\/p>\n
    for default. When the decree of the rent court is already set aside by the Appellate<\/p>\n
    Court,  whether it   is rightly set aside or not, the fact remains that the decree is set<\/p>\n
    aside and, therefore, there is no enforceable decree which can be said to be in<\/p>\n
    existence in favour of the plaintiff so far as that suit is concerned.   In our view, the<\/p>\n
    judgment of the appellate court in that case is binding between the parties, unless<\/p>\n
    it is reversed by the Higher Court. Simply because in some other proceedings (i.e.\n<\/p>\n
    in Anklesaria’
\n                 s case on which strong reliance has been placed by the plaintiff), a<\/p>\n
    different view is taken, that itself cannot take the case of the plaintiff any further.\n<\/p>\n
    At the cost of repetition,  in our opinion, the judgment of the appellate court in the<\/p>\n
                                                                 ::: Downloaded on – 09\/06\/2013 14:15:49 :::<\/span>
\n                                                         -39-<\/span><\/p>\n
    rent case has become final and has attained the finality.    The suit of the plaintiff<\/p>\n
    is,   therefore,   not   sustainable   at   all  and,   in   our   view,   the   trial   Court   has   rightly<\/p>\n
    appreciated   the   evidence   on   record   and   has     reached   the   conclusion   that   the<\/p>\n
    plaintiff has failed to prove that land was allotted  to her and the plaintiff was owner<\/p>\n
    of the land in question or that the admission certificate is nullity. We, therefore, do<\/p>\n
    not find any substance in this appeal. The appeal is accordingly dismissed with<\/p>\n
    costs.\n<\/p>\n
    36.<\/p>\n
                     So  far as the amendment application being Civil Application No. 5207<\/p>\n
    of 2008 preferred by the appellants herein is concerned, since on merits we found<\/p>\n
    that the plaintiff has failed to prove her case regarding proving her title over the<\/p>\n
    suit property,  it  is not necessary for us to consider the prayer for amendment of<\/p>\n
    the   plaint.   However,   even   otherwise,       so   far   as   the   prayer   for   possession   is<\/p>\n
    concerned, the same is,  on the face of it,  barred by limitation as the plaintiff was<\/p>\n
    dispossessed in 1972 and the amendment application is filed in 2008,  at the time<\/p>\n
    of   final   hearing.     The   Civil   Application   is   nothing   but   an   afterthought   and<\/p>\n
    considering the facts and circumstances of the case,   in our view, the amendment<\/p>\n
    as sought for in the said Civil application is required to be rejected. The prayer for<\/p>\n
    amendment,   therefore,   is   also   rejected.   The     Civil   Application   is   accordingly<\/p>\n
    rejected.\n<\/p>\n
                                                                        ::: Downloaded on – 09\/06\/2013 14:15:49 :::<\/span>
\n                                                  -40-<\/span><\/p>\n
    37.               The Appeal and the Civil Application are accordingly dismissed.\n<\/p>\n
    38.               In view of the above, no orders are required to be passed in connected<\/p>\n
    Civil Applications viz. Civil Application Nos. 152 of 2003, 475 of 2004 and 5487 of<\/p>\n
    2007 and the same are accordingly disposed of.\n<\/p>\n
                                  ig                     (P.B. MAJMUDAR, J.)\n                                \n                                                         (SMT. R.P. SONDURBALDOTA, J.) \n      \n   \n\n\n\n\n\n\n                                                             ::: Downloaded on - 09\/06\/2013 14:15:49 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Mrs. Dosibai Nanabhoy Jeejeebhoy vs The Union Of India on 20 January, 2009 Bench: P. B. Majmudar, R.P. Sondurbaldota -1- 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-156730","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nMrs. Dosibai Nanabhoy Jeejeebhoy vs The Union Of India on 20 January, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mrs-dosibai-nanabhoy-jeejeebhoy-vs-the-union-of-india-on-20-january-2009-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mrs. Dosibai Nanabhoy Jeejeebhoy vs The Union Of India on 20 January, 2009 - 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