{"id":250565,"date":"2001-02-14T00:00:00","date_gmt":"2001-02-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/smt-chitra-kumari-vs-vs-on-14-february-2001"},"modified":"2018-12-02T17:17:06","modified_gmt":"2018-12-02T11:47:06","slug":"smt-chitra-kumari-vs-vs-on-14-february-2001","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/smt-chitra-kumari-vs-vs-on-14-february-2001","title":{"rendered":"Smt. Chitra Kumari vs Vs on 14 February, 2001"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Smt. Chitra Kumari vs Vs on 14 February, 2001<\/div>\n
Author: S N Variava<\/div>\n
Bench: V.N. Khare, S.N. Variava.<\/div>\n
           CASE NO.:\nAppeal (civil) 917-918  of  1998\nAppeal (civil)\t1265-66\t of  2001\n\n\n\nPETITIONER:\nSMT. CHITRA KUMARI\n\n\tVs.\n\nRESPONDENT:\nVS.\n\nDATE OF JUDGMENT:\t14\/02\/2001\n\nBENCH:\nV.N. Khare & S.N. Variava.\n\n\n\n\nJUDGMENT:\n<\/pre>\n
S. N. VARIAVA, J.\n<\/p>\n
L…I…T…….T…….T…….T…….T…….T…….T..J
\n    Leave  granted in S.L.P.  (C) Nos.\t22436-22437 of 1997.
\nThese  Appeals can be disposed off by this common  Judgment.
\nIt  must be first mentioned that these Appeals were on board
\nalong  with  three other Civil Appeals.\t After arguments  on
\nbehalf\tof  the Appellants had taken place Civil Appeal\t No.
\n3221  of  1991,\t Civil Appeal No.  3503 of  1991  and  Civil
\nAppeal\tNo.   4133 of 1991 were withdrawn by the  Appellants
\ntherein.\n<\/p>\n
    In these Appeals the Appellants have land with bungalows
\nin  Ambala  Cantonment\tarea.  As is being  pointed  out  in
\ngreater\t detail\t hereafter, the cases had, till this  stage,
\nproceeded  on  the footing that the land was granted to\t the
\npredecessors  of  these\t Appellants on\t“old  grant  terms”.
\nThese Appeals therefore are fully covered by the decision of
\nthis  Court  in\t the  case of Chief  Executive\tOfficer\t vs.
\nSurendra Kumar Vakil<\/a> reported in (1999) 3 SCC 555.\n<\/p>\n
    Before  arguments are considered facts in these  Appeals
\nneed  to  be noted.  In Civil Appeal Nos.  917-918  of\t1998
\nNotice\tof Resumption was given on 28th September, 1973.   A
\nSuit  bearing  No.   280 of 1975 was filed in the  Court  of
\nSenior\tSub-Judge,  Ambala, wherein the Order of  resumption
\nwas  challenged.  In the Suit it was, inter alia, averred as
\nfollows:\n<\/p>\n
    “4.\t  That the order of resumption of the above bungalow
\nis  illegal, invalid, malafide, whimsical,  unconstitutional
\nand in-effective against the rights of the plaintiffs, inter
\nalia, on the following grounds:-\n<\/p>\n
(a)\t\txxx\t\txxx\t\txxx<\/p>\n
    (b)\t That in the first instance, it is wholly  incorrect
\nthat  the  site on which the building is standing is an\t old
\ngrant  as  alleged by the defendant No.\t 2.   However,\teven
\nnotice\tof assumption, which the plaintiffs do not admit, in
\nthat  event  too, the Government has no right to resume\t the
\nproperty in the manner as alleged.  ”\n<\/p>\n
    The\t Respondents in the Written Statement contended that
\nthe  land was on old grant terms and that they were entitled
\nto  resume.  The trial Judge, inter alia, raised an issue to
\nthe following effect:\n<\/p>\n
    “1.\t  Whether  the impugned resumption order is  illegal
\nand  in\t operative as alleged in para no.  4 of\t the  plaint
\nOPP.”\n<\/p>\n
    Strictly  speaking a specific and separate Issue on this
\naspect\twould have had to be raised.  Such a specific  Issue
\nwas  not  raised  as, for reasons set out hereafter,  it  is
\nclear that this contention raised in para 4(b) was not being
\npressed.  However, it is arguable that Issue No.  4 as it is
\nframed\tcovered, amongst others, the ground of challenge  on
\nthe  basis that the land on which the building was  standing
\nwas  not on old grant basis.  Parties then led evidence.  In
\nthese Appeals the Appellants have not relied on the evidence
\nled  by them.  But the original record is before the  Court.
\nIt could not be shown to us that Plaintiff\/Appellant led any
\nevidence  claiming ownership of land in question or  denying
\ntitle  of  Respondents.\t Admittedly documents shown  to\t the
\nCourt  were  not  tendered as Exhibits.\t On the\t other\thand
\nRespondents   tendered\tand  got   marked  as  Exhibits,  an
\nadmission  in  writing by Appellants predecessors  that\t the
\nland  was on old grant terms, a copy of GGO No.\t 179 of 12th
\nSeptember,  1836 and the Register of Land Records.   Parties
\nthen  argued  their respective cases.  Ultimately, the\tSuit
\nwas  decreed  by a Judgment dated 27th November, 1978.\t The
\nJudgment sets out the submissions which have been made under
\nthe  aforesaid\tIssue No.  1.  In the submissions,  as\thave
\nbeen  reproduced in the Judgment, there is no submission  to
\nthe  effect that the land was not under the old grant  basis
\nand\/or that the Respondents were not the owners of the land.
\nThe  entire submission, under Issue No.\t 1, has been on\t the
\nbasis  that  the  Appellants had not been heard\t before\t the
\nNotice of Resumption was issued and\/or that compensation had
\nbeen  fixed in an arbitrary manner.  The Court has  accepted
\nthis   submission  and\theld   that,  without  fixation\t  of
\ncompensation  and an opportunity of being heard, an order of
\nresumption  could not be passed.  We have perused the entire
\nJudgment.   In the entire Judgment there is no reference  to
\nany  submission\t that  the land was not under an  old  grant
\nand\/or that the Respondents were not the owners of the land.
\nEven  though,  the  Suit has been decreed  and\ta  permanent
\ninjunction passed in favour of the Appellants, the Court was
\ncareful\t enough\t to  hold  as  follows:\t  “In  view  of\t the
\nevidence,  reasons and findings set out above, a decree\t for
\ndeclaration  is\t passed\t in  favour of\tthe  plaintiffs\t and
\nagainst the defendants with costs, that the resumption order
\nis illegal, void and ineffective and is not binding upon the
\nplaintiffs  and\t a decree for permanent injunction  is\talso
\npassed,\t restraining  the defendants from dispossessing\t the
\nplaintiffs from the property in dispute except in due course
\nof law.”\n<\/p>\n
\t (Emphasis supplied)<\/p>\n
    It\tis thus to be seen that the even while decreeing the
\nSuit  the  Court  has  held   that  the\t Respondents   could
\ndispossess  the\t Plaintiffs by following due course of\tlaw.
\nThe  question  of  dispossessing  the  Plaintiffs\/Appellants
\nwould  not  arise if the Appellants were the owners  of\t the
\nland  and the land was not under an old grant.\tThis clearly
\nshows  that  point  was not pressed before the\tTrial  Court
\nand\/or\tthat if this point was pressed it has not been\theld
\nin  favour of Plaintiff\/Appellant.  If the point was pressed
\nthen  it  must\tbe deemed to have been decided\tagainst\t the
\nAppellant  as Court has permitted dispossession by following
\ndue course of law.\n<\/p>\n
    The Respondents then filed an Appeal before the District
\nJudge, Ambala.\tNo cross Appeal was filed by the Appellants.
\nThe  District  Judge dismissed the Appeal on 6th  September,
\n1979.\tWe  have  read the Judgment of the  District  Judge.
\nHere  also there is no claim that the land was not under  an
\nold  grant.   The  District  Judge has\talso  in  the  final
\nparagraph of his Judgment held as follows:\n<\/p>\n
    “9.\t  Lest there be any misunderstanding it is clarified
\nthat  neither  the  assailed order dated 27.11.1978  of\t the
\nlearned trial Court nor the judgment in this appeal would in
\nany  way  stand\t in  the way of Union  of  India  initiating
\nproceedings  for  resumption  of  the  disputed\t land  after
\ncompliance of the statutory formalities.”\n<\/p>\n
    This clarification could only have been issued, provided
\nit  was\t an admitted position that the land belonged to\t the
\nUnion  of  India and that they could resume it by  following
\ndue  process  of  law.\t If there had been a  claim  to\t the
\nownership  of the land by the Appellants such  clarification
\ncould not have been issued.\n<\/p>\n
    The\t Respondents  then filed a Second Appeal before\t the
\nHigh  Court  of Punjab & Haryana at Chandigarh.\t During\t the
\npendency  of this Appeal, this Court in the case of Union of
\nIndia  vs.   Harish Chand Anand<\/a> reported in 1995 Supp.\t (4)
\nSCC  113, held that the Respondents were entitled to  resume
\nthe  land  without prior determination of the amount of\t the
\nstructure.   This  Court  held that the view that it  was  a
\ncondition  precedent  for the Respondents to give notice  to
\nthe  parties concerned, determine the compensation and\tthen
\nonly  resume the property was not correct.  It was held that
\nthe  view  taken by the Delhi High Court in the case of\t Raj
\nSingh  vs.   Union of India<\/a> reported in AIR 1973 Delhi\t169,
\nwas  a correct view and that the Government could resume the
\nland  merely by giving one month’s notice.  It was held that
\nthe  amount  may  have\tto be  determined  after  giving  an
\nopportunity but that this could be done thereafter.  As this
\nCourt  had now finally laid down the law and as the Judgment
\nof  the Trial Court and the first Appellate Court were\tonly
\non  the basis that prior opportunity of being heard had\t not
\nbeen  given,  the  High\t Court by  its\tJudgment  dated\t 7th
\nNovember,  1997 reversed the Judgment of the Trial Court  as
\nwell  as  the first Appellate Court and dismissed the  Suit.
\nIn its Judgment the High Court observed as follows:\n<\/p>\n
    “It\t is  not  in  dispute that  the\t plaintiffs  are  in
\npossession  of the property in dispute on what are known  as
\n‘old  grant’  terms.  The terms are contained in  order\t No.
\n179 of 12-12-1836 issued by the Governor General of India in
\nCouncil and have been produced on record.”\n<\/p>\n
    Thus  it is to be seen that before the High Court it had
\nnot  been disputed that the land was under an old grant term
\nand  that  the terms of the old grant had been\tproduced  on
\nrecord.\n<\/p>\n
    At\tthis  stage,  it must be mentioned that\t this  Court
\nagain had occasion to consider whether the view taken by the
\nDelhi  High  Court in Raj Singh’s case (supra) was  correct.
\nThis  Court  has, in the case of Union of India & Anr.\t vs.
\nTek  Chand  and\t ors<\/a>.  reported in (1999) 3 SCC\t 565,  again
\napproved the view in Raj Singh’s case.\n<\/p>\n
    As\tthe  Appellants were now non-suited on the basis  of
\nlaw  finally  laid  down by this Court, they filed  on\t10th
\nDecember,  1997 a Review Petition.  In this Review Petition,
\nfor  the  first time, they sought to raise a point that\t the
\nland was not under the old grant terms.\t For the first time,
\nafter  all  these  years,  they sought to  rely\t on  certain
\ndocuments  and seek a clarification from the High Court that
\nits  comments to the effect that “it was not in dispute that
\nthe  land was on old grant terms” were not correct and\tthat
\nthe  same  should  be  deleted.\t It was\t now  sought  to  be
\ncontended  that they had never admitted that the land was on
\nold  grant terms.  This Review Petition came to be dismissed
\non  24th December, 1997.  Thus the High Court has  confirmed
\nthat  at the time when the original Appeal was argued it was
\nnot  in\t dispute  that the land was under old  grant  terms.
\nCivil  Appeals\tNos.  917-918 of 1998 are filed against\t the
\nJudgment  dated 10th November, 1997 and the order dated 24th
\nDecember, 1997.\n<\/p>\n
    In\t Civil\tAppeals\t arising  out\tof  SLP\t  (C)\tNos.
\n22436-22437 of 1997 also the bungalow and land are in Ambala
\nCantonment.   The  notice  of resumption was given  on\t30th
\nJuly,  1971.   The  Suit  was  filed in\t the  Court  of\t the
\nSub-Judge, Ist Class, Ambala.  In this Suit it was contended
\nthat it was not proved that the land was on old grant terms.
\nIt  was\t also urged that the terms of the old grant did\t not
\npermit\tresumption of land.  However, no evidence was led to
\nprove  that plaintiffs were owners.  Plaintiff\/Appellant and
\nhis witnesses did not depose that land did not belong to the
\nRespondents.   The Respondents had brought on record and got
\nexhibited  an  admission in writing, by the predecessors  of
\nthe  Appellants,  that the land was on old grant terms,\t the
\nGGO  No.  179 dated 12th September, 1836 and the Register of
\nLand  Records.\t In  this case on the basis of\tevidence  on
\nrecord the Trial Court dismissed the Suit.\n<\/p>\n
    The Appellants then filed an Appeal.  In the Appeal also
\nit was contended that it was not proved that the land was on
\nold grant terms.  The Appellate Court, after considering the
\nevidence,  dismissed the Appeal on 3rd September, 1986.\t The
\nAppellants  then  filed\t a Letters Patent Appeal  which\t was
\ndismissed  by  the High Court on 8th July, 1997.   A  Review
\nPetition  was also filed and the same was also dismissed  on
\n7th  October,  1997.  Thus in this case the Appellants\thave
\nlost in all Courts.  All Courts have, on evidence and facts,
\nheld against the Appellants.\n<\/p>\n
    It\tmust be mentioned that, in some other case filed  by
\nthese  Appellants  in 1990, an application is  made  calling
\nupon  the  Respondents to produce the old grant and  certain
\nother  documents.  In that Suit the Respondents have replied
\nthat the original records regarding the bungalow in question
\nand the Notification through GGO 179 of 12th September, 1836
\nwere  applied to the Ambala Cantonment, but that the  papers
\nshowing\t that  Ambala  Cantonment  was\t a  station  of\t the
\nBangalore  Army\t and the Notification were not available  on
\nrecord.\n<\/p>\n
    These  are the facts in brief.  Now let us consider\t the
\nsubmissions.\n<\/p>\n
    Mr.\t  Andhyarujina\tsubmitted  that\t his  case  was\t not
\ncovered\t by  the  decision in Harish Chand’s  case  (supra).
\nRelying\t on Para 4(b) of the Plaint, which has been set\t out
\nhereinabove,  he  submitted  that  his\tclients\t had  always
\ndisputed that the land was on old grant basis.\tHe submitted
\nthat  in  the  Suit the old grant has not  been\t brought  on
\nrecord\tby  the Respondents till date.\tHe pointed out\tthat
\nall that had been brought on record was the cyclostyled copy
\nof the Governor General in Council Order No.  179 dated 12th
\nSeptember,  1836.   He submitted that this was not  the\t old
\ngrant.\t He submitted that the grant would necessarily\thave
\nto  be\ta  registered document.\t He submitted  that  as\t the
\nRespondents  were contending that the land was on old  grant
\nterms,\tit  was for the Respondents to prove their  case  by
\nproducing  the old grant.  Mr.\tAndhyarujina submitted\tthat
\nan admission did not confer title.  He submitted that if the
\nRespondents  were  claiming to be owners of the land it\t was
\nfor them to prove their ownership.\n<\/p>\n
    He\tsubmitted that the Appellants had ample evidence  to
\nshow  that they were the owners of the land.  In support  of
\nthis  he  relied  upon a Sale Deed dated  21st\tApril,\t1926
\nbetween Milliam Robert Pearce and George Erner Sysmes on the
\none  hand  and Lala Balmokand Bhalla on the other.  In\tthis
\nDeed  it  is  recided  that one\t Lewis\tHerbert\t Robbin\t had
\nappointed  the vendors as his executors to administrate\t his
\naffairs\t and that the said Lewis Herbert Roobin had  expired
\non  1st\t May,  1925.  It is stated that the  Will  had\tbeen
\nproved in the High Court at Lahore and that the vendors were
\nnow  the  owners of the property and were selling the  same.
\nHe pointed out that the recital showed that the property was
\non  a  perpetual lease free from rent from the Secretary  of
\nState  for  India in Council.  He submitted that this was  a
\nregistered  document which showed that the land in  question
\nwas not under old grant terms.\n<\/p>\n
    Mr.\t  Andhyarujina\talso relied upon a Lease dated\t28th
\nAugust, 1936, wherein Lala Balmokand Bhalla had leased out a
\ndwelling  house\t along\twith  out houses  and  land  to\t the
\nSecretary  of State for India in Council.  He submitted that
\nif  the\t land  was  on old grant terms, then  there  was  no
\nquestion  of  the  predecessors in title of  the  Appellants
\nleasing\t out the land to the Secretary of State for India in
\nCouncil.   Mr.\t Andhyarujina also relied upon another\tSale
\nDeed  dated  25th January, 1943, by which  Balmokand  Bhalla
\nsold  the  property to Lala Padam Pershad and  Lala  Mahabir
\nPershad.\n<\/p>\n
    Mr.\t Andhyarujina submitted that if this land was on old
\ngrant  terms,  then not only the lease would not  have\tbeen
\nexecuted,  but such sales could not have taken place as\t the
\nold  grant  terms  did not permit transfer  without  written
\npermissions.   At this stage it must be noticed that none of
\nthese  documents  had  been brought on record in  the  Suit.
\nThese documents had been annexed for the first time, only in
\nthe Review Petition filed in the High Court.\n<\/p>\n
    Mr.\t  Andhyarujina\tsubmitted that earlier the  Himachal
\nPradesh\t High  Court had, in the case of Durga Das  Sud\t vs.
\nUnion  of  India<\/a> reported in AIR 1972 HP 26, taken the\tview
\nthat  principles of natural justice had to be complied\twith
\nand  that no notice of resumption could be given unless\t and
\nuntil  compensation  was  first\t  fixed\t after\thearing\t the
\nconcerned  parties.  He pointed out that the Allahabad\tHigh
\nCourt  had taken the same view in the case of Mohan  Agarwal
\nvs.   Union  of\t India<\/a> reported in AIR 1979 All.   170.\t  He
\nsubmitted  that\t this  was  the\t law  which  prevailed.\t  He
\nsubmitted  that because of this law the trial Court took  an
\neasy  way  out\tand decided his clients’ suit  only  on\t the
\nnarrow\tpoint  of principles of natural justice\t not  having
\nbeen  followed.\t  He  submitted\t that it  has  nowhere\tbeen
\nmentioned  that his clients had not pursued or had given  up
\ntheir  case  that the land was not on old grant\t terms.\t  He
\nsubmitted  that merely because the Trial Court took an\teasy
\nway  out  and  did not decide all the points  urged  by\t his
\nclients\t would be no reason for depriving the Appellants  of
\ntheir  valuable right.\tHe submitted that as his clients had
\nsucceeded  in  the trial Court they did not need to file  an
\nAppeal.\t  He submitted that before the first Appellate Court
\nalso his clients succeeded.  He submitted that only in 1995,
\nin  Harish  Chand’s case (supra), this Court  overruled\t the
\nview  taken by Allahabad High Court and the Himachal Pradesh
\nHigh  Court and approved a contrary view taken by the  Delhi
\nHigh  Court in Raj Singh’s case (supra).  He submitted\tthat
\nthe  trial Court and Appellate Court decided in his  clients
\nfavour\tonly  on  the basis of the law\tthen  existing.\t  He
\nsubmitted that the Courts chose to decide the case merely on
\none  point,  even though his clients had at all\t stages\t not
\ngiven  up the case that the land was not on old grant terms.
\nHe  submitted  that  his  client cannot be  made  to  suffer
\nbecause the Courts chose not to decide other aspects.\n<\/p>\n
    Mr.\t  Andhyarujina relied upon Section 110<\/a> of the Indian
\nEvidence  Act and submitted that whenever a question  arises
\nwhether\t any person is the owner of anything of which he  is
\nshown  to be in possession, the burden of proving that he is
\nnot  the  owner is on the person who affirms that he is\t not
\nthe  owner.   He  submits  that\t the  Appellants  and  their
\npredecessors in title have been in possession since at least
\n1926.\tHe  submits  that  the burden was  entirely  on\t the
\nRespondents  to\t show  that they were not  the\towners.\t  He
\nsubmits\t that  the only way that the burden could have\tbeen
\ndischarged  was\t to produce the old grant.  He submits\tthat
\nmerely\tproducing a Register in which it has been  mentioned
\nthat  the property is on old grant terms is not\t sufficient.
\nHe submits that the Register and the copy of GGO 179 of 1836
\nwould  be  secondary  evidence.\t  He  submitted\t that\tsuch
\nevidence  would be barred under the provisions of Section 91<\/a>
\nof  the Indian Evidence Act unless it was shown that the old
\ngrant  was not available.  He submitted that in this case no
\nevidence  had been led to show that the old grant, if  there
\nwas  one,  had\tbeen lost or misplaced or that\tit  was\t not
\navailable.  He submitted that mere production of Register or
\na cyclostyled copy of the terms of the grant was no evidence
\nat all.\n<\/p>\n
    In\tsupport of his submission he relied upon the case of
\nUnion  of India vs.  Purushotam Dass Tandon reported in 1986
\n(Supp) SCC 720.\t In this case Allahabad Polytechnic filed an
\ninterpleader Suit as there was a dispute between the persons
\nwho  had let out the property to them and the Union of India
\nas  to\tthe ownership of the property.\tIn the\tinterpleader
\nSuit the question was whether the person who had let out the
\nproperty  to  the Polytechnic was the owner or\twhether\t the
\nUnion  of  India was the owner of that property.  The  Court
\nheld  that the burden to prove its title was on the Union of
\nIndia and that it should discharge their burden by producing
\nthe  old  grant.  The Court held that the Court should\tknow
\nthe terms and the date of the grant and that an admission in
\na  standard  draft for seeking permission of the  Cantonment
\nBoard  for  transfer was no proof of title.  However, to  be
\nnoted,\tthis  was a case where the question of title of\t the
\nUnion was in serious dispute.\n<\/p>\n
    Mr.\t  Andhyarujina also relied upon the authority in the
\ncase  of P.  T.\t Anklesaria vs.\t H.  C.\t Vashistha<\/a>  reported
\nin  AIR\t 1980 Bombay 9.\t In this case the land and house  in
\nthe  Pune Cantonment were sought to be resumed.\t  Resumption
\nwas  challenged\t on the ground that this was not  Government
\nland.\tIt was held that it cannot be said that all land  in
\nthe Cantonment were Government land and there was no land of
\nprivate\t ownership  in the Cantonment.\tIt was held that  it
\nhad  first  to be established that the land belonged to\t the
\nGovernment.   It  was  held that even though  there  may  be
\nentries\t in  the Register of the Government,  those  entries
\nraised no presumption that they are true, until the contrary
\nis  proved.   It  must also be mentioned  that\tthis  matter
\nultimately  came  up  before  this Court.   This  Court\t has
\nremitted  the matter back to the High Court with  permission
\nto  the Union to lead proper evidence, if it so chose.\tThis
\nagain  was a case where there was a dispute whether the land
\nbelonged to the Government.\n<\/p>\n
    Mr.\t  Andhyarujina then submitted that there was nothing
\nto  show  that the GGO No.  179 dated 12th  September,\t1836
\napplied\t to Ambala.  He submitted that there was nothing  to
\nshow  that  Ambala  was part of the Bengal  Army.   In\tthis
\nbehalf\the  referred to the reply filed by the\tRespondents,
\nwherein it has been stated as follows:\n<\/p>\n
    “8.\t  G.G.O.  179 of 12.9.1836 is applicable to all\t the
\ncantonments of India.  For the purpose of administration the
\nBengal Army was organized in two portions the Bengal Command
\nand  the  Punjab Command.  The Punjab Command  included\t the
\nPeshwar\t Cantonment.   Notes on old grant terms in  Military
\nLand Manual are being filed as ANNEXURE-R- 2.”\n<\/p>\n
    He\tsubmitted  that\t in support of this  contention\t the
\nRespondents  were relying upon the Extract from the Military
\nLand  Manual  which had been annexed to the said  Affidavit.
\nHe  pointed  out that in this Extract there was not  a\tword
\nabout  Ambala.\t He  submitted\tthat in\t the  Rejoinder\t the
\nAppellants  have  denied that Ambala fell within the  Bengal
\nArmy.\n<\/p>\n
    Mr.\t  Yogeshwar  Prasad on behalf of the Appellants,  in
\nCivil  Appeals\tarising out of SLP (C) Nos.  22436-22437  of
\n1997,  supported  Mr.\tAndhyarujina in his  arguments.\t  He
\nfurther submitted that in his case it was all along disputed
\nthat the land was on old grant.\t He submitted that the grant
\nhad  not been produced in this case.  He pointed out that in
\nthe  subsequent\t Suit  which was filed in 1990 it  had\tbeen
\nadmitted that these papers were not available.\tHe submitted
\nthat Ambala became a Cantonment only in 1845.  Threfore, GGO
\n179  of\t 1836  could  not  possibly  apply  to\tAmbala.\t  He
\nsubmitted  that in his case also there was no proof to\tshow
\nthat the land was on old grant terms.  Mr.  Yogeshwar Prasad
\nalso  relied  on  certain  Sale\t Deeds\tand  a\tLease  Deed.
\nHowever,  these\t have been produced, for the first time,  in
\nthis Appeal.\n<\/p>\n
    On\tthe other hand, Mr.  Rohtagi submitted that in Civil
\nAppeal\tNos.   917-918 of 1998 it was an  admitted  position
\nthat  the land was on old grant terms.\tHe submits in  Civil
\nAppeals\t (arising out of SLP (C) Nos.  22436-22437 of  1997)
\nthat  on  facts\t all  Courts  had  held\t in  favour  of\t the
\nRespondents.   He  points  out that in both  the  cases\t the
\nAppellants   or\t the  predecessors   had  given\t  affidavits
\nadmitting the fact that the land was on old grant terms.  He
\npoints out that the affidavits were tendered in evidence and
\nmarked\tas  exhibits and\/or are on record.  He submits\tthat
\nthe  notices of resumption were given in 1971 and 1973.\t  He
\nsubmits\t that Mr.  Andhyarujina’s clients have litigated for
\nthe last approximately 17 years on an admitted position that
\nthe  land was on old grant terms.  He submits that it is now
\ntoo  late  in the day and would be a travesty of justice  if
\nthey  were  to\tbe  permitted to resile\t from  the  admitted
\nposition  and  at this belated stage be allowed\t to  contend
\nthat  the land did not belong to the Government.  He submits
\nthat Mr.  Yogeshwar Prasad’s clients have lost in all Courts
\non facts and have not been able to show that the findings of
\nthe Courts below are not based on evidence in that case.\n<\/p>\n
    Mr.\t  Rohtagi  pointed  out, from the  original  records
\nwhich  were  available in this Court, that in  Civil  Appeal
\nNos.  917-918 of 1998 the Appellants had given evidence.  He
\npointed\t out  that  in\tthe evidence there was\tnot  even  a
\nstatement that the Appellants or their predecessors were the
\nowners\tof  the property and\/or that the Government was\t not
\nthe  owner of the land.\t He points out that in this case the
\ndocuments  which have been relied upon by Mr.\tAndhyarujina
\nwere  not  part of the record and had  been  surreptitiously
\nbrought\t on record by way of Review Petition only after\t the
\nHigh  Court  delivered\tthe impugned Judgment.\t He  further
\npoints out that in the Civil Appeals (arising out of SLP (C)
\nNos.  22436-22437 of 1997) some documents have been produced
\nfor  the  first time in the Appeal and are now sought to  be
\nrelied\tupon.  He submits that the ratios laid down, in\t the
\ncases  of  P.\tT.  Anklesaria and  Purushotam\tDass  Tandon
\n(supra),  have\tno application to these cases.\t He  submits
\nthat  those were cases where it was denied that the land was
\non  old\t grant\tterms.\tHe submits that in those  cases\t the
\nGovernment  was required to prove that it was the owner\t and
\nhad  failed to do so.  He submits that in one of these cases
\nit  has\t been an admitted position that the land was on\t old
\ngrant terms and in the other all Courts have, on facts, held
\nin  favour of the Respondents.\tHe further points out  that,
\neven  though  it  was not necessary, in\t Civil\tAppeal\tNos.
\n917-918\t of  1998, the witness of the Government  had  given
\nevidence that this is a Government land.  He points out that
\nthe  witness  has  produced  the Register  of  land  records
\nshowing\t that the land is on old grant terms.  He points out
\nthat  the witness has produced GGO 179 dated 12th September,
\n1836.  He submits that even in Civil Appeals (arising out of
\nSLP  (C)  Nos.\t 22436-22437  of 1997)\tthe  Government\t has
\nproduced  the  Register\t of Land records and  the  GGO.\t  He
\nsubmits\t that in both the cases the Government has  produced
\nwritten admissions of the parties or their predecessors that
\nthe land was on old grant terms.\n<\/p>\n
    He\tsubmits\t that these cases are fully covered  by\t the
\nauthority  of  this  Court in Surendra\tKumar  Vakil’s\tcase
\n(Supra).   He further submits that an admission is a  strong
\npiece  of evidence and is relevant and admissible by  virtue
\nof  Section 21<\/a> of the Indian Evidence Act.  He submits\tthat
\nsuch  an  admission  would be binding unless he is  able  to
\nexplain away such admission.  He submits that neither of the
\nAppellants  have  given any explanation or even stated\tthat
\nthe  admission\twas  given under force\tor  compulsion.\t  He
\nsubmits that counsel cannot for the first time, in arguments
\nduring\tSLP, supply explanation on behalf of their  clients.
\nHe  submits that the Appellants have no case at all and\t the
\nAppeals must be dismissed.\n<\/p>\n
    We\thave  considered the rival submission.\tIn our\tview
\nMr.   Rohtagi is quite right.  It is now too late in the day
\nfor  Mr.   Andhyarujina’s clients to take a contrary  stand.
\nMr.   Yogeshwar\t Prasad’s clients have on facts lost in\t all
\nCourts\tbelow.\tNotice to produce documents, given belatedly
\nin  some  other\t case, is of no relevance so  far  as  these
\nAppeals\t are concerned.\t The practice of annexing irrelevant
\ndocuments  and trying to rely on them for the first time  in
\nthe  Appeal or in Review Petitions in the High Court  should
\nbe deprecated.\n<\/p>\n
    In\tCivil Appeal Nos.  917-918 of 1998 it is clear that,
\nat  all stages, the case has progressed on the basis that it
\nwas  not disputed that the land was on old grant terms.\t  Of
\ncourse,\t in  the Plaint, in Para.  4(b) it had been  averred
\nthat  the land was not on old grant terms.  However,  except
\nfor  making such an averment that point has clearly not been
\npressed\t at  any stage.\t In evidence given by the  plaintiff
\nand\/or\ton  his behalf, there is no statement that the\tland
\nwas  of\t plaintiff  ownership and\/or that the land  did\t not
\nbelong\tto the Government.  During trial the documents,\t now
\nsought\tto be relied upon by Mr.  Andhyarujina were  neither
\nproduced nor tendered nor got marked as Exhibits.  Were they
\nproduced  Respondents would have had an opportunity to cross
\nexamine\t the  witnesses and show that the averments  in\t the
\ndocuments  were\t not correct and\/or to explain how  and\t why
\nlease  was taken by the Secretary of the State.\t It is clear
\nthat  the  averments  in para 4(b) of the  Plaint  were\t not
\npressed.   That they were not pressed is also clear from the
\nJudgment  of the Trial Court.  It sets out all the arguments
\nof  the parties.  No submission on the question of ownership
\nof land by the Plaintiff and\/or that the land was not on old
\ngrant  terms has been recorded.\t If it was argued and  their
\nsubmissions  were not recorded cross objections should\thave
\nbeen filed particularly when in the last paragraph the Trial
\nCourt  clarifies  that the Government could resume the\tland
\nafter  following  due procedure of law.\t There could  be  no
\nquestion  of  resumption if it was being disputed  that\t the
\nGovernment  was the owner of the land.\tIf Mr.\tAndhyarujina
\nis  right and the parties had not given up this\t contention,
\nthen  it  would be worse for the Appellants inasmuch  as  it
\nwould  then  mean  that\t the trial Court  had  not  accepted
\nPlaintiffs\/Appellants  claim  to ownership of land  and\t had
\nnegatived it.\n<\/p>\n
    The Appellants never went in Appeal against the Judgment
\nof  the\t Trial\tCourt.\tEven when the  Respondents  went  in
\nAppeal\tno  cross  objections were filed.  Even\t before\t the
\nfirst  Appellate  Court\t it has not been stated\t that  their
\nsubmissions  were not dealt with and\/or that the portion  of
\nthe  Judgment  permitting resumption, after due\t process  of
\nlaw, could not have been granted.  On the contrary the first
\nAppellate  Court is also clarifying that the Government\t can
\nresume\tafter following due process of law.  This shows that
\neven  before  the first Appellate Court it was\tan  admitted
\nposition  that the Government was the owner of the land\t and
\nthat the land was on old grant terms.\n<\/p>\n
    When  the  Respondents went in Second Appeal before\t the
\nHigh  Court,  at this stage also, no cross  objections\twere
\nfiled.\t Before the High Court it was not disputed that\t the
\nland was on old grant terms.  The High Court has so recorded
\nin  its Judgment.  It is settled law that one has to proceed
\non  basis  of what has been recorded by the Court.   If\t any
\nparty  feels  aggrieved\t of what has been  recorded  by\t the
\nCourts\ta  clarification  has to be sought  from  that\tsame
\nCourt.\tIn this case the clarification was sought, by way of
\nReview\tPetition, to which as stated above, fresh  documents
\nwere  purported to be attached for the first time.  The High
\nCourt  has rejected the Review Petition.  The High Court has
\nthus confirmed that at the time the Second Appeal was argued
\nit  was\t not disputed that the land was on old grant  terms.
\nThis  Court  has  to  go by what has been  recorded  in\t the
\nJudgement.  What is recorded in the Judgment is supported by
\nthe  conduct of the parties inasmuch as no evidence was\t led
\nto dispute the fact, no documents were tendered or marked as
\nExhibits  and no submissions were made on this aspect.\tThat
\nit  was not disputed that the land was on old grant terms is
\nalso supported by what has been recorded in the Judgments of
\nthe  trial court and the First Appellate Court.\t There is no
\nevidence  that\tthe  written admissions were  taken  forciby
\nand\/or\t that  they  were  not\t binding  or  not   correct.
\nAdmissions  are\t relevant  evidence if not  explained  away.
\nThus  these cases have been fought over the last 17 years on
\nan  admitted position.\tMr.  Rohtagi is right that it  would
\nbe  a  travesty\t of justice and would amount  to  permitting
\nparties\t to  misuse  laws delays if at this stage  they\t are
\npermitted  to change their stand and take contentions  which
\nare  contrary  to  what has been the admitted  position\t all
\nthese years.\n<\/p>\n
    In\t Civil\tAppeals\t (arising  out\t of  SLP  (C)\tNos.
\n22436-22437  of\t 1997)\tall  the  Courts  below\t have  given
\nconcurrent  findings of fact.  We see no infirmity in  these
\nfindings.  The findings of fact are based on evidence before
\nthe Trial Court and require no interference.\n<\/p>\n
    Once  it is admitted that land was on old grant terms it
\nis  irrelevant to argue that it is not shown that Ambala was
\nunder  the Bengal Army.\t The same would be the position when
\non evidence Court has held that land is on old grant terms.\n<\/p>\n
    It\tmay only be mentioned that even in the three Appeals
\nwhich  were withdrawn, it had been an admitted position that
\nthe land was on old grant terms.  As that position could not
\nbe  controverted and as those parties were fully covered  by
\nSurendra  Kumar\t Vakil’s  case (supra), those  Appeals\twere
\nwithdrawn.\n<\/p>\n
    In these Appeals, the principles laid down in Purushotam
\nDass  Tandon’s\tcase and P.  T.\t Anklesaria’s  case  (supra)
\nwould  not  apply.   In our view, these\t Appeals  are  fully
\ncovered\t by  the ratio laid down in Surendra  Kumar  Vakil’s
\ncase.\tIn  our view there is no infirmity in  the  impugned
\nJudgments  of  the High Courts.\t Accordingly, these  Appeals
\nare  dismissed.\t  There\t will, however, be no  Order  as  to
\ncosts.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Smt. Chitra Kumari vs Vs on 14 February, 2001 Author: S N Variava Bench: V.N. Khare, S.N. Variava. CASE NO.: Appeal (civil) 917-918 of 1998 Appeal (civil) 1265-66 of 2001 PETITIONER: SMT. CHITRA KUMARI Vs. RESPONDENT: VS. DATE OF JUDGMENT: 14\/02\/2001 BENCH: V.N. Khare & S.N. Variava. JUDGMENT: S. N. VARIAVA, […]<\/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":[30],"tags":[],"class_list":["post-250565","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSmt. 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