REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICITION

CIVIL APPEAL NO.6464 OF 2004

Arun Lal & Ors. …Appellants

Versus

Union of India & Ors. …Respondents

(With Civil Appeal No.6465 of 2004)

J U D G M E N T

T.S. THAKUR, J.

1.These appeals by special leave arise out of orders

passed by the learned Single Judge of the High Court of

Allahabad whereby Civil Misc. Writ Petition No.43928 of

2002 filed by the respondent-Union of India has been

allowed and order dated 3

rd

August, 2002 passed by the

District Judge, Agra in revision and that dated 24

th

May,

2002 passed by the Additional Civil Judge, Agra, in

execution proceedings filed before the later set aside. The

High Court has while allowing the writ petition and setting

aside the orders referred to above held that the execution

proceedings instituted by the respondent-decree holders

were not maintainable in so far as the same related to

2.792 acres of land that stood resumed by the Government

of India in terms of a resumption notice dated 23

rd

September, 1970 and the possession thereof taken over on

6

th

November, 1970. The short question that arises for our

consideration therefore is whether the High Court was right

in taking that view and dismissing the execution

proceedings in so far as the same related to land

measuring 2.792 acres appurtenant of Bungalow No. 194,

situate in the Agra cantonment area. The facts giving rise

to the controversy have been set out in detail by the High

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Court and need not, therefore, be repeated by us here

except to the extent it is absolutely necessary to do so.

2.Land measuring 3.563 acres situated in Survey

No.160 within Agra Cantonment was held in occupancy

rights by one Hamid Ali Khan on the strength of a grant

under the Government of India. The grantee it appears

had constructed what has been described in the orders

passed by the Courts below as Bungalow No. 194 situated

in the cantonment area at Agra. Pursuant to an application

filed jointly by Hamid Ali Khan and Lala Chhail Behari, the

Military Estates Officer granted permission for transfer of

the Bungalow aforementioned and the land under and

appurtenant thereto in terms of letter dated 3

rd

August,

1946. A sale deed was accordingly executed in respect of

the property on 11

th

September, 1946 by Hamid Ali Khan in

favour of Chhail Behari Lal and his two brothers Naval

Kishore and Kapoor Chand. The Bungalow in question had

been let out by the original grantee to the Military Estate

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Officer in June 1942 on monthly rental of Rs.125/-. The

purchasers on the basis of the sale in their favour acquired

the right to claim the rent payable for the same from the

Military Estate Officer. Suit No. OS 842 of 1958 was

accordingly filed by the purchasers for recovery of arrears

of rent and damages and for vacant possession which suit

was decreed for a sum of Rs.1600/- only towards rent and

damages. The Court held that in the absence of any

material to show that the Government had issued any

notice for resumption of the land appurtenant to the

bungalow, the Government of India was liable to pay

damages for remaining in occupation of the barracks which

had been built in the compound of bungalow.

3.The grant holder Naval Kishore and others filed a

second suit bearing suit No.6 of 1963 for recovery of rent

and damages for use and occupation of the bungalow

apparently for the period subsequent to the earlier suit.

This suit was also decreed by the Trial Court. The appeal

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preferred by the Union of India was, however, allowed

holding that there was no valid contract between the

parties in respect of the bungalow and consequently the

claim for rent could not be decreed. The claim for payment

for damages also failed on account of non-compliance with

the provisions of Section 80 of the CPC.

4.A third suit being suit No.99 of 1968 was then filed by

the Naval Kishore and others for recovery of Rs.7800/- as

arrears of rent and damages with a prayer for possession

by eviction of the Garrison Engineer from the main

bungalow and the land over which the Govt. of India had

built the barrack. This suit was decreed on 25

th

October,

1969 but only to the extent of recovery of Rs.8977.50

towards rent. The Trial Court did not go into the question

of title to the property as the suit was based on a tenancy

in favour of the respondents-Union of India. Two appeals

came to be filed against the said judgment and decree.

While appeal no.294 of 1969 was filed by Naval Kishore

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and others, appeal no.66 of 1970 was filed by the Union of

India. Both these appeals were heard together and by a

common order the appeal filed by the Union of India was

dismissed while that filed by the Naval Kishore and others

was allowed. The High Court held that although no

contractual tenancy came into existence between the

parties, a statutory tenancy came into existence under the

provisions of the Cantonment (House Accommodation) Act,

1993 and that any such tenancy was not dependent upon

the execution of a formal decree. The provisions of Article

299(1) of the Constitution were held to be inapplicable to

such tenancy.

5.The High Court also found the composite notice

served upon the Union of India under Section 80 CPC and

Section 106 of the Transfer of Property Act to be valid and

decreed the suit for recovery of possession by ejectment of

defendants from the bungalow and the land underlying the

same with a direction to remove the barracks that were

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constructed on a part of the compound failing which the

same were directed to be removed under the orders of the

Court and the possession delivered to the decree-holder.

6.Civil Second appeal nos.1935 of 1970 and 1936 of

1970 filed by the Union of India filed against the said order

were dismissed by order dated 8

th

February, 1984 passed

by the High Court as abated on account of the failure of the

appellant to substitute the legal heirs of the plaintiffs-

respondents. It was in the above backdrop that execution

application no.16 of 1977 was filed by the decree-holder

before the Executing Court in which the Union of India filed

its objections opposing the execution inter-alia on the

ground that the land appurtenant to the Bungalow having

been resumed by the Government the possession of the

same could be taken away from it in execution of the

decree passed in favour of the decree holders. According

to the Government, out of a total extent of the total 3.563

acres of land granted to the original grantee Bungalow

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No.194 was constructed over an area measuring 0.771

only. This left an area measuring 2.792 acres vacant

around the bungalow. By an order dated 24

th

September

1970 the Union of India resumed the aforementioned 0.771

acres of land underlying the bungalow, for which a

resumption notice dated 2

nd

February, 1976 was issued.

This notice it is significant to mention, did not make any

reference to the remaining extent of 2.729 acres which was

appurtenant to the bungalow. Aggrieved by the said

resumption order the grantees filed writ petition No.1482

of 1971 which was allowed by a Division Bench of the High

Court of Allahabad holding that the Government of India

could not take over/resume any building or land except

after serving one month’s notice and paying to the owner

compensation for the property being resumed based on a

process or determination with which the erstwhile grantee

is also associated. The High Court held that since no such

notice was served nor any compensation determined the

resumption order was unsustainable. The same was

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accordingly quashed. Another notice dated 23

rd

September,

1970 purporting to resume the vacant area measuring

2.792 acres, however, remained unchallenged. The High

Court has in the order impugned before us recorded a

finding that possession of the said extent of land was taken

over by the respondents on 6

th

November, 1970.

7.The objections filed by the Union of India to the

execution proceedings in the above background raised a

plea that the decree for delivery of possession to the extent

the same related to 2.792 acres of land was rendered

inexecutable as the said extent of land stood resumed by it

in terms of resumption notice dated 23

rd

September, 1970

and that possession of the said area was also taken over by

the competent authority on 6

th

November, 1970. The Union

of India therefore argued that since the resumption of the

land in question had attained finality and since possession

of the same was also taken over from the decree holders

there was no question of dispossessing the Union of India

from the said extent of land in execution to the decree

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passed in favour of the petitioner. The Civil Judge rejected

the objection raised by the Government. The District Judge

in revision affirmed that order holding that the objections

filed by the Union of India were time barred. Aggrieved by

the said orders the Union of India preferred Civil Misc.

Petition No.43928 of 2002 before the High Court who

framed the following three questions for determination:

(1)Whether the land in dispute is an old grant and the

resumption of part of the old grant on the land

measuring 2.792 acres by notice dated 23.9.1970 of

which the possession was taken on 6.11.1970 has

become final between the parties?

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

land was directly and substantially in issue between

the parties in suit no.842 of 1958, and cannot be re-

agitated in the present proceeding on the principle of

res judicata?

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(3)Whether the objections filed by petitioners under

section 47 C.P.C. to the execution of the decree,

were barred by limitation?

8.Answering question no.1 in the affirmative the High

Court held that the grant in question was an old grant and

that resumption of land measuring 2.792 acres in terms of

notice dated 23

rd

September, 1970 and taking over of

possession on 6

th

November, 1970 had attained finality

between the parties. Question no.2 was answered by the

High Court in the negative. It was held that the question

whether the grant was old or new was not directly and

substantially in issue in Suit no.842 of 1958. The principle

of res judicata did not, therefore, debar the plea that the

grant was an old grant. In so far as question no.3 is

concerned, the High Court held that there was no limitation

prescribed for filing of objections under Section 47 CPC and

hence rejection of objections by the Revisional Court on

that ground was not legally correct. The present appeals

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assail the correctness of the judgment and order of the

High Court as already noticed above.

9.Having heard learned counsel for the parties at

considerable length we do not find any reason, muchless a

compelling one, for us to take a view different from the one

taken by the High Court. That land measuring 2.792 acres

appurtenant to the bungalow was resumed in terms of

notice dated 23

rd

September, 1970 has not been disputed

before us. That the said notice was not assailed by the

grantees before any Court or authority is also not in dispute.

That possession of the resumed land appurtenant to the

bungalow was taken over on 6

th

November, 1970 has also

not been assailed nor is the finding recorded to this effect by

the High Court under challenge. At any rate we see no error

or perversity in that finding of the High Court to warrant

interference. It is common ground that the land appurtenant

to the bungalow had been utilised by the Union of India for

construction of barracks. The entire extent of 2.792 acres of

of land including the one under the barracks could,

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therefore, be taken over pursuant to the resumption order

which was never assailed and had thereby attained finality.

Such being the position, the High Court was right in holding

that possession of the above extent of land could not be

taken away from the Union of India for delivery to the

decree-holders. That is because after the resumption of the

property and the taking over of the possession by the Union

of India in exercise of its rights as the paramount title

holder, it was no longer holding the same as a tenant so as

to be answerable to the petitioners as its landlords. The

Union of India was on the contrary holding the resumed

property in its own right and in a capacity that was different

from the one in which it had suffered the decree for eviction.

This was a significant change in the circumstances in which

the decree was passed rendering it inexecutable.

10.So also the question whether the grant of land was old

or new has in our opinion been correctly answered by the

High Court. There is nothing before us nor was any serious

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attempt made by learned counsel appearing for the

appellant to demonstrate that the finding of the High Court

in regard to the said question suffered from any error or

perversity. Similarly, the question whether the objections

filed by the respondent-judgment debtor were barred by

limitation should also not detain us, for we endorse the view

taken by the High Court that such objections could not be

ignored or rejected on the ground that the same were filed

beyond the period of limitation.

11.That leaves us with the question whether the decree is

executable qua the main bungalow itself. We must to the

credit of the respondents mention that the executability of

the decree qua the main bungalow was not assailed or

questioned on behalf of the respondents. As a matter of

fact, the possession of the main bungalow appears to have

been delivered to the decree-holders, which the decree-

holders will be entitled to retain, till such time the Union of

India issues any further orders of resumption of the property

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in exercise of powers vested in it under the relevant

provisions of law.

12.In the result these appeals fail and are hereby

dismissed but in the circumstances without any orders as to

costs.

………… ……………

……J.

(MARKANDEY KATJU)

………… ……………

……J.

New Delhi (T.S. THAKUR)

November 30, 2010

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