Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2147 OF 2006

PURSHOTTAM DAS TANDON DEAD BY

LRS. … APPELLANT (S)

VERSUS

MILITARY ESTATE OFFICER & ORS. …RESPONDENT (S)

J U D G M E N T

RANJAN GOGOI, J.

1.The challenge in this appeal is against the common

order dated 27.05.2005 passed by the High Court of

Judicature at Allahabad in Civil Misc. Writ Petition No. 13353

of 1992 and Civil Misc. Writ Petition No. 28558 of 2002. The

High Court, by the impugned order, has dismissed both the

writ petitions filed by the appellant and has further held that

the entitlement of the appellant to the reliefs claimed

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Page 2 therein will have to be adjudicated in a suit for declaration of

title.

2.The elaborate facts will necessarily have to be recited

for the purposes of bringing out the controversy involved

and also to embark upon a scrutiny of the correctness of the

impugned conclusions recorded by the High Court in the

order under challenge.

3.The suit property is Bungalow No. 29, Chaitham Lines,

Allahabad covered by Survey No. 143, Old Cantonment,

Allahabad. There is no dispute that late Lala Manohar Lal

grandfather of the present appellant had purchased the said

property for a sum of Rs. 2900/- in a Court auction held on

25.11.1848. The auction sale was confirmed by the Court on

27.12.1848. The possession of the property of the

predecessors-in-interest of the appellant and thereafter of

the appellant is not in dispute.

4.The Union of India issued a resumption notice dated

26.12.1968 in respect of the property in question. The

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Page 3 appellant instituted Civil Misc. Writ Petition No. 175 of 1969

before the Allahabad High Court contending that the

property was purchased by his predecessors-in-interest and

had fallen to his share in a family settlement. The Union of

India sought to resist the claim of the appellant by asserting

that the land on which the property stood was the subject of

old grant dated 12.09.1836 issued by the Governor General

in Council under which a right of resumption was vested in

the Union. It was further contended on behalf of the Union

of India that under the clauses of the aforesaid grant it was

only the building which was conveyed to the predecessors

of the appellant and the same could always be resumed

subject to payment of compensation to be assessed on the

cost of the building. It appears that the Union of India had

also asserted that, in any event, under the terms of the old

grant title to the land had remained with the Union and was

not and in fact could not have been transferred to the

predecessors-in-interest of the appellant.

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Page 4 5.The writ petition was disposed of by the Allahabad High

Court on 06.07.1970 by holding that as highly disputed

questions of fact relating to title had arisen such issues

would not be appropriate for adjudication in the exercise of

the writ jurisdiction. The parties, therefore, were relegated

to the remedy of a civil suit. However, in the said

proceeding an undertaking was made on behalf of the Union

of India that the appellant would not be evicted from the

property except in accordance with law.

6.Around this time the appellant instituted Civil Suit No.

147 of 1971 in the Court of the Additional District Judge,

Allahabad seeking eviction of Allahabad Polytechnic and

Harijan Sewak Sangh who were the tenants and sub-tenants

in the property. The Union of India served notice upon the

aforesaid two occupants of the property demanding rent

claiming to be the owner thereof. Allahabad Polytechnic,

therefore, filed an inter-pleader suit No. 161 of 1973 in the

Court of the Civil Judge, Allahabad impleading the appellant

and the Union of India as Defendants 1 and 2 in the suit. In

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Page 5 the said suit it was prayed that the defendants may inter-

plead so that the right to collect rent of the property in

dispute could be determined. In Second Appeal No.2866

arising out of the aforesaid suit, the decree of the learned

trial court that the appellant and not the Union of India was

entitled to receive rent was affirmed. The said decree was,

in turn, affirmed by this Court on 22.02.1984 by dismissal of

the special leave petition filed by the Union of India.

7.It appears that on the strength of the aforesaid order

passed by this Court the appellant moved an application

before the Executive Officer of the Cantonment Board,

Allahabad, for mutation of his name in respect of the

property in question and for permission to deposit the

property tax etc. The aforesaid application was filed on the

claim that the appellant is the owner of the property. It also

appears that the appellant had filed an application dated

08.04.1977 seeking exemption of excess land under the

provisions of the U.P. Urban Land Holding Ceiling Act, 1932

on the ground that he intended to raise accommodation

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Page 6 thereon for economically weaker sections. What happened

thereafter is not very relevant except that on 21.04.1992

Civil Misc. Writ Petition No. 13353 of 1992 was filed by the

appellant for “issue a writ of mandamus directing the

respondents to mutate the name of the petitioners as

owners of Bungalow No. 29 Chaitham Lines, Allahabad and

also to accept the property tax.” The aforesaid writ petition

was dismissed on 07.01.2000 by holding that in view of the

judgment dated 6.7.1970 passed in Civil Misc. Writ Petition

No. 175 of 1969 which was binding on the parties the

dispute required resolution in a regular civil suit which could

be filed by either of the parties in terms of the judgment of

the High Court dated 06.07.1970. The issue as to whether

the judgment of the High Court in Second Appeal No. 2866 of

1978 arising out of the inter-pleader suit would operate as a

res judicata on the question of title to the property was not

decided by the High Court. The aforesaid judgment and

order of the High Court dated 07.01.2000 was the subject

matter of challenge before this Court in Civil Appeal No.

7284 of 2001 at the instance of the appellant.

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Page 7 8.It appears that the appellant had also filed an

application before the competent authority under Section

181 of the Cantonment Act, 1924 for sanction of plans for

raising further additional construction on the land. The said

application was rejected on 14.03.2002. The order of

rejection available in the original records of the case

indicates that the rejection was made in view of the

resumption order dated 26.12.1968 and also on account of

objections of the cantonment authority with regard to the

ownership of the appellant to the land. Aggrieved, the

appellant filed Civil Misc. Writ Petition No. 28558 of 2002. In

the said writ petition while the appellant asserted his

ownership of the property i.e. Bungalow as well as the

appurtenant land the Union of India denied such ownership.

The High Court of Allahabad by its order dated 05.03.2003

disposed of the writ petition by requiring the appeal filed by

the appellant under Section 274 of the Cantonment Act

against the order of rejection dated 14.03.2002 which was

pending, to be disposed of. However, the High Court in its

aforesaid order dated 05.03.2003 recorded

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Page 8 findings/observations to the effect that in Second Appeal No.

2866 of 1978, arising out of the inter-pleader suit, the

property in dispute has already been held by the High Court

to be belonging to the appellant and that the said decision

was upheld by this Court on 22.02.1984. On the said basis

the High Court recorded its conclusion that the question of

title to the property had become res judicata and cannot be

raked up again.

9.The aforesaid judgment dated 05.03.2003 was

challenged before this Court by the Cantonment Board in

Civil Appeal No. 6637 of 2003. Both the appeals were

disposed of by this Court on 19.12.2003 by remanding the

matter to the High court in view of the apparent

inconsistency in the two orders of the High Court on the

issue of res judicata. The present impugned order dated

27.05.2005 of the High Court has been passed pursuant to

the aforesaid remand made by this court by its order dated

19.12.2003.

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Page 9 10.We have heard Shri S.R. Singh, learned senior counsel

for the appellant and Shri R.S. Suri, learned senior counsel

for the respondents.

11.The High Court, by the impugned order, has taken the

view that the judgment and decree passed in the inter-

pleader suit holding the appellant to be entitled to receive

the rent in respect of the property would not operate as a

res judicata so as to confer any finality to the issue of title in

respect of the property. Thereafter, taking into account the

judgment dated 06.07.1970 rendered by the High Court in

Civil Misc. Writ Petition No. 175 of 1969, the High Court left

the parties with the option of moving the civil court for

adjudication of title. Accordingly, the writ petitions were

dismissed.

12.The aforesaid conclusion of the High Court appear to be

based on three principal grounds. Firstly, the High Court

held that the decree in the proceedings arising out of the

inter-pleader suit as affirmed by this Court merely decided

the entitlement of the appellant to receive rent in respect of

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Page 10 the property and in fact the question of title to the property

was neither in issue in the said proceedings nor was the

same decided. In this regard the High Court specifically

noticed that in the judgment rendered in the Second Appeal

No. 2866 of 1978 the High Court had specifically recognized

the right of the Union of India to take out legal proceedings

for eviction of the appellant thereby clearly indicating that

the issue of title was not conclusively determined in the said

inter-pleader suit and the proceedings arising therefrom.

Alternatively, the High Court held that if the said decree is to

be understood as one of determination of title to the

property the same would be without jurisdiction as a decree

declaring title in an inter-pleader suit filed by a tenant is

barred under the provisions of Order XXXV Rule 5 of the

Code of Civil Procedure.

13.A reading of the judgment dated 27.11.1981 passed in

Second Appeal No. 2866 of 1978 clearly indicates that while

deciding on the entitlement of the appellant to receive rent

in respect of the property the High Court had held that

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Page 11 without taking recourse to legal proceedings to evict the

appellants from the property, the Union of India could not

have the demanded rent in respect thereof. In fact, in the

aforesaid judgment dated 27.11.1981 passed in Second

Appeal No.2866 of 1978 it was clearly observed that :

“The Union of India should first have taken

proceedings for ejectment of the appellant and

then alone after success in the ejectment suit

should have been a demand for rent and without

that the appellant’s right to rent could not be

disturbed. This also leads to the conclusion that it

is the appellant to whom the rent is payable by

the Allahabad Polytechnic unless the appellant is

evicted by due process of law.”

14.From the above, it is abundantly clear that the issue of

title was kept open in the proceedings of the Second Appeal.

The subject matter of the inter-pleader suit and the

proceedings arising therefrom clearly pertains to the

entitlement of the presently contesting parties to receive

rent in respect of the property in question. On the other

hand, in the writ petitions, the appellant, claiming

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Page 12 ownership, had sought mutation, as a owner, in the

cantonment records and also the permission to raise

construction, a right flowing from the incidence of ownership

of the land. The subject matter of the two proceedings i.e.

inter-pleader suit and the appeals arising therefrom and the

writ petitions filed by the appellant are, therefore, not

directly and substantially the same so as to attract the

principle of res judicata enshrined in Section 11 of the Code

of Civil Procedure. Certainty of the above principle would

not require us to trace the elaborate case law readily

available on the subject.

15.Having regard to the nature of the dispute and the

highly contentious issue raised, if in view of the earlier order

dated 06.07.1970 passed in Civil Misc. Writ Petition No.175

of 1969, the High Court had dismissed the Writ Petitions

leaving it open for the appellant to avail the remedy of civil

suit to get the title to the property adjudicated by a

competent civil court, no fault, muchless any infirmity, can

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Page 13 be found so as to warrant our interference. Accordingly, the

civil appeal will have to be dismissed which we hereby do.

16.Before parting, we deem it necessary to mention that

though the litigation between the parties in the present case

has been going on for nearly five decades there is some lack

of clarity whether it is title to Bungalow No.29, Chaitham

Lines, Allahabad or is it title to the land over which the said

property is located that has been the bone of contention

between the parties over this great expanse of time.

Though the resumption notice dated 26.12.1968 leading to

Civil Misc. Writ Petition No. 175 of 1969 was in respect of the

bungalow, the subsequent claim of the appellants seem to

be to the land itself in view of the reliefs sought in the Civil

Misc. Writ Petition No. 13353 of 1992 and Civil Misc. Writ

Petition No.28558 of 2002. The same, as noticed, were

instituted after rejection of the appellant’s claims made in

the application/representations filed before the cantonment

authority for reliefs that were based on claims of ownership

of the land. The stand of the cantonment authority in the

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Page 14 Civil Misc. Writ Petition No.175 of 1969, noted by us, is based

on the terms of the old grant issued by the Governor General

in Council on 12.09.1836. The legal effect of the terms of

the said grant has been dealt with by this Court in Chief

Executive Officer Vs. Surendra Kumar Vakil & Ors.

1

and

Union of India & Ors. Vs. Kamla Verma

2

and have been

understood to be conveying a lease of the building standing

on the cantonment land with the power of resumption in the

cantonment authority subject to payment of compensation

for the cost of the building and not as a lease of the land

itself.

17.The above position has been emphasised for being kept

in mind while dealing with all possible future litigations

concerning the property in question without, of course,

expressing any opinion on the merits of the

claims/contention of any of the parties.

....………….…………………J.

[RANJAN GOGOI]

1

(1999) 3 SCC 555

2

(2010) 13 SCC 511

14

Page 15 …………....……………………J.

[M. Y. EQBAL]

NEW DELHI,

AUGUST 13, 2014.

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