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Writ – Civil Suit by Auction Purchaser – Inter pleader suit by Tenant against the owner who purchased the property under court auction sale and also Union of India who claims to be owner under a Grant – who are entitled for rents is the question to be decided – High court held that since there are complicated issues writ not maintainable – with out evicting the auction purchaser due to process of law – Union of India not entitled for any rent from inter pleader suit plaintiff/ tenant and dismissed the writ and decreed the inter pleader suit in second appeal – Apex court held that 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. 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. 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 be found so as to warrant our interference. Accordingly, the civil appeal will have to be dismissed which we hereby do.The stand of the cantonment authority in the 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. 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.= CIVIL APPEAL NO. 2147 OF 2006 PURSHOTTAM DAS TANDON DEAD BY LRS. … APPELLANT (S) VERSUS MILITARY ESTATE OFFICER & ORS. …RESPONDENT (S) = 2014- Aug. Part – http://judis.nic.in/supremecourt/filename=41825

Writ  – Civil Suit by Auction Purchaser – Inter pleader suit by Tenant against the owner who purchased the property under court auction sale and also Union of India who claims to be owner under a Grant  – who are entitled for rents is the question to be decided – High court held that since there are complicated issues writ not maintainable – with out evicting the auction purchaser due to process of law – Union of India not entitled for any rent from inter pleader suit plaintiff/ tenant and dismissed the writ and decreed the inter pleader suit in second appeal – Apex court held that 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. 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.  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  be  found  so  as  to warrant our interference.  Accordingly, the civil appeal  will  have  to  be

dismissed which we hereby do.The stand of the cantonment authority in the 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. 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.=

 

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.=

The Union of India issued a  resumption  notice  dated  26.12.1968  in

respect of the property in question.  The 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.=

 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

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.=

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 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 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  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 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.

2014- Aug. Part – http://judis.nic.in/supremecourt/filename=41825

RANJAN GOGOI, M.Y. EQBAL

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