Kumari Vs. VS  Insc 82 (14 February 2001)
Khare & S.N. Variava. S. N. Variava, J.
Appeal (civil) 1265-66 of 2001
granted in S.L.P. (C) Nos. 22436-22437 of 1997.
Appeals can be disposed off by this common Judgment.
must be first mentioned that these Appeals were on board along with three other
Civil Appeals. After arguments on behalf of the Appellants had taken place
Civil Appeal No.3221 of 1991, Civil Appeal No. 3503 of 1991 and Civil Appeal
No. 4133 of 1991 were withdrawn by the Appellants therein.
these Appeals the Appellants have land with bungalows in Ambala Cantonment
area. As is being pointed out in greater detail hereafter, the cases had, till
this stage, proceeded on the footing that the land was granted to the
predecessors of these Appellants on "old grant terms".
Appeals therefore are fully covered by the decision of this Court in the case
of Chief Executive Officer vs. Surendra Kumar Vakil reported in (1999) 3 SCC
arguments are considered facts in these Appeals need to be noted. In Civil
Appeal Nos. 917-918 of 1998 Notice of Resumption was given on 28th September, 1973. A Suit bearing No. 280 of 1975 was
filed in the Court of Senior Sub-Judge, Ambala, wherein the Order of resumption
was challenged. In the Suit it was, inter alia, averred as follows:
That the order of resumption of the above bungalow is illegal, invalid, malafide,
whimsical, unconstitutional and in-effective against the rights of the
plaintiffs, inter alia, on the following grounds:- (a) xxx xxx xxx (b) That in
the first instance, it is wholly incorrect that the site on which the building
is standing is an old grant as alleged by the defendant No. 2. However, even
notice of assumption, which the plaintiffs do not admit, in that event too, the
Government has no right to resume the property in the manner as alleged. "The
Respondents in the Written Statement contended that the land was on old grant
terms and that they were entitled to resume. The trial Judge, inter alia,
raised an issue to the following effect:
Whether the impugned resumption order is illegal and in operative as alleged in
para no. 4 of the plaint OPP." Strictly speaking a specific and separate Issue
on this aspect would have had to be raised. Such a specific Issue was not
raised as, for reasons set out hereafter, it is clear that this contention raised
in para 4(b) was not being pressed. However, it is arguable that Issue No. 4 as
it is framed covered, amongst others, the ground of challenge on the basis that
the land on which the building was standing was not on old grant basis. Parties
then led evidence. In these Appeals the Appellants have not relied on the
evidence led by them. But the original record is before the Court.
could not be shown to us that Plaintiff/Appellant led any evidence claiming
ownership of land in question or denying title of Respondents. Admittedly
documents shown to the Court were not tendered as Exhibits. On the other hand
Respondents tendered and got marked as Exhibits, an admission in writing by
Appellants predecessors that the land was on old grant terms, a copy of GGO No.
179 of 12th September,
1836 and the Register
of Land Records. Parties then argued their respective cases. Ultimately, the
Suit was decreed by a Judgment dated 27th November, 1978. The Judgment sets out the
submissions which have been made under the aforesaid Issue No. 1. In the
submissions, as have been reproduced in the Judgment, there is no submission to
the effect that the land was not under the old grant basis and/or that the
Respondents were not the owners of the land.
entire submission, under Issue No. 1, has been on the basis that the Appellants
had not been heard before the Notice of Resumption was issued and/or that
compensation had been fixed in an arbitrary manner. The Court has accepted this
submission and held that, without fixation of compensation and an opportunity
of being heard, an order of resumption could not be passed. We have perused the
entire Judgment. In the entire Judgment there is no reference to any submission
that the land was not under an old grant and/or that the Respondents were not
the owners of the land.
though, the Suit has been decreed and a permanent injunction passed in favour
of the Appellants, the Court was careful enough to hold as follows: "In
view of the evidence, reasons and findings set out above, a decree for
declaration is passed in favour of the plaintiffs and against the defendants
with costs, that the resumption order is illegal, void and ineffective and is
not binding upon the plaintiffs and a decree for permanent injunction is also
passed, restraining the defendants from dispossessing the plaintiffs from the
property in dispute except in due course of law." (Emphasis supplied) It
is thus to be seen that the even while decreeing the Suit the Court has held
that the Respondents could dispossess the Plaintiffs by following due course of
question of dispossessing the Plaintiffs/Appellants would not arise if the
Appellants were the owners of the land and the land was not under an old grant.
This clearly shows that point was not pressed before the Trial Court and/or
that if this point was pressed it has not been held in favour of Plaintiff/Appellant.
If the point was pressed then it must be deemed to have been decided against
the Appellant as Court has permitted dispossession by following due course of
Respondents then filed an Appeal before the District Judge, Ambala. No cross
Appeal was filed by the Appellants.
District Judge dismissed the Appeal on 6th September, 1979. We have read the Judgment of the
also there is no claim that the land was not under an old grant. The District
Judge has also in the final paragraph of his Judgment held as follows:
Lest there be any misunderstanding it is clarified that neither the assailed
order dated 27.11.1978 of the learned trial Court nor the judgment in this
appeal would in any way stand in the way of Union of India initiating
proceedings for resumption of the disputed land after compliance of the
statutory formalities." This clarification could only have been issued,
provided it was an admitted position that the land belonged to the Union of
India and that they could resume it by following due process of law. If there
had been a claim to the ownership of the land by the Appellants such
clarification could not have been issued.
Respondents then filed a Second Appeal before the High Court of Punjab & Haryana
at Chandigarh. During the pendency of this
Appeal, this Court in the case of Union of India vs. Harish Chand Anand
reported in 1995 Supp. (4) SCC 113, held that the Respondents were entitled to
resume the land without prior determination of the amount of the structure.
This Court held that the view that it was a condition precedent for the
Respondents to give notice to the parties concerned, determine the compensation
and then only resume the property was not correct. It was held that the view
taken by the Delhi High Court in the case of Raj Singh vs. Union of India
reported in AIR 1973 Delhi 169, was a correct view and that
the Government could resume the land merely by giving one month's notice. It
was held that the amount may have to be determined after giving an opportunity
but that this could be done thereafter. As this Court had now finally laid down
the law and as the Judgment of the Trial Court and the first Appellate Court
were only on the basis that prior opportunity of being heard had not been
given, the High Court by its Judgment dated 7th November, 1997 reversed the
Judgment of the Trial Court as well as the first Appellate Court and dismissed
Judgment the High Court observed as follows:
is not in dispute that the plaintiffs are in possession of the property in
dispute on what are known as 'old grant' terms. The terms are contained in
order No.179 of 12-12-1836 issued by the Governor General of India in Council and have been produced
on record." Thus it is to be seen that before the High Court it had not
been disputed that the land was under an old grant term and that the terms of
the old grant had been produced on record.
this stage, it must be mentioned that this Court again had occasion to consider
whether the view taken by the Delhi High Court in Raj Singh's case (supra) was
Court has, in the case of Union of India & Anr. vs. Tek Chand and ors. reported
in (1999) 3 SCC 565, again approved the view in Raj Singh's case.
Appellants were now non-suited on the basis of law finally laid down by this
Court, they filed on 10th December, 1997 a Review Petition. In this Review
Petition, for the first time, they sought to raise a point that the land was
not under the old grant terms. For the first time, after all these years, they
sought to rely on certain documents and seek a clarification from the High
Court that its comments to the effect that "it was not in dispute that the
land was on old grant terms" were not correct and that the same should be
deleted. It was now sought to be contended that they had never admitted that
the land was on old grant terms. This Review Petition came to be dismissed on 24th December, 1997. Thus the High Court has confirmed
that at the time when the original Appeal was argued it was not in dispute that
the land was under old grant terms.
Appeals Nos. 917-918 of 1998 are filed against the Judgment dated 10th November, 1997 and the order dated 24th December, 1997.
Civil Appeals arising out of SLP (C) Nos. 22436-22437 of 1997 also the bungalow
and land are in Ambala Cantonment. The notice of resumption was given on 30th July, 1971. The Suit was filed in the Court of
the Sub-Judge, Ist Class, Ambala. In this Suit it was contended that it was not
proved that the land was on old grant terms.
also urged that the terms of the old grant did not permit resumption of land.
However, no evidence was led to prove that plaintiffs were owners.
Plaintiff/Appellant and his witnesses did not depose that land did not belong
to the Respondents. The Respondents had brought on record and got exhibited an
admission in writing, by the predecessors of the Appellants, that the land was
on old grant terms, the GGO No. 179 dated 12th September, 1836 and the Register
of Land Records. In this case on the basis of evidence on record the Trial
Court dismissed the Suit.
Appellants then filed an Appeal. In the Appeal also it was contended that it
was not proved that the land was on old grant terms. The Appellate Court, after
considering the evidence, dismissed the Appeal on 3rd September, 1986. The Appellants then filed a Letters Patent Appeal
which was dismissed by the High Court on 8th July, 1997. A Review Petition was also filed
and the same was also dismissed on 7th October, 1997. Thus in this case the Appellants
have lost in all Courts. All Courts have, on evidence and facts, held against
must be mentioned that, in some other case filed by these Appellants in 1990,
an application is made calling upon the Respondents to produce the old grant
and certain other documents. In that Suit the Respondents have replied that the
original records regarding the bungalow in question and the Notification
through GGO 179 of 12th September, 1836 were applied to the Ambala Cantonment,
but that the papers showing that Ambala Cantonment was a station of the
Bangalore Army and the Notification were not available on record.
are the facts in brief. Now let us consider the submissions.
submitted that his case was not covered by the decision in Harish Chand's case
on Para 4(b) of the Plaint, which has been set out hereinabove, he submitted
that his clients had always disputed that the land was on old grant basis. He
submitted that in the Suit the old grant has not been brought on record by the
Respondents till date. He pointed out that all that had been brought on record
was the cyclostyled copy of the Governor General in Council Order No. 179 dated
12th September, 1836. He submitted that this was not the
old grant. He submitted that the grant would necessarily have to be a
registered document. He submitted that as the Respondents were contending that
the land was on old grant terms, it was for the Respondents to prove their case
by producing the old grant. Mr. Andhyarujina submitted that an admission did
not confer title. He submitted that if the Respondents were claiming to be
owners of the land it was for them to prove their ownership.
submitted that the Appellants had ample evidence to show that they were the
owners of the land. In support of this he relied upon a Sale Deed dated 21st April, 1926 between Milliam Robert Pearce and
George Erner Sysmes on the one hand and Lala Balmokand Bhalla on the other. In
this Deed it is recided that one Lewis Herbert Robbin had appointed the vendors
as his executors to administrate his affairs and that the said Lewis Herbert Roobin
had expired on 1st May,
1925. It is stated
that the Will had been proved in the High Court at Lahore and that the vendors were now the
owners of the property and were selling the same.
pointed out that the recital showed that the property was on a perpetual lease
free from rent from the Secretary of State for India in Council. He submitted that this was a registered
document which showed that the land in question was not under old grant terms.
also relied upon a Lease dated 28th August, 1936,
wherein Lala Balmokand Bhalla had leased out a dwelling house along with out
houses and land to the Secretary of State for India in Council. He submitted that if the land was on old grant
terms, then there was no question of the predecessors in title of the
Appellants leasing out the land to the Secretary of State for India in Council. Mr. Andhyarujina also
relied upon another Sale Deed dated 25th January, 1943, by which Balmokand Bhalla sold the
property to Lala Padam Pershad and Lala Mahabir Pershad.
submitted that if this land was on old grant terms, then not only the lease
would not have been executed, but such sales could not have taken place as the
old grant terms did not permit transfer without written permissions. At this
stage it must be noticed that none of these documents had been brought on
record in the Suit.
documents had been annexed for the first time, only in the Review Petition
filed in the High Court.
submitted that earlier the Himachal Pradesh High Court had, in the case of Durga
Das Sud vs. Union of India reported in AIR 1972 HP 26, taken the view that
principles of natural justice had to be complied with and that no notice of
resumption could be given unless and until compensation was first fixed after
hearing the concerned parties. He pointed out that the Allahabad High Court had
taken the same view in the case of Mohan Agarwal vs. Union of India reported in
AIR 1979 All. 170. He submitted that this was the law which prevailed. He
submitted that because of this law the trial Court took an easy way out and
decided his clients' suit only on the narrow point of principles of natural
justice not having been followed. He submitted that it has nowhere been
mentioned that his clients had not pursued or had given up their case that the
land was not on old grant terms. He submitted that merely because the Trial
Court took an easy way out and did not decide all the points urged by his
clients would be no reason for depriving the Appellants of their valuable
right. He submitted that as his clients had succeeded in the trial Court they
did not need to file an Appeal. He submitted that before the first Appellate Court
also his clients succeeded. He submitted that only in 1995, in Harish Chand's
case (supra), this Court overruled the view taken by Allahabad High Court and
the Himachal Pradesh High Court and approved a contrary view taken by the Delhi
High Court in Raj Singh's case (supra). He submitted that the trial Court and
Appellate Court decided in his clients favour only on the basis of the law then
existing. He submitted that the Courts chose to decide the case merely on one
point, even though his clients had at all stages not given up the case that the
land was not on old grant terms.
submitted that his client cannot be made to suffer because the Courts chose not
to decide other aspects.
relied upon Section 110 of the Indian Evidence Act and submitted that whenever
a question arises whether any person is the owner of anything of which he is
shown to be in possession, the burden of proving that he is not the owner is on
the person who affirms that he is not the owner. He submits that the Appellants
and their predecessors in title have been in possession since at least 1926. He
submits that the burden was entirely on the Respondents to show that they were
not the owners. He submits that the only way that the burden could have been
discharged was to produce the old grant. He submits that merely producing a
Register in which it has been mentioned that the property is on old grant terms
is not sufficient.
submits that the Register and the copy of GGO 179 of 1836 would be secondary
evidence. He submitted that such evidence would be barred under the provisions
of Section 91 of the Indian Evidence Act unless it was shown that the old grant
was not available. He submitted that in this case no evidence had been led to
show that the old grant, if there was one, had been lost or misplaced or that
it was not available. He submitted that mere production of Register or a
cyclostyled copy of the terms of the grant was no evidence at all.
support of his submission he relied upon the case of Union of India vs. Purushotam
Dass Tandon reported in 1986 (Supp) SCC 720. In this case Allahabad Polytechnic
filed an interpleader Suit as there was a dispute between the persons who had
let out the property to them and the Union of India as to the ownership of the
property. In the interpleader Suit the question was whether the person who had
let out the property to the Polytechnic was the owner or whether the Union of
India was the owner of that property. The Court held that the burden to prove
its title was on the Union of India and that it should discharge their burden
by producing the old grant. The Court held that the Court should know the terms
and the date of the grant and that an admission in a standard draft for seeking
permission of the Cantonment Board for transfer was no proof of title. However,
to be noted, this was a case where the question of title of the Union was in serious dispute.
also relied upon the authority in the case of P. T. Anklesaria vs. H. C. Vashistha
reported in AIR 1980 Bombay 9. In this case the land and house in the Pune
Cantonment were sought to be resumed. Resumption was challenged on the ground
that this was not Government land. It was held that it cannot be said that all
land in the Cantonment were Government land and there was no land of private
ownership in the Cantonment. It was held that it had first to be established
that the land belonged to the Government. It was held that even though there
may be entries in the Register of the Government, those entries raised no presumption
that they are true, until the contrary is proved. It must also be mentioned
that this matter ultimately came up before this Court. This Court has remitted
the matter back to the High Court with permission to the Union to lead proper evidence, if it so chose. This again
was a case where there was a dispute whether the land belonged to the
then submitted that there was nothing to show that the GGO No. 179 dated 12th September, 1836 applied to Ambala. He submitted
that there was nothing to show that Ambala was part of the Bengal Army. In this
behalf he referred to the reply filed by the Respondents, wherein it has been
stated as follows:
G.G.O. 179 of 12.9.1836 is applicable to all the cantonments of India. For the purpose of administration
the Bengal Army was organized in two portions the Bengal Command and the Punjab
Command. The Punjab Command included the Peshwar Cantonment. Notes on old grant
terms in Military Land Manual are being filed as ANNEXURE-R- 2." He submitted
that in support of this contention the Respondents were relying upon the
Extract from the Military Land Manual which had been annexed to the said
pointed out that in this Extract there was not a word about Ambala. He
submitted that in the Rejoinder the Appellants have denied that Ambala fell
within the Bengal Army.
Prasad on behalf of the Appellants, in Civil Appeals arising out of SLP (C)
Nos. 22436-22437 of 1997, supported Mr. Andhyarujina in his arguments. He
further submitted that in his case it was all along disputed that the land was
on old grant. He submitted that the grant had not been produced in this case.
He pointed out that in the subsequent Suit which was filed in 1990 it had been
admitted that these papers were not available. He submitted that Ambala became
a Cantonment only in 1845. Threfore, GGO 179 of 1836 could not possibly apply
to Ambala. He submitted that in his case also there was no proof to show that
the land was on old grant terms. Mr. Yogeshwar Prasad also relied on certain
Sale Deeds and a Lease Deed.
these have been produced, for the first time, in this Appeal.
other hand, Mr. Rohtagi submitted that in Civil Appeal Nos. 917-918 of 1998 it
was an admitted position that the land was on old grant terms. He submits in
Civil Appeals (arising out of SLP (C) Nos. 22436-22437 of 1997) that on facts
all Courts had held in favour of the Respondents. He points out that in both
the cases the Appellants or the predecessors had given affidavits admitting the
fact that the land was on old grant terms. He points out that the affidavits
were tendered in evidence and marked as exhibits and/or are on record. He
submits that the notices of resumption were given in 1971 and 1973. He submits
that Mr. Andhyarujina's clients have litigated for the last approximately 17
years on an admitted position that the land was on old grant terms. He submits
that it is now too late in the day and would be a travesty of justice if they
were to be permitted to resile from the admitted position and at this belated
stage be allowed to contend that the land did not belong to the Government. He
submits that Mr. Yogeshwar Prasad's clients have lost in all Courts on facts
and have not been able to show that the findings of the Courts below are not
based on evidence in that case.
pointed out, from the original records which were available in this Court, that
in Civil Appeal Nos. 917-918 of 1998 the Appellants had given evidence. He
pointed out that in the evidence there was not even a statement that the
Appellants or their predecessors were the owners of the property and/or that
the Government was not the owner of the land. He points out that in this case
the documents which have been relied upon by Mr. Andhyarujina were not part of
the record and had been surreptitiously brought on record by way of Review
Petition only after the High Court delivered the impugned Judgment. He further
points out that in the Civil Appeals (arising out of SLP (C) Nos. 22436-22437
of 1997) some documents have been produced for the first time in the Appeal and
are now sought to be relied upon. He submits that the ratios laid down, in the
cases of P. T. Anklesaria and Purushotam Dass Tandon (supra), have no
application to these cases. He submits that those were cases where it was
denied that the land was on old grant terms. He submits that in those cases the
Government was required to prove that it was the owner and had failed to do so.
He submits that in one of these cases it has been an admitted position that the
land was on old grant terms and in the other all Courts have, on facts, held in
favour of the Respondents. He further points out that, even though it was not
necessary, in Civil Appeal Nos.917-918 of 1998, the witness of the Government had
given evidence that this is a Government land. He points out that the witness
has produced the Register of land records showing that the land is on old grant
terms. He points out that the witness has produced GGO 179 dated 12th September, 1836. He submits that even in Civil
Appeals (arising out of SLP (C) Nos. 22436-22437 of 1997) the Government has
produced the Register of Land records and the GGO. He submits that in both the
cases the Government has produced written admissions of the parties or their predecessors
that the land was on old grant terms.
submits that these cases are fully covered by the authority of this Court in Surendra
Kumar Vakil's case (Supra). He further submits that an admission is a strong
piece of evidence and is relevant and admissible by virtue of Section 21 of the
Indian Evidence Act. He submits that such an admission would be binding unless
he is able to explain away such admission. He submits that neither of the
Appellants have given any explanation or even stated that the admission was
given under force or compulsion. He submits that counsel cannot for the first
time, in arguments during SLP, supply explanation on behalf of their clients.
submits that the Appellants have no case at all and the Appeals must be
have considered the rival submission. In our view Mr. Rohtagi is quite right.
It is now too late in the day for Mr. Andhyarujina's clients to take a contrary
Prasad's clients have on facts lost in all Courts below. Notice to produce
documents, given belatedly in some other case, is of no relevance so far as
these Appeals are concerned. The practice of annexing irrelevant documents and
trying to rely on them for the first time in the Appeal or in Review Petitions
in the High Court should be deprecated.
Civil Appeal Nos. 917-918 of 1998 it is clear that, at all stages, the case has
progressed on the basis that it was not disputed that the land was on old grant
terms. Of course, in the Plaint, in Para.
4(b) it had been averred that the land was not on old grant terms. However,
except for making such an averment that point has clearly not been pressed at
any stage. In evidence given by the plaintiff and/or on his behalf, there is no
statement that the land was of plaintiff ownership and/or that the land did not
belong to the Government. During trial the documents, now sought to be relied
upon by Mr. Andhyarujina were neither produced nor tendered nor got marked as
Exhibits. Were they produced Respondents would have had an opportunity to cross
examine the witnesses and show that the averments in the documents were not
correct and/or to explain how and why lease was taken by the Secretary of the
State. It is clear that the averments in para 4(b) of the Plaint were not
pressed. That they were not pressed is also clear from the Judgment of the
Trial Court. It sets out all the arguments of the parties. No submission on the
question of ownership of land by the Plaintiff and/or that the land was not on
old grant terms has been recorded. If it was argued and their submissions were
not recorded cross objections should have been filed particularly when in the
last paragraph the Trial Court clarifies that the Government could resume the
land after following due procedure of law. There could be no question of
resumption if it was being disputed that the Government was the owner of the
land. If Mr. Andhyarujina is right and the parties had not given up this
contention, then it would be worse for the Appellants inasmuch as it would then
mean that the trial Court had not accepted Plaintiffs/Appellants claim to
ownership of land and had negatived it.
Appellants never went in Appeal against the Judgment of the Trial Court. Even
when the Respondents went in Appeal no cross objections were filed. Even before
the first Appellate Court it has not been stated that their submissions were
not dealt with and/or that the portion of the Judgment permitting resumption,
after due process of law, could not have been granted. On the contrary the
first Appellate Court is also clarifying that the Government can resume after
following due process of law. This shows that even before the first Appellate
Court it was an admitted position that the Government was the owner of the land
and that the land was on old grant terms.
the Respondents went in Second Appeal before the High Court, at this stage
also, no cross objections were filed. Before the High Court it was not disputed
that the land was on old grant terms. The High Court has so recorded in its
Judgment. It is settled law that one has to proceed on basis of what has been
recorded by the Court. If any party feels aggrieved of what has been recorded
by the Courts a clarification has to be sought from that same Court. In this
case the clarification was sought, by way of Review Petition, to which as
stated above, fresh documents were purported to be attached for the first time.
The High Court has rejected the Review Petition. The High Court has thus
confirmed that at the time the Second Appeal was argued it was not disputed
that the land was on old grant terms.
Court has to go by what has been recorded in the Judgement. What is recorded in
the Judgment is supported by the conduct of the parties inasmuch as no evidence
was led to dispute the fact, no documents were tendered or marked as Exhibits
and no submissions were made on this aspect. That it was not disputed that the
land was on old grant terms is also supported by what has been recorded in the
Judgments of the trial court and the First Appellate Court. There is no
evidence that the written admissions were taken forciby and/or that they were
not binding or not correct.
are relevant evidence if not explained away.
these cases have been fought over the last 17 years on an admitted position.
Mr. Rohtagi is right that it would be a travesty of justice and would amount to
permitting parties to misuse laws delays if at this stage they are permitted to
change their stand and take contentions which are contrary to what has been the
admitted position all these years.
Civil Appeals (arising out of SLP (C) Nos.22436-22437 of 1997) all the Courts
below have given concurrent findings of fact. We see no infirmity in these
findings. The findings of fact are based on evidence before the Trial Court and
require no interference.
it is admitted that land was on old grant terms it is irrelevant to argue that
it is not shown that Ambala was under the Bengal Army. The same would be the
position when on evidence Court has held that land is on old grant terms.
only be mentioned that even in the three Appeals which were withdrawn, it had
been an admitted position that the land was on old grant terms. As that
position could not be controverted and as those parties were fully covered by Surendra
Kumar Vakil's case (supra), those Appeals were withdrawn.
these Appeals, the principles laid down in Purushotam Dass Tandon's case and P.
T. Anklesaria's case (supra) would not apply. In our view, these Appeals are
fully covered by the ratio laid down in Surendra Kumar Vakil's case. In our
view there is no infirmity in the impugned Judgments of the High Courts.
Accordingly, these Appeals are dismissed. There will, however, be no Order as