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.
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