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 3rd August, 2002 passed by the  

District Judge, Agra in revision and that dated 24th 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  23rd  

September, 1970 and the possession thereof taken over on  

6th 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 3rd August,  

1946.  A sale deed was accordingly executed in respect of  

the property on 11th 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 25th 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 8th 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 24th September  

1970 the Union of India resumed the aforementioned 0.771  

acres  of  land  underlying  the  bungalow,  for  which  a  

resumption  notice  dated  2nd 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 23rd 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 6th 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 23rd September, 1970  

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

the competent authority on 6th 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  23rd September,  1970  and  taking  over  of  

possession  on  6th 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 23rd 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 6th 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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