PURSHOTTAM DAS TANDON DEAD BY LRS.versusMILITARY ESTATE OFFICER & ORS.

                  [2014] 7 S.C.R. 1085


      PURSHOTTAM DAS 1ANDON DEAD BY LRS.                              A
                                v.
            MILITARY ESTATE OFFICER & ORS.
               (Civil Appeal No. 2147 of 2006)

                      AUGUST 13, 2014
                                                                      B
         [RANJAN GOGOi AND M.Y. EQBAL, JJ.]

     Government grants - Property purchased by
predecessors of the appellant in auction - Resumption notice
by Union of India leading to writ petition - Case of UO/ that         C
the land on which the property stood was the subject of old
grant under which a right of resumption as also title to the land
vested in the Union; and only the building was conveyed to
the predecessors of the appellant - High Court holding that
the parties to move to civil court for adjudication of title - Suit   D
seeking eviction of tenant and sub-tenant by appellant -
Notice by UO/ demanding rent from occupants - Inter-pleader
suit by one of the tenant - Decree thero1.: that appellant
entitled to receive rent in respect of the p:uperty, upheld by
Supreme Court - Writ petition by appellant seeking mutation           E
of property-bung/ow as owners - Dismissal of, holding that in
terms of the order in earlier writ petition, dispute required
adjudication in a civil suit - Application by the appellant
seeking sanction of plan to raise construction - Rejection of,
in view of the resumption order - Aggrieved, appellant filing         F
another writ petition asserting his ownership of the property -
Disposed of, holding that in the inter-pleader suit it was
already decided that the property belonged to the appellant
and the question of title to the property had become res
judicata - Order challenged before Supreme Court - Matter             G
remanded back to the High Cou,1 on the issue of res judicata
- High Court holding that the decree in the inter-pleader suit
that appellant to be entitled to receive the rent, would not
operate as a res judicata so as to confer any finality to the
                               1085                                   H
   1086     SUPREME COURT REPORTS                [2014] 7 S.C.R.

A issue of title - Parties left with the option of adjudication of
  title in a suit for declaration - On appeal, held: Subject matter
  of the two proceedings-inter-pleader suit and the appeals
  arising therefrom and the writ petitions filed by appellant not
  directly and substantially the same so as to attract the
B principle of res judicata enshrined in s. 11 CPC - Having
  regard to the nature of the dispute and the highly contentious
  issue raised, and the earlier order in the writ petition, no
  infirmity in the impugned order, so as to warrant interference
  - Code of Civil Procedure, 1908 - s. 11 - Res judicata -
c Cantonment Act, 1924 - ss. 181, 274.
       The grandfather of the appellant purchased the
  property in a court auction in the year 1848. The Union
  of India issued a resumption notice in respect of the said
  property in the year 1968. The appellant filed a writ
D petition. The Union of India contended that the land on
  which the property stood was the subject of old grant
  under which a right of resumption as also title to the land
  vested in the Union; and that it was only the building
  which was conveyed to the predecessors of the appellant
E and the same could always be resumed subject to
  payment of compensation to be assessed on the cost of
  the building. The High Court relegated the parties to the
  remedy of a civil suit being highly disputed question of
  fact relating to title. The appellant filed a suit seeking
F eviction of the tenants and sub-tenants in the property.
  The Union of India served notice upon the said two
  occupants demanding rent. One of the tenant filed an
  inter-pleader suit. The trial court held that the appellant
  was entitled to receive rent. The said order was upheld
G in the second appeal as also special leave petition. The
  appellant filed W.P. No.13353 of 1992 to mutate the name
  of the petitioners as owners of Bungalow. The writ
  petition was dismissed on 07.01.2000 holding that the
  dispute required resolution in a regular civil suit in terms
H of the earlier order in the writ petition. The appellant also
  PURSHOTTAM DAS TANDON DEAD BY LRS. v.               1087
         MILITARY ESTATE OFFICER
'filed an application before the competent authority u/s . .,·A
181 of the Cantonment Act, 1924 seeking sanction of plan
to raise construction and the same was rejected. The
!appellant then filed W.P. No.28558/02 asserting his
;ownership of the property-bunglow. The High Court
'disposed of the petition requiring the appellant to file B _
 appeal u/s. 274 of the Cantonment Act against the order
 of rejection. The High Court held that in the inter-pleader
suit it was already decided that the' property belonged to
 the appellant and the question of title to the property had
 become res judicata. Thereafter, in the appeal filed by__the c
 Cantonment Board, this Court remanded the matter to the
 High Court in view of the apparent inconsistency in the
 two orders of the High Court on issue of-res judicata. The
 High Court dismissed the writ petition holding that t11e
 dec~ee passed in the inter-pleader suit holding the D
 appellant to be entitled to receive the rent in respect iOf
 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; and the relief claimed therein would be
 adjudicated in a suit for declaration of title. Hence, the E
 instant appeal.
    Dismissing the appeal, the Court
     HELD: 1.1. The conclusion of the High Court !n the
impugned order appear to be based on three principal
grounds. Firstly, the High Court held that the decree in       F
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 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.        G
In this regard the High Court specifically noticed that in
the judgment rendered in the Second Appeal, 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   H
   1088     SUPREME COURT REPORTS             [2014] 7 S.C.R.

A 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
B declaring title in an inter-pleader suit filed by a tenant is
  barred under the provisions of Order XXXV Rule 5 CPC.
  [Para 12] [1094-F-H; 1095-A-B]
       1.2. A reading of the judgment passed in Second
  Appeal clearly indicates that while deciding· on the
C entitlement of the appellant to receive rent in respect of
  the property, the High Court had held that without taking
  recourse to legal proceedings tq evict the appellants from
  the property, the Union of India could not have the
  demanded rent in respect thereof. [Para 13] [1095-8-C]
D
       1.3. 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 arisint,
  therefrom clearly pertains to the entitlement of the
E 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
F 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.
G [Para 14) [1095-F-H; 1096-A]
       1.4. 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 the writ petition,
H the High Court had dismissed the writ petitions leaving
  PURSHOTTAM DAS TANDON DEAD BY LRS. v.                 1089
         MILITARY ESTATE OFFICER
it open for the appellant to avail the remedy of civil suit     A
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 interference. [Para 15) [1096-B-C]

     1.5. Though the litigation between the parties in the      8
instant case has been going on for nearly five decades
there is some lack of clarity whether it is title to Bungalow
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         C
resumption notice leading to writ petition No. 175of1969
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 Writ Petition No. 13353 of 1992 and Civil
Misc. Writ Petition No.28558 of 2002. The same were
instituted after rejection of the appellant's claims made in    D
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 Writ Petition No. 175of1969 was
based on the terms of the old grant issued by the               E
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 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        F
subject to payment of compensation for the cost of the
building and not as a lease of the land itself. [Para 16)
(1096-D-H; 1097 -A-BJ

    Chief Executive Officer Vs. Surendra Kumar Vakil & Ors.     G
1999 ( 2 ) SCR 118 : (1999) 3 sec 555 and Union of India
& Ors. Vs. Kam/a Verma (2010) 13 SCC 511 - relied on.
                     Case Law Reference:
    1999 ( 2) SCR 118           Relied on         Para 16       H
    1090     SUPREME COURT REPORTS                [2014) 7 S.C.R.


A       (2010) 13 sec s11            Relied on          Para 16
           CIVIL APPELLATE JURISDICTION : Civil Appeal No ..
    2147 of 2006.

        From the Judgment and Order dated 27.05.2005 of the
B High Court of Judicature at Allahabad in Civil Misc. Writ
  Petition Nos. 13353 of 1992 and 28558 of 2002

        S. R. Singh Ankur Yadav, Sushant Kumar, Ujjawal Pandey,
    Shree Pal Singh for the Appellants.
c       R. S. Suri, S. Wasim A. Qadri, Sunita Rao, B. V. Bairam
    Das (for Anil Katiyar) for the Respondents.

        The Judgment of the Court was delivered by ··

o       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
E dismissed both the writ petitions filed by the appellant and has
  further held that the entitlement of the appellant to the reliefs
  claimed therein will have to be adjudicated in a suit for
  declaration of title.

          2. The elaborate facts will necessarily have to be recited
F   for the purposes of bringir19 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.

G      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
H 25.11.1848. The auction sale was confirmed by the Court on
 PURSHOTTAM DAS TANDON DEAD BY LRS. v. 1091
 MILITARY ESTATE OFFICER [RANJAN GOGOi, J.]
27.12.1848. The possession of the property of the                   A
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
26.12.1 ~81n respect of the property in question. The appellant
                                                                    8
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      C
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          D
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       E
to the predecessors-in-interest of the appellant.

     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    F
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          G
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
                                                                    H
    1092     SUPREME COURT REPORTS                 [2014] 7 S.C.R.

A 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. 161of1973 in the Court
B 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
c 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.

D        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
E   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
F   accommodation thereon for economically weaker sections.
    What happened thereafter is not very relevant except that on
    21.04.1992 Oivil 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
G   owners of Bungalow /\Jo 29 ChaiU1am Lines, Allahabad and
    also to accept the pr0~erty 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
H    required resolution in a regular civil suit which could be filed
 PURSHOTTAM DAS TANDON DEAD BY LRS. v. 1093
 MILITARY ESTATE OFFICER [RANJAN GOGOi, J.]
by either of the parties in terms of the judgment of the High          A
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              B
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.

      8. It appears that the appellant had also filed an application   C
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              D
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                 E
appurtenant land the Union of lndta 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           F
disposed of. However, the High Court in its aforesaid order
dated 05.03.2003 recorded 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      F
decision was upheld by this Court on 22.02. i 984. On the s::iirt
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.
                                                                       H
    1094     SUPREME COURT REPORTS                 [20141 1   s.'c.R.
A      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
B orders of the High Court on the issue of res judicata. The
  present i[llpugned 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.

      10. We have heard Shri S.R .. Singh, learned senior
C 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
D 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 t~ 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
E 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 ~foresaid conclusion of the High Court appear to
   be based on three principal grounds. Firstly, the High Court
 F held th.at 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 the
   property and in fact the question of title to the property was
   neither in issue in the said proceedings nor was the same
 G 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
.H not conclusively determined in the said inter-pleader suit and
 PURSHOTTAM DAS TANDON DEAD BY LRS. v. 1095
 MILITARY ESTATE OFFICER [RANJAN GOGOi, J.)
the proceedings arising therefrom. Alternatively, the High Court    A
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.                              B

      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 without
taking recourse to legal proceedings to evict the appellants from   C
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 :
                                                                    D
     "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            E
     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. F
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 G
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, H
    1096     SUPREME COURT REPORTS                 [2014] 7 S.C.R.


A 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.
B
       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
C 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.

D       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
E 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
F 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
G 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
H
  PURSHOTTAM DAS TANDON DEAD BY LRS. v. 1097
  MILITARY ESTATE OFFICER [RANJAN GOGOi, J.]
and Union of India & Ors. Vs. Kam/a Verma 2 and have been          A
understood to be conveying a lease of the building standing on
the cantonment land with the power of resumption in the
cantonment--autb9rity subject to payment of compensation for
the cost of the building and not as a lease of the land itself.
                                                                   B
     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.
                                                                   c
Nidhi Jain                                     Appeal dismissed.