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SUPREME COURT OF INDIA
RANJAN GOGOI AND M.Y. EQBAL, JJ.
PURSHOTTAM DAS TANDON DEAD BY LRS. – APPELLANT
VERSUS
MILITARY ESTATE OFFICER & ORS. – RESPONDENT
CIVIL APPEAL NO. 2147 OF 2006
Decided on: 13-08-2014
Facts of the Case
Present Appeal has been filed against common order passed by High Court dismissing two writ petitions filed by appellant and holding that entitlement of appellant to reliefs claimed therein would have to be adjudicated in a suit for declaration of title.
Findings of the Court
The Supreme Court held that subject matter of the inter – pleader suit and the proceedings arising therefrom clearly pertained 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 were, 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. Having regard to 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, 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, could be found so as to warrant interference. Appeal was dismissed.
Result – Appeal dismissed.
JUDGMENT : -
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 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 for the purposes of bringing 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.
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 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.
4. 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.
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 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 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 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 interplead 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.
7. It appears that on the stre
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