2017 Supreme(SC) 1022

SUPREME COURT OF INDIA
Kurian Joseph, A.M. Khanwilkar, JJ.
Union of India – Appellant
Versus
Vijay Krishna Uniyal (D) through L.Rs. – Respondents
CIVIL APPEAL NOS. 16949-16950 OF 2017 (Arising out of SLP (Civil) Nos.15836-15837 of 2009)
Decided On : 23-10-2017

IMPORTANT POINTS
Decision in second appeal without even adverting to the substantial questions of law framed by the Court cannot be sustained.
Decision on direct and substantial issue of ownership even though raised and considered in a suit for permanent injunction will be binding on the parties.
An issue not braised in the appeal or cross appeal cannot be considered.
Compensation can be determined even later by arbitration.

Headnote:(a) Code of Civil Procedure, 1908 – Section 100 – High Court formulating two questions of law – Not even adverting to them – Not analyzing the matter appropriately – Not proper. (Para 21)

       (b) Property law – Suit for permanent injunction claiming ownership of suit property – Courts below concurrently holding on proper analysis of documents on record that suit property was owned by Government – Thus, question of ownership was not an ancillary issue but a direct and substantial issue – Such finding will bind the parties – Will act as res judicata – Plaintiff cannot raise such issue in any subsequent proceeding. (Para 30)

       (2008) 4 SCC 594; (2000) 3 SCC 350 – Distinguished

       (c) Constitution of India – Article 136 r/w Order XLI Rule 22, Code of Civil Procedure, 1908 – Courts below dismissing plaintiff’s suit for permanent injunction – Respondent filing present appeal against High Court granting liberty to plaintiff to raise issue of ownership of suit property in subsequent proceedings – Plaintiff not filing cross appeal against dismissal of permanent injunction upholding title and power of resumption of government – Plaintiff cannot be allowed to raise the issue. (Para 33, 35)

       (1999) 7 SCC 435; (2007) 11 SCC 75; (2008) 12 SCC 1; (2014) 2 SCC 600; (2000) 7 SCC 543 – Distinguished

       (d) Property law – Old Grant falling in class B-3 – Ownership of the land remains with the Government – Grantee cannot sell the land – Grantee can only build a house/structure on the land and transfer the same – However, such transfer would require consent of Commanding Officer – Instantly, suit property covered by Old Grant of category B-3 – Held, plaintiff or his predecessor had merely possessory or occupancy rights. (Para 34)

       (2014) 16 SCC 481 – Relied upon

       1995 Supp. (4) SCC 113; (1973) 2 SCC 547; (1999) 3 SCC 555; (2010) 13 SCC 511; (2012) 7 SCC 278; (2014) 6 SCC 707; (2014) 9 SCC 344 – Referred

       (e) Property law – Grant land – Structure erected by grantee – Resumption – Compensation – Determination of – Can be done even later by arbitration – Will not impede resumption on basis of suit notice – More so in absence of any relief of declaration of title in the suit. (Para 36, 37)

       1995 Supp. (4) SCC 113 – Relied upon

       1986 (Supp.) SCC 720; (2013) 14 SCC 367; (1968) 3 SCR 862; (1988) 1 SCC 626; (1897-98) 25 IA 161; (1956) SCR 451; (1959) SCR Suppl.(1) 698 : AIR 1959 SC 504 – Referred

       Facts of the case:

       The issue in these appeals is: whether the High Court, while dismissing the second appeal filed by the plaintiff (original respondent) being devoid of merit and despite upholding the concurrent finding of fact recorded by two Courts below on the factum of ownership of the land, was justified in making an observation which has the potential of reopening the already settled issue of title in respect of the suit property?

       The original respondent Vijay Krishna Uniyal, claiming to be the owner and in possession of the immovable property, on which a building existed, consisting of many rooms in which a block for watchman and other structures existed, was served with a notice dated 19th August, 1985 issued by the Under Secretary to the Government of India, for and on behalf of President of India to quit and deliver possession of the land together with structures standing thereon, to the agent of Government (Defence Estate Officer, Meerut Circle, Meerut Cantonment), on the expiry of one month's notice from the date of its receipt. It was also made amply clear that on expiry of the said period, any right regarding occupation or easement and interest in the said property shall cease to exist.

       The original respondent filed a civil suit for simpliciter permanent injunction restraining the appellants, its officers' or representatives and servants from dispossessing him from the suit property. An alternative relief was prayed that a reasonable and adequate compensation in respect of the suit property be determined by the appellant on the principles laid down by law, for acquisition of the immovable property after giving an opportunity to the plaintiff (original respondent) of being heard before he is compelled to deliver possession of the suit property to the appellant.

       The Trial Court dismissed the suit in entirety.

       The First Appellate Court upheld the finding of fact recorded by the Trial Court.

       The second appeal was finally dismissed by the High Court. However, it was observed that appellant shall not be evicted from the property in dispute, except in accordance with law. The appellant shall get full opportunity if the eviction proceedings are initiated against him. The findings recorded by the trial court as well as appellant court shall not come in the way of the appellant and the appellant shall be at liberty to take his defence and the same shall be decided in accordance with law.

       Finding of the Court:

       Impugned judgment is erroneous an unsustainable.

       Result: Appeals allowed.