1. The following questions of law have been framed in this appeal on 28/8/2009:

“Whether the appellant had the right to resume the land and if so on what terms?”

2. The facts relevant may be stated as follows:

Respondent Nos.1-A to 1-F herein are the legal heirs of Smt. Umrao Kevalchand Bothra, who was the plaintiff and the Respondent Nos.2 and 3 are her sisters who were the Defendants. Appellant No.1Union of India and the Appellant No.2-Military Estates Officer are the original Defendant Nos.1 and 2 for the sake of convenience they are hereinafter referred as per their status in the Trial Court.

3. The Notice dated 1/1/1971 Exhibit 61 issued by the Under Secretary to the Government of India to 5 persons including one Mahipal Ghand Sukhraj Mutha is the cause of action. As per the notice it was communicated that land comprising Survey No.701 (Bungalow No.3, Prince of Wales Drive Poona Cantonment) measuring 2.32 acres was belonging to the President of India and was held on old grant terms by Sukhraj Hajarimal under conditions of A.R.I Vo.II of 1887 under which the Government was entitled to resume the said land. The said land was held by the Government and the Government has decided to resume the suit property under the terms of old grant. Hence, the notice was issued offering Rs.22,510/- to the occupiers towards the standing structures with a right to challenge the compensation before the Committee of Arbitration and all rights, easements and interest in the said land which the notice might have, would cease on expiry of one month from the date of service of this notice.

4. The deceased Umrao Kevalchand Bothra filed Regular Civil Suit No.2405/1974 for a declaration that the suit notice was illegal, ultra virus and of no consequence and the defendants were not entitled to deprive the plaintiffs of their property without following due process of law. Declaration was claimed that the Government was not entitled to resume possession. The plaintiff claimed that the suit property was of sole ownership of Mahipalchandra Sukhraj Mutha and after his death, the plaintiff and Defendant Nos.3 and 4 became the sole owners and legal heirs of Mahipalchandra Mutha. The bungalow and servant quarters were taken on lease by the predecessor in title of the plaintiff and defendant Nos.3 and 4 on rent of Rs.292.06 per month. The defendant No.2 occupied the portion of the suit property as lessee and in May 1966 defendant No.1 through defendant No.2 called upon Mahipalchandra to renew the lease on certain terms and conditions. The said lease was not renewed. Thereafter, Mahipalchandra received above written notice. The said notice was illegal and void ab initio and issued without authority. The said land was not belonging to the Government. The land structure belonged to the plaintiff and the plaintiff was not given sufficient opportunity. The rights of President were constitutional rights under Article 228 and the Court has no competency to determine the same.

5. Defendant Nos. 1 and 2 filed the written statement Exhibit 23 and they contended that said land bearing G.L.R. Survey No.701 was the property of the Government (Ministry of Defence). It was granted on 30/12/1887 to M/s.Ludha Ebrahim & Co. under the provisions of Army Regulations of 1875. As the said land was not brought in use, the grant was cancelled. But again on 12/6/1889 the said land was granted on the conditions signed by the grantee. Mr. Abdul Satar Umar came in possession of the bungalow by virtue of consent decree in Suit No.86/1909. He with the permission of the Head Quarters on 4/8/1924 mortgaged the property to one Rajan Ali Lallji Sajan and thereafter mortgaged to Sukharaj Hajarimal on 10/9/1925 who purchased the bungalow on 26/8/1926 for Rs.26,000/-. The said record in file W.L. B.S. of the Cantonment Board, Poona belonging to the Central Government were missing. The plaintiff was in possession of the structure through late Sukharaj Hajarimal. One portion of the same was ta