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1999 Supreme(MP) 254
1999 (1) JLJ 373
(SUPREME COURT)
Smt. Sujata V. Manohar and R.C. Lahoti, JJ.
Chieef Executive Officer v. Surendra Kumar Vakil and others
Civil Appeal No. 8484 of 1997; against the judgment and decree of High Court
of M.P. passed in First Appeal No. 319 of 1994; Decided on 23.3.1999.
Arvind Kumar Sharma for appellant;
A.S. Nambiar with Ms. A. Subhashini and Ahubha Jain for respondents.
Headnote:(1) Cantonment -- Bengal Regulations, 1836 -- Reg. 6 -- order of Governor General in Council -- No. 179 -- grant of land in cantonment area -Government retained power of resumption at any time n ground could not be sold by grantee -- building if built could not be disposed of to non-military man without permission. [Para 9
(2) Cantonments Act, 1924 -- S. 280 -- Cantonment Land Administration Rules, 1925 -- R. 3 -- general land register prepared and maintained in accordance with provision under -- entry showing as ‘old grant‘ to civilian -- construction of bung low thereon -- was with the condition of resumption of land -- land could not be sold by grantee -- building to civilian could be sold with prior sanction. AIR 1973 Delhi 169 and C.A No. 3525/83 relied on. [Paras 12 & 13
(3) Evidence Act, 1872 -- Ss. 101 and 102 n plaintiff filing suit for declaration of title n all documents of title should be prodnced by him. [Para 15
(4) Cantonments Act, 1924 -- Ss. 184 and 185 -- Board noticing unauthorised construction to be a punishable act under S. 184 -- may direct alteration or even demolition of such work. [Para 16
(5) Evidence Act, 1872 -- S. 35 -- old registers maintained in regular course -- coming from right custody -- entries therein -- are reliable. [Para 17
(6) Evidence Act, 1872 -- Ss. 18 and 31 -- plaintiff changing his stand regarding right in disputed property -- admission may be taken to the effect that he was not sure about his right in the property. AIR 1976 SC 376 distinguished. [Para 18
¼1½ Nkouh && caxky fofu;e] 1836 && fofu- 6 && lifj"kn~ xouZj tujy dk vkns‘k && Ø- 179 && Nkouh {ks= esa Hkwfe dk vuqnku && ljdkj us fdlh Hkh le; iquxzZg.k dh ‘kfDr vius ikl j[kh && Hkwfe izkfIrdrkZ }kjk foØ; ugha dh tk ldrh Fkh && fuekZ.k ;fn fufeZr fd;k x;k gks] vuqKk fcuk xSj lSfud O;fDr dks O;;u ugha fd;k tk ldrk FkkA ¿ iSjk 9À
¼2½ Nkouh vf/kfu;e] 1924&& /kkjk 280 && Nkouh Hkwfe iz‘kklu fu;e] 1925 && fu- 3 && mica/kksa ds vuqlkj lkekU; Hkwfe jftLVj rS;kj fd;k x;k rFkk la/kkfjr fd;k && izfof"V esa flfofy;u dks **iqjkus vuqnku** ds :i esa nf‘kZr && ml ij caxys dk fuekZ.k && Hkwfe ds iquxZzg.k dh ‘krZ ds lkFk Fkk && Hkwfe izkfIrdrkZ }kjk foØ; ugha dh tk ldrh Fkh && fuekZ.k flfofy;u dks iwoZ eatwjh ls foØ; fd;k tk ldrk FkkA , vkb vkj 1973 fnYyh rFkk flfoy vihy Ø- 3525@83 voyafcrA ¿ iSjk 12 ,oa 13À
¼3½ lk{; vf/kfu;e] 1872 && /kkjk 101 rFkk 102 && oknhx.k }kjk gd dh ?kks"k.kk dk okn Qkby fd;k tkuk && gd ds leLr nLrkost mlds }kjk Qkby fd, tkuk pkfg,A
¿ iSjk 15À
¼4½ Nkouh vf/kfu;e] 1924&& /kkjk 184 rFkk 185 && /kkjk 184 ds v/khu naMuh; lféekZ.k cksMZ ds /;kku esa vk;k && ,sls fuekZ.k esa ifjorZu dk vFkok gVk, tkus dk Hkh funs‘k ns ldrk gSA ¿ iSjk 16À
¼5½ lk{; vf/kfu;e] 1872 && /kkjk 35 && fu;fer vuqØe esa la/kkfjr iqjkus jftLVkj && mfpr vfHkj{kk esa vkuk && mlesa dh izfof"V;k¡ && voyacuh; gSA
¿ iSjk 17À
¼6½ lk{; vf/kfu;e] 1872 && /kkjk 18 rFkk 31 && oknh }kjk fooknxzLr laifÙk ds vius vf/kdkj ds ckjs esa vk/kkj cnyk tkuk && bl vk‘k; dh Loh—fr ekuh tk ldrh gS fd og laifÙk esa vius vf/kdkj ds ckjs esa vk‘oLr ugha FkkA , vkb vkj 1976 ,l lh 376 izHksfnrA ¿ iSjk 18À
Manohar, J. -- 1. These appeals pertain to a property admeasuring 11.37 acres comprising Survey No. 392 and known as Bungalow No. 39, Sagar cantonment. As per the Gtencra1 Land Register maintained under the General Land Administration Rules of 1925, the said property is shown as held on old grant terms and stands in the name of Shri S.N. Mukherjee. The site is described as B-3 land and is placed under the management of Defence Estate Officer, Jabalpur Circle, Jabalpur.
2. According to the respondents, by a sale deed dated 27th of September, 1927, S.N. Mukherjee and his wife, Sarjuba1a Devi, purchased the said property together with the adjoining Bungalow No. 40 from one Pandit Murlidhar Dubey. The terms of the sale deed, however, do not disclose the nature of the rights possessed by Dubey over the land comprising Bungalow Nos. 39 and 40.
3. S.N. Mukherjee who was the occupancy holder as recorded in the General Land Register died in the year 1972 leaving behind 11 legal heirs. Bungalow No. 39 which is the subject matter of the present appeals, however, was not mutated in the names of the legal heirs since they did not apply for mutation. By four registered sale deeds dated 26.2.1983, the heirs of S.N. Mukherjee sold the entire property consisting Bungalow No. 39 in favour of 24 persons who are the respondents. One Gopal Das Soni obtained power of attorney from both the vendors as well as the vendees for dealing with the said property and taking all proceedings in connection with it.
4. In the said sale deeds the property was described as leasehold land of the Cantonment Board and it was stated that the purchasers will have to abide by the terms and conditions on which this land was held in the name of the ancestors of the sellers. It was further provided that the purchasers will have the same rights which the sellers were having on the place sold to them. Thereafter by four amendment (admission) deeds dated 4-5.8.1993, the power of attorney holder on behalf of the Vendors stated that in the said sale deeds, due to a typographical error, the land was shown as leasehold type whereas it should have been described as old grant type. Therefore, by the amendment deeds the said description was being changed to 'old grant' type.
5. By his letter dated 26.8.1983 addressed to the Military Estate Officer, Jabalpur Cantonment, the power-of-attorney holder informed the Military Estate Officer that Bungalow No. 39, Survey No. 392, Sagar Cantonment, was held in the name of S.N. Mukherjee. He had died on 13.7.1972 leaving behind 11 legal heirs as set out therein and that the said legal heirs had sold the said property in favour of 24 respondents (whose names were set out in the letter) by virtue of 4 sale deeds of 26th of February, 1983. By the said letter he requested that the above named Bungalow No. 39 may be transferred in the records of the Military Estate Officer, in the names of the purchasers. Thereafter correspondence ensued between the parties. The Military Estate Officer on 3.10.1983 issued a notice to the Vendors as well as the Vendees stating therein that the said area is held on 'old grant' terms in the name of S.N. Mukherjee in the records maintained in his office. He further stated that the Vendors divided the entire land into four portions without obtaining the prior sanction of the competent authority in contravention of the terms of the grant on which the site was held and that the sale in favour of the purchasers was also without obtaining the prior sanction of the competent authority and in contravention of the terms of the grant, which would attract action for resumption of the site. The notice asked the purchasers as well as the sellers to show cause why action for resumption of the site be not taken against them. In his reply dated 15.10.1983 the power-of-attorney holder stated that as per the terms of the 'old grant' the sellers were having occupancy rights in respect of Bungalow No. 39 and, therefore, the seller
