Union Of India v. Purushotam Dass Tandon And Another

We are unable to find any ground for interference under Article 136 of the Constitution. The Union of India made no effort to establish its title. The grant has not been produced. We do not know the terms of the grant. We do not even know the date of the grant. Reliance was placed on the alleged admission, which we consider to be no admission at all. In fact, the alleged admission was made after the dispute had started and it is inconceivable that the respondent would have made any admission acknowledging the title of the Government. On the other hand in the very application (Ex. P-6) he has repeatedly asserted that he is the owner of the land. The appeal is, therefore, dismissed with costs.

Ed.: The issues involved in the appeal are elaborately stated in the judgment of the Allahabad High Court, appealed from, which is reproduced below:

B.C Jauhari, J.— This is an appeal against the judgment and decree passed by Sri B.N Srivastava, Second Additional District Judge, Allahabad, dated August 4, 1978, and arises out of an interpleader suit filed by the Allahabad Polytechnic, Allahabad, impleading the appellant and the Union of India, on the allegation that the appellant had let out the property, Premises No. 29, Chaitham Lines, Allahabad Cantonment bearing Survey No. 143, to Allahabad Polytechnic and rent had been paid upto June 30, 1970. The Polytechnic was informed by the Union of India that they had resumed the grant relating to the property and henceforth rent should be paid to the Union of India, failing which the tenancy would be terminated. In view of the uncertainty as to whom the rent should be paid to the interpleader suit was filed.

The case of the Union of India was that the property in question was held by the predecessor of the appellant Sri Manmohan Dass Tandon under old grant terms under GGO No. 179 of September 12, 1836 and under Condition 6(1) of the said GGO the site of the building was resumed by the Union of India, by serving a resumption notice dated December 26, 1969 and the compensation of the material of the house standing over the site was adjudged at Rs 3500 which was to be paid to the appellant. The case of the appellant was that he was the full owner and landlord of the property in suit and that the Union of India had no right whatsoever in the suit property. A writ petition was filed by the appellant being Civil Miscellaneous Writ No. 165 of 1979 and the order of resumption was challenged. On the undertaking given by the Union of India that the appellant will not be evicted by force and without recourse to law, the writ petition was dismissed. The appellant traced his title on the basis of a court auction in execution of a decree in the year 1848 and asserted that since then he has been in possession without payment of any rent whatsoever to the Union of India, and has perfected his title by adverse possession. A case in the alternative was also set up that there was no valid resumption of the lease. The Additional Civil Judge before whom the suit was filed decreed the suit in favour of the appellant and held him entitled to get the rent from the Allahabad Polytechnic. The Second Additional District Judge, however, allowed the appeal and reversed the decree of the learned Civil Judge and held that the Union of India, and not the appellant, was entitled to get the rent from the Allahabad Polytechnic.

I have heard the learned counsel for the parties at great length and come to the conclusion that this appeal must be allowed and the judgment and decree of the first appellate court must be set aside and that of the trial court restored. The controversy in the suit mainly turns round the determination of the question whether the property in suit belonged to the Cantonment as alleged by the Union of India or it was the private property of the predecessors of the appellant having being acquired at an auction sale. In the instant case the Sale Certificate dated April 12, 1849 has been filed which shows that in execution of a decree held by Lala Manohar Lal against George Spencer, the property was sold for a sum of Rs 2900 and was purchased by the decree-holder Lala Manohar Lal. It is admitted that after the purchase Lala Manohar Lal entered into possession and his possession continued till his death and that of his successors continues up to date. The auction sale undoubtedly conveyed the right, title and interest which the judgment-debtors Mr Scot and George Spencer had on the date of the sale. It was consequently the bounden duty of the Union of India to establish that the judgment-debtors George Spencer and Mr Scot held the bungalow and the appurtenant land subject to the condition mentioned in GGO No. 179 dated September 12, 1836. No old grant in favour of the judgment-debtors or the auction purchasers or their successors was filed in this case and it appears that a presumption has been drawn that since the bungalow and the land in suit lie within the precincts of Allahabad Cantonment, the Cantonment must be deemed to be the owner thereof. This is, to my mind, a misconception and should be repelled outright. It appears that the lower appellate court has proceeded on the assumption that the relevant GGO No. 179 of 1836 applied to the facts of the present case and consequently the bungalow was held and governed by the terms embodied in the GGO including the power to resume at any time by giving one month's notice. It was further held that the terms of the GGO No. 179 were of a statutory nature and consequently must be given effect to. Before I embark on the controversy as to whether the GGO in question has statutory force or not it must be held that in the instant case there is no foundation worth the name for holding that the bungalow is held by the appellant and his successors under the terms of the GGO. I shall revert to the sole evidence relied upon by the Union of India in this connection, namely, the so-called admission contained in Ex. 8, later on. The terms of the GGO No. 179 dated September 12, 1836 were annexed as Annexure “E” to the wit petition and it is paper No. 41/15-C on the record. Condition No. 1 lay down that “all applications for unoccupied ground for the purposes of being enclosed, built upon or in any way appropriated to private purposes such ground being within the limits of a military Cantonment area in the first instance to be made to the Commanding Officer of the Station . . ..” Then Condition 5 lay down that “all grants are to be registered by the officer of the Quarter Master General's department.…” Then Condition 6 lay down conditions of the grant which includes the power of resumption of land. In this it is said that if a building is disposed of to a non-military personnel then permission of the Officer Commanding would be necessary. Condition 7 of this is very important and lays down as follows:

“7. All houses in a military Cantonment, being the property of persons not belonging to the army, which may be deemed by the Commanding Officer, shall be claimable for purchase or for hire at the option of the owner, in the former case at a valuation and in the latter at a rent to be fixed, in case of the parties disagreeing, by a committee of arbitration constituted as follows:”

From the terms of para 7 reproduced above the myth of all property lying within the Cantonment area as belonging to the Union of India and subject to the GGO and subsequent notifications etc. is exploded. Para 7 fully conceives of houses in a Cantonment being owned by persons not belonging to army and provides for taking over by the army by a sale or on rent fixed by a committee of arbitration. If the entire property in Cantonment belonged to the Union of India and its predecessors there could be no question of acquisition of the same by taking recourse to the provisions of para 7 of the above GGO Further this GGO envisages a grant which is to be registered in the office of the Quarter Master General. Consequently if Mr Scot and George Spencer or their predecessors build the house on a land belonging to the Cantonment then the house would have been built only after an application had been made to the office Commanding and thenecessary grant made and registered. In the instant case, as I have said above, there is no grant forthcoming in favour of the judgment-debtors or their predecessors. In the absence of any grant or evidence and there being a clear provision in the GGO itself contemplating private ownership inside the military Cantonment no presumption as raised by the first appellate court that the land must be deemed to belong to Cantonment can be raised.

Coming now to the nature of the GGO the matter came up before this court as early as 1924 and it was laid down in Raghubar Dayal v. Secretary of State AIR 1924 All 415 as follows:

“With regard to the plea that these Army Regulations relied upon by the plaintiff have no statutory authority and have not the force of law we think it is well-founded and we are unable to agree with the Subordinate Judge who took the contrary view.... The Army Regulations with which we are here concerned cannot, so far as we can ascertain, be traced to any statutory origin.”

From the above decision it is possible to infer that the relevant GGO No. 179 dated September 12, 1836 did not have a statutory force but the learned counsel appearing for the Union of India drew my attention to a Full Bench decision of this Court dated April 22, 1978 in Writ Petition No. 112 of 1979 where a specific reference was made by a Division Bench of this Court for the opinion of the Larger Bench on the question whether the Bengal Army Regulation Governor General Order No. 179 dated September 12, 1836 continues to be the law in India even after the enforcement of the British Statutes Repeal Act, 1960. There the Full Bench of our High Court answered the question in the affirmative and held that the Bengal Regulation Governor General Order No. 179 dated September 12, 1836 continued to be the law in force in India even after the enforcement of the British Statutes Repeal Act, 1960. The net result, therefore, is that the earlier view held in Raghubar Dayal v. Secretary of State AIR 1931 PC 1 stands repealed. Accordingly, these rules do have statutory force. But it would appear that the GGO of 1836 would apply where Cantonment land has been built upon. As I have said above, in the instant case apart from the so-called admission there is no evidence that the land belonged to the Cantonment and was built upon under the term of the GGO with the permission of the Officer Commanding. Another case Secretary, Cantonment Committee v. Satish Chandra Sen AIR 1931 PC 1 also considered the effect of the GGO in question. At p. 2 while considering the matter it was laid down as follows:

“It is contended for the appellant that these rules, and in particular para 2, clause 6, declared all lands in the Cantonments to be the property of Government. Their Lordships are not satisfied that this is the necessary implication, though the rules certainly suggest that some, and probably the greater part, of the land was at that time Government property.”

At p. 3 in Satish Chandra case AIR 1931 PC 1 it was laid down as follows:

“Their Lordships hold that the fair inference from these facts, taken in connection with the rules of 1836, is that much, and possibly most, of the land in this Cantonment was and is the property of Government; that houses were erected upon it by the licence of the Government, the buildings being recognised as the property of the persons by whom they were erected, and the land remaining in the ownership of Government, but that there may nevertheless have been within the Cantonment limits some land which was never acquired by the Government, and of which the ownership was always in private hands.”

These observations fully support the inference that here in connection with the GGO of 1836 private ownership of land and houses within the Cantonment limits was fully recognised.

In view of what has been said above it would be clear that in this case the Union of India has not produced any evidence relating to the grant under the GGO of 1836. The first appellate court, it appears, presumed that all land lying within the limits of a Cantonment was necessarily government property and the GGO of 1836 applied to it and the Government has the power of resumption by virtue of the GGO The document of grant, if any, must necessarily be in the possession of the Union of India and for reasons best known to them they have not cared to file it. The Court is, therefore entitled to draw an adverse inference against the Union of India. The Union of India instead of filing the necessary evidence regarding grant has merely chosen to rely on an admission of the appellant said to be contained in Ex. 8. This accordingly brings me to the consideration of the so-called admission in Ex. 8. The Additional District Judge, Allahabad who decided the case against the appellant has relied upon this Ex. 8 to support the title of the Union of India and the action of resumption taken by it under the GGO of 1836. I will presently examine the effect of the papers filed in this behalf.

Exhibit 6 is a copy of the application dated April 19, 1971 from Sri Purshottam Dass Tandon addressed to the Director of Military Land and Cantonment, New Delhi, in which it was asserted by the appellant that Bungalow No. 29, Chaitham Lines belonged to one Mr Scot, that Late Lala Manohar Lal great grandfather of the applicant purchased the bungalow at an auction sale on November 25, 1848 in execution of a decree, that from the date of purchase Lala Manohar Lal and after him his descendants and now the applicant have been in possession of the said bungalow exclusively without payment of rent or any lease and are the owners thereof. That since the bungalow lay within the Cantonment area the application was made for sanction of a housing scheme which required sanction of the local bodies within whose area the land is situated and accordingly necessary permission be granted for sale of the land to landless persons. This paper is a copy of the application and although the date mentioned in the heading is April 19, 1971 in the bottom on the left hand the date mentioned in October 10, 1970.Now we come to Ex. 8 which is the crucial document which is also dated October 10, 1970. This document is paper No. 67-C and consists of two parts 67-C/1 and 67-C/2. In 67-C/1 Purshottam Dass Tandon has signed as owner of bungalow No. 29 and has reiterated the same facts which are mentioned in Ex. 6 that Lala Manohar Lal and thereafter his successors are the owners of the property in suit without any payment of rent or any lease. Annexed with this application is paper No. 67-C/2 which is a standard draft, and the title of which is “Application for Transfer of Property in Cantonments”. This reads as follows:

“The undersigned hereby apply for permission for the transfer of the Bungalow/House No. 29 situated at Chaitham Lines, Road, Allahabad, from Sri Purshottam Dass Tandon to various persons. The site of the bungalow/house is held on:

Old Grant Terms—Vide GGO-No. 179 of 1836. Old grant as per entry in G.I.R . . .”

Reliance is placed by the Union of India on the admission of Purshottam Dass Tandon that the land is held in old grant terms vide GGO No. 179 of 1836. We have accordingly to see the effect of this document and consider whether this would amount to proof of the title of the Union of India as far as the property in suit is concerned. Sri Purshottam Dass Tandon was examined in this case and he asserted in his deposition that he was the owner of house No. 29. Towards the end of his cross-examination he was asked a question regarding this paper and he stated that for partitioning the property he has applied to the Military Estate Officer and has given an application, copy of which is paper No. 67-C. The appellant was not asked as to how he claims himself to be the owner when he mentioned in the standard draft that the property was held under the old grant terms vide GGO No. 179 of 1836. Learned counsel for the respondent cited Ajodhya Prasad Bhargava v. Bhawani Shanker Bhargava AIR 1957 All 1 (FB) and urged that in view of the Full Bench decision when a document containing admission of the opponent is admitted by the opponent's counsel the same can be used against him without following the procedure of Section 145, Indian Evidence Act. Learned counsel for the appellant has referred to the Supreme Court decision in Sita Ram Bhau Patil v. Ramchandra Nago Patil (1977) 2 SCC 49, AIR 1977 SC 1712 where the law was laid down in the following terms:( and 17)

“... admission is relevant and it has to be proved before it becomes evidence.”

The provisions in the Evidence Act that ‘admission is not conclusive proof” are to be considered in regard to two features of evidence. First, what weight is to be attached to an admission? In order to attach weight it has to be found out whether the admission is clear, unambiguous and is a relevant piece of evidence. Second, even if the admission is proved in accordance with the provisions of the Evidence Act and if it is to be used against the party who has made it, ‘it is sound that if a witness is under cross-examination on oath, he should be given an opportunity, if the documents are to be used against him, to tender his explanation and to clear up the point of ambiguity or dispute. This is a general salutary and intelligible rule’.... Therefore, a mere proof of admission, after the person whose admission it is alleged to be has concluded his evidence, will be of no avail and cannot be utilised against him.”

While it is true that in the instant case, Ex. 8 had been filed before the statement of the appellant was recorded, nevertheless apart from asking whether paper No. 67-C was a copy of the application made by him to which he replied in the affirmative, no other question was put to him to clarify the situation. Even in the Full Bench case of Ajodhya Prasad v. Bhawani Shanker AIR 1957 All 1 (FB) which dispensed with the question of putting the admission to the opponent in cross-examination, the Full Bench laid down the law in the following terms at p. 19:

Our answers to the questions referred to us are as follows:

“Question 1: Where in a civil suit a party produces documents containing admissions by his opponent, which documents are admitted by the opponent's counsel, and the opponent enters the witness box, it is not obligatory on the party who produces those documents to draw in cross-examination the attention of the opponent to the said admissions before he can be permitted to use them for the purpose of contradicting the opponent provided that the admissions are clear and unambiguous but where the statements relied on as admissions are ambiguous or vague it is obligatory on the party who relies on them to draw in cross-examination the attention of the opponent to the said statements before he can be permitted to use them for the purposes of contradicting the evidence on oath of the opponent.”

From the observations made above it is quite clear that the admissions before they can be relied upon must be unambiguous and must not be vague and if there is any ambiguity or vagueness then it is obligatory to the party relying on them to put to the witness the statement before it can be used. Now in the instant case, as I have said above, the appellant was all along asserting that he was the full owner of the property and even in the application paper No. 67-C it was reiterated by him that he was the owner, and that there was no lease and no rent was ever paid. In para 8 permission was sought for transfer as the bungalow lay in Cantonment area. With these clear assertions of ownership and seeking merely permission of the Cantonment Board, the averment in the standard draft that the house was held under the old grant terms vide GGO No. 179 of 1836 is clearly in the teeth of the assertions of full ownership in paper No. 67-C/1. If the appellant had been called upon to explain how he came to sign paper No. 67-C/2 and make that averment about the old grant he would have been in a position to explain about it. As has been stated elsewhere this property was purchased in 1848 and by October 10, 1970, the date of paper No. 67-C, a period of 122 years had elapsed. For this intervening period of 122 years the Union of India has not been able to file any papers containing any admission of the predecessors of the appellant who have been dealing with this property as owners for more than 122 years. This admission, therefore, to my mind cannot be substituted for a proof of title. The so-called admission is ambiguous, as I have said above, and is also vague and consequently is of no value. In Ambika Prasad Thakur v. Ram Ekbal Rai AIR 1966 SC 605 the law was laid down in the following terms at p. 612 while discussing the admission of the Maharaja:

“The Maharaja was interested in the success of the suit, and it was necessary for him in his own interest to make this admission. The admission was made under somewhat suspicious circumstances at the end of the trial of the case when the arguments had begun. Though this petition was filed, the written statement of the Maharaja was never formally amended. In the circumstances, this admission has weak evidentiary value. In this suit, the plaintiffs do not claim tenancy right either by express grant or by adverse possession. Title cannot pass by mere admission.”

This ruling, therefore, clearly lays down that title cannot pass by mere admission. The property was purchased by the predecessors of the appellant in 1848 and right from 1848 up to 1970 there it no admission of the appellant or his predecessors of the title of the Union of India or its predecessors and the appellant and his predecessors have been enjoying this property without any let or hindrance by the Union of India and consequently by lapse of time for more than 100 years have acquired title even if it is assumed that title was with the Government at any time. The admission in paper No. 67-C is vague and ambiguous. No explanation was bought from the appellant regarding this admission which does not and cannot be taken to pass title which can only pass by a deed of transfer duly registered.

There is yet another matter in this case which also leads to the same conclusions. On the threat to resume the grant under the so-called GGO of 1836, the appellant was compelled to file a writ petition in the High Court and on the undertaking given by the Union of India that they do not wish to take the law in their own hands and to summarily evict the appellant, the writ petition was dismissed. The observations made by this Court in the writ petition are very relevant and are reproduced below. The judgment in the writ petition is paper No. 44/2-C on record.

“Since the petitioner himself has an alternative remedy for getting his title adjudicated in a court of law and since the respondents have made it clear that they are not going to evict the petitioner by force and having recourse to courts of law coupled with the fact that a highly disputed question of title is involved, this is a fit case where parties be left to the alternative remedies of law.”

In the instant case the Allahabad Polytechnic was the tenant of the appellant and was paying rent to him. As long as the appellant was not evicted from the house by taking recourse to legal proceedings the demand of rent by the Union of India was wholly uncalled for. 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 made a demand for rent and without that the appellants' right to realise rent could not be disturbed. This also leads to the 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.

After the case has been reserved for judgment and the judgment has been dictated arguments were addressed on behalf of the Allahabad Polytechnic with the leave of the Court. In his arguments the learned counsel appearing for Allahabad Polytechnic has merely referred to the arguments advanced on behalf of the Union of India that the GGO No. 179 dated September 12, 1836 applied to the property in suit and that after the resumption notice his landlord has changed. Learned counsel for the appellant contended that the Allahabad Polytechnic having filed the interpleader suit, cannot take sides and the plaintiff in an interpleader suit files a suit only with the purpose of resolving the conflict between rival claimants to the property. While it is true that in an inter pleader suit the plaintiff has to have no axe to grind and is discharged after the rival claimants have entered the ring, in this particular case it appears that the plaintiff was not discharged by the Court. Consequently, I have heard the learned counsel appearing for Allahabad Polytechnic but I find that there is nothing fresh to be considered and the view that I have taken above remains the same.

Giving the matter my very anxious considerations I come to the conclusion that the property belongs to the appellant, that there is no proof of any grant in favour of the appellant and as a necessary result recourse cannot be had to a mere notice to evict the appellant.

In the result the appeal is allowed with coats against the Union of India. It is held that the appellant and not the Union of India is the person entitled to receive rent of the property in suit from the Allahabad Polytechnic. The judgment of the trial court is restored.