TMI Blog2001 (2) TMI 1054X X X X Extracts X X X X X X X X Extracts X X X X ..... bala Cantonment area. As is being pointed out in greater detail hereafter, the cases had, till this stage, proceeded on the footing that the land was granted to the predecessors of these Appellants on old grant terms . These Appeals therefore are fully covered by the decision of this Court in the case of Chief Executive Officer vs. Surendra Kumar Vakil. 4. Before arguments are considered facts in these Appeals need to be noted. 5. In Civil Appeals Nos. 917-918 of 1998 Notice of Resumption was given on 28th September, 1973. 6. A Suit bearing No. 280 of 1975 was filed in the Court of Senior Sub-Judge, Ambala, wherein the Order of resumption was challenged. In the Suit it was, inter alia, averred as follows: 4. That the order of resumption of the above bungalow is illegal, invalid, malafide, whimsical, unconstitutional and in-effective against the rights of the plaintiffs, inter alia, on the following grounds:- (a)x x x (b) That in the first instance, it is wholly incorrect that the site on which the building is standing is an old grant as alleged by the defendant No. 2. However, even notice of assumption, which the plaintiffs do not admit, in that event too, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Respondents were not the owners of the land. Even though, the Suit has been decreed and a permanent injunction passed in favour of the Appellants, the Court was careful enough to hold as follows: In view of the evidence, reasons and findings set out above, a decree for declaration is passed in favour of the plaintiffs and against the defendants with costs, that the resumption order is illegal, void and ineffective and is not binding upon the plaintiffs and a decree for permanent injunction is also passed, restraining the defendants from dispossessing the plaintiffs from the property in dispute except in due course of law. (Emphasis supplied) It is thus to be seen that the even while decreeing the Suit the Court has held that the Respondents could dispossess the Plaintiffs by following due course of law. The question of dispossessing the Plaintiffs/Appellants would not arise if the Appellants were the owners of the land and the land was not under an old grant. This clearly shows that point was not pressed before the Trial Court and/or that if this point was pressed it has not been held in favour of Plaintiff/Appellant. If the point was pressed then it must be deemed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it. In its Judgment the High Court observed as follows: It is not in dispute that the plaintiffs are in possession of the property in dispute on what are known as 'old grant' terms. The terms are contained in order No. 179 of 12-12-1836 issued by the Governor General of India in Council and have been produced on record. Thus it is to be seen that before the High Court it had not been disputed that the land was under an old grant term and that the terms of the old grant had been produced on record. 12. At this stage, it must be mentioned that this Court again had occasion to consider whether the view taken by the Delhi High Court in Raj Singh's case (supra) was correct. This Court has, in the case of Union of India Anr. vs. Tek Chand and ors. reported in AIR1996SC203 , again approved the view in Raj Singh's case. AIR1973Delhi169 : AIR1973Delhi169 . As the Appellants were now non-suited on the basis of law finally laid down by this Court, they filed on 10th December, 1997 a Review Petition. In this Review Petition, for the first time, they sought to raise a point that the land was not under the old grant terms. For the first time, after all these years, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the original records regarding the bungalow in question and the Notification through GGO 179 of 12th September, 1836 were applied to the Ambala Cantonment, but that the papers showing that Ambala Cantonment was a station of the Bangalore Army and the Notification were not available on record. 18. These are the facts in brief. Now let us consider the submissions. 19. Mr. Andhyarujina submitted that his case was not covered by the decision in Harish Chand's case (supra). Relying on Para 4(b) of the Plaint, which has been set out hereinabove, he submitted that his clients had always disputed that the land was on old grant basis. He submitted that in the Suit the old grant has not been brought on record by the Respondents till date. He pointed out that all that had been brought on record was the cyclostyled copy of the Governor General in Council Order No. 179 dated 12th September, 1836. He submitted that this was not the old grant. He submitted that the grant would necessarily have to be a registered document. He submitted that as the Respondents were contending that the land was on old grant terms, it was for the Respondents to prove their case by producing the old gra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd until compensation was first fixed after hearing the concerned parties. He pointed out that the Allahabad High Court had taken the same view in the case of Mohan Agarwal vs. Union of India AIR1979All170 . He submitted that this was the law which prevailed. He submitted that because of this law the trial Court took an easy way out and decided his clients' suit only on the narrow point of principles of natural justice not having been followed. He submitted that it has nowhere been mentioned that his clients had not pursued or had given up their case that the land was not on old grant terms. He submitted that merely because the Trial Court took an easy way out and did not decide all the points urged by his clients would be no reason for depriving the Appellants of their valuable right. He submitted that as his clients had succeeded in the trial Court they did not need to file an Appeal. He submitted that before the first Appellate Court also his clients succeeded. He submitted that only in 1995, In Harish Chand's case (supra), this Court overruled the view taken by Allahabad High Court and the Himachal Pradesh High Court and approved a contrary view taken by the Delhi High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Court held that the Court should know the terms and the date of the grant and that an admission in a standard draft for seeking permission of the Cantonment Board for transfer was no proof or title. However, to be noted, this was a case where the question of title of the Union was in serious dispute. Mr. Andhyarujina also relied upon the authority in the case of T. Anklesaria vs. H. C. Vashistha AIR1980Bom9 . In this case the land and house in the Pune Cantonment were sought to be resumed. Resumption was challenged on the ground that this was not Government land. It was held that it cannot be said that all land in the Cantonment were Government land and there was no land of private ownership in the Cantonment. It was held that it had first to be established that the land belonged to the Government. It was held that even though there may be entries in the Register of the Government, those entries raised no presumption that they are true, until the contrary is proved. It must also be mentioned that this matter ultimately came up before this Court. This Court has remitted the matter back to the High Court with permission to the Union to lead proper evidence, if it so chose. Thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndered in evidence and marked as exhibits and/or are on record. He submits that the notices of resumption were given in 1971 and 1973. He submits that Mr. Andhyarujina's clients have litigated for the last approximately 17 years on an admitted position that the land was on old grant terms. He submits that it is now too late in the day and would be a travesty of justice if they were to be permitted to resile from the admitted position and at this belated stage be allowed to contend that the land did not belong to the Government. He submits that Mr. Yogeshwar Prasad's clients have lost in all Courts on facts and have not been able to show that the findings of the Courts below are not based on evidence in that case. Mr. Rohtagi pointed out, from the original records which were available in this Court, that in Civil Appeal Nos. 917-918 of 1998 the Appellants had given evidence. He pointed out that in the evidence there was not even a statement that the Appellants or their predecessors were the owners of the property and/or that the Government was not the owner of the land. He points out that in this case the documents which have been relied upon by Mr. Andhyarujina were not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... too late in the day for Mr. Andhyarujina's clients to take a contrary stand. Mr. Yogeshwar Prasad's clients have on facts lost in all Courts below. Notice to produce documents, given belatedly in some other case, is of no relevance so far as these Appeals are concerned. The practice of annexing irrelevant documents and trying to rely on them for the first time in the Appeal or in Review Petitions in the High Court should be deprecated. In Civil Appeal Nos. 917-918 of 1998 it is clear that, at all stages, the case has progressed on the basis that it was not disputed that the land was on old grant terms. Of course, in the Plaint, in Para. 4(b) it had been averred that the land was not on old grant terms. However, except for making such an averment that point has clearly not been pressed at any stage. In evidence given by the plaintiff and/or on his behalf, there is no statement that the land was of plaintiff ownership and/or that the land did not belong to the Government. During trial the documents, now sought to be relied upon by Mr. Andhyarujina were neither produced nor tendered nor got marked as Exhibits. Were they produced Respondents would have had an opportunity to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the first time. The High Court has rejected the Review Petition. The High Court has thus confirmed that at the time the Second Appeal was argued it was not disputed that the land was on old grant terms. This Court has to go by what has been recorded in the Judgment. What is recorded in the Judgment is supported by the conduct of the parties inasmuch as no evidence was led to dispute the fact, no documents were tendered or marked as Exhibits and no submissions were made on this aspect. That it was not disputed that the land was on old grant terms is also supported by what has been recorded in the Judgments of the trial court and the First Appellate Court. There is no evidence that the written admissions were taken forcibly and/or that they were not binding or not correct. Admissions are relevant evidence if not explained away. Thus these cases have been fought over the last 17 years on an admitted position. Mr. Rohtagi is right that it would be a travesty of justice and would amount to permitting parties to misuse laws delays if at this stage they are permitted to change their stand and take contentions which are contrary to what has been the admitted position all these years. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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