BINOD KUMAR ROY, RAM KISHORE SINGH - (1.) The petitioner prays under Article 226 of the constitution to issue a Writ of Mandamus directing the Respondents to (i) mutate his name as 'Private Owner' of 'Bungalow No. 29, Chaitham Lines, Survey No. 143, Old Cantonment Allahabd' (hereinafter referred to as the Bungalow) and (ii) accept property taxes from him in regard thereto and (iii) to award him costs.The Backdrop :-2. From the writ petition, counter-affidavits and Rejoinder thereto exchanged between the parties, and the records called for at the request of learned counsel for both sides it is apparent that in regard to thebungalow there were series of litigations, which are necessary to be mentioned first in seriatim.
(2.) In execution of a decree against the judgment-debtors-Scott and Spencer, the bungalow was auction sold on 26th November, 1848 and purchased for Rs. 2,900.00 by the decree-holder Lala Manohar Lal, (Grand Father of the Petitioner) and that auction sale was confirmed by the Court on 27-12-1848.2.2 The Respondents on behalf of the Union of India on the strength of Governor General's Order No. 179 dated 12th September, 1836 tried to take possession of the bungalow by issuing resumption notice on 26/12/1968 to the petitioner. The petitioner filed Writ Petition No. 175 of 1969 before this Court challenging this notice alleging, inter alia, that the bungalow is in his possession being his private property, which he had got through auction sale and family settlement; that the Union of India is not the owner of the disputed property; and that his title was also perfected by adverse possession. His claim was contended by the Respondents on various grounds which are not necessary to be mentioned.This writ petition was finally dismissed with certain liberties to both parties vide Order dated 6/07/1970, the relevant portion of which reads thus :-"The petitioner challenged the validity of this notice on several grounds. It has been alleged that it violates the Fundamental Rights of the petitioner guaranteed under Article 31(2) of the Constitution and that the notice is confiscatory in nature. It has also been alleged that the Order No. 179 dated 12th September, 1836, is no longer in existence and is not applicable to Allahabad. It has been stressed that the land was not subject to any resumption and that the petitioner has perfected his title by adverse possession. It has also been alleged that the Governor General's Order No. 179 is no longer operative by virtue of the operation of the Government of India Act, 1935 as also the Constitution of India. The respondents have in the counter-affidavit controverted the various points raised in the petition. They have filed a supplementary affidavit to show that the aforesaid Order No. 179 is still in operation and is applicable to all such lands. A perusal of the pleadings shows that several questions of a highly controversial nature arise in this case. The petitioner challenges the very title of the Government to the land and also its power to resume possession over the land. In paragraph (sic) of the principal counter-affidavit filed on behalf of the President of India as well as the Military Estate Officer, Lucknow, it has been stated that "in case the petitioner does not hand over possession in pursuance of this notice, the respondents do not propose to forthwith evict the petitioner by use of force. They will have recourse to appropriate proceedings either by filing regular suit for the ejectment of the petitioner or by having recourse to any other valid provision of law authorising them to get possession of the Government land. In either case the petitioner will get an adequate apportunity to get the question of title or the adequacy of compensation offered determined by the local authority." It is thus clear that the respondents have given up the threat (held out in the impugned notice) of dispossession without recourse to process of law. In this situation, the further threat in the impugned notice that on its service upon the petitioner his rights, easements and interests in the land will cease, has also become a pious hope. 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 without 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 at law." (Emphasis supplied)2.3 The petitioner filed Suit No. 147 of 1971 in the Court of Additional District Judge, Allahabad against 'Harijan Sevak Sangh' and Allahabad Polytechnic dubbing the former as tenant and the latter as sub-tenant of the tenant for arrears of rent and their ejectment from the bungalow. During submissions it is claimed that this suit has been decreed, without disclosing the date of judgment and the decree or the findings recorded therein.
(3.) The Allahabad Polytechnic filed original Suit No. 161 of 1973 in the Court of the Civil Judge, Allahabad asserting itself to be tenant of the petitioner and impleading him and the Union of India as Defendant Nos. 1 and 2 respectively claiming following reliefs :- "(a) The defendant Nos. 1 and 2 be asked to interplead among themselves to establish their respective rights with regard to the amount of rent due from the plaintiff in respect of premises No. 29, Chaitham Lines, Allahabad Cantonment, and declare that the plaintiff is fully discharged from the liability of the payment of rent due against it to defendants Nos. 1 and 2 upto 30-6-1973.(b) Plaintiff be awarded the costs of the suit.(c) Any other relief deemed fair and just be passed in favour of the plaintiff against the defendants or any of them."It's case was as follow :- The Bungalow is claimed by the Defendant No. 1 in his occupancy right under Old Grant incorporation in Government General's Order No. 179 dated 12/09/1936. The said premises consists of 22 Acres of lands and few scattered buildings. The said premises having been vacated by an organisation Ishwar Saran Ashram, the plaintiff took it on a monthly rental of Rs. 185.00 from the defendant No. 1 for play ground for students and for accommodating its staff. Since 1-6-1964 the plaintiff has regularly paid rent to defendant No. 1 till June, 1970 from the account of the institution through crossed cheques. The Defendant No. 1, however, neither issued receipts to the plaintiff for the payment of the rent made to him nor the plaintiff ever pressed for the same as the payments were made through Bank. The Defendant No. 2 by registered notices dated 23/02/1971 and 26/06/1971 informed the plaintiff that the premises has been resumed by the Government of India with effect from 31/01/1969 and it has become the property of the Government of India, Ministry of Defence, from the aforesaid date. Defendant No. 2 requested the plaintiff, as it was in occupation to pay rent at the rate of Rs. 185.00 p.m. to defendant No. 2 with effect from 31/01/1969, as the defendant No. 1, the Ex-owner, ceased to have any title therein from the said date. The defendant No. 1 also by notice dated 11/06/1971, wrongly addressed to 'Harijan Sewak Sangh' and 'Ishwar Saran Ashram' with ulterior motive demanded rent of premises No. 29, Chaitham Lines from 1/07/1970 to 31/05/1971 failing which threatened to terminate the tenancy and forceful dispossession. In reply to the aforesaid notice dated 11/06/1971, the plaintiff vide its letter dated 30/01/1975 informed defendant No. 1 that Military Estates Officer, Lucknow Circle, an employee and representative of defendant No. 2, had also by registered notice dated 26-5-1971 claimed rent from it with effect from 31-1-1969 on the ground of resumption of the premises in question alleging that he had ceased to have any title or interest. In order to fully get itself absolved it requested the defendant No. 1 to settle the matter with the Government of India to enable it to pay the entire arrears of rent to the rightful person. The defendant No. 1 instead of settling the matter with defendant No. 2, again served notice dated 9/08/1971 claiming rent from 1/07/1970 to 31/05/1971, in default threatened to terminate tenancy and eviction. The plaintiff again replied the said notice strongly protesting the allegation of holding it as a sub-tenant of Harijan Sewak Sangh and others. Knowing well that plaintiff alone is the tenant in possession of the disputed premises still the defendant No. 1 filed Suit No. 147 of 1971 in the Court of Civil Judge, Allahabad, impleading Harijan Sewak Sangh, Harijan Ashram and Ishwar Saran Ashram as defendants. As the plaintiff is not certain about the respective rights of the defendants, as both of them are claiming themselves to be the owner of the disputed property, it is just and proper that they be asked to interplead between themselves to prove their rights with records to the disputed property.The petitioner, who was defendant No. 1 in the suit filed written statement claiming to be as 'owner' and 'landlord' of the premises alleging to this effect.- The premises has been in the tenancy of the 'Harijan Sewak Sangh', a registered body since long time, which runs and owns institutions known as 'Ishwar Saran Ashram' and 'Harijan Ashram' on an agreed rental of Rs. 185/- p.m. which used to commence from 1st day and end on the last day of the every English Calendar Month. Due to default in payment of rent and sub-tenancy created by the said 'Harijan Sewak Sangh' in favour of the 'Allahabad Polytechnic', the defendant No. 1 was compelled to terminate the tenancy of 'Harijan Sewak Sangh' by registered notice and institute Suit No. 147 of 1971.The case set forth by the Union of India Defendant No. 2 in its written statement was to this effect.- Survey plot No. 143 of old1 Cantonment Board, Allahabad has an area off 22.38 acres. Bungalow Nos. 23, 27 and 29, Chaitham Lines were constructed thereupon. This land was held by Man Mohan Das for residential purposes on old grant terms under Governor General's Order No. 179 of 12-9-1836, under condition No. 6(1) of which this was resumable by the Government at any time. In 1939 the Executive Officer, Cantonment Board, Allahabad reported that Bungalow No. 29 has been rented out by the landlord to the U. P. State Government for using it for Basic Training College. Due sanction was accorded for using this bungalow for Basic Training College from year to year with effect from 1-8-1939 upto 31-3-1950. Man Mohan Das had died in 1952 and under the deed of family settlement the bungalow in question fell to the share of Defendant No. 1. After some correspondence the Principal of the College informed the Government that the bungalow has been vacated in June, 1951 by the Education Department. The Executive Officer, Cantonment Board was asked to intimate as to who is using the Bungalow whereupon it was reported that the bungalow is being used as hostel for students of Civil Engineering School since 1955. By letter dated 14-9-1965 the Secretary, Technical Education Department of the U. P. Government requested the Secretary, Ministry of Defence, Government of India to transfer the site for use of Allahabad Polytechnic. The Government of India ultimately decided to resume possession of the site with the bungalow standing thereon and accordingly the resumption notice dated 26-12-1969 was issued and served on Defendant No. 1 asking him to hand over vacant possession of the site along with superstructures thereon on 31-1-1969 to the Military Estate Officer, Lucknow Circle, Lucknow and receive Rs. 3,500.00 as value of the structure. Defendant No. 1 filed Writ Petition No. 175 of 1969, which was dismissed on 6-7-1990. With effect from 31-1-1969 Defendant No. 1 has no right or interest in either the land or bungalow and the answering defendant being supreme owner has got every right and interest therein. The plaintiff being admittedly a tenant of the bungalow, became tenant of the answering defendant and as such liable to pay rent to the answering defendant. The suit has presumably been filed under Order XXXV, Rule 1 of the Code of Civil Procedure but the plaintiff being a tenant has got no right to file it being barred by the provisions of Order XXXV, Rule 5 of the Code of Civil Procedure. The suit merits dismissal with special cost to the answering defendant.Following five issues were framed for adjudication.-"(1) Which of the defendant is the owner of the disputed premises and entitled to receive rent thereof?(2) Whether the plaintiff is not entitled to sue under Order XXXV, Rule 5 of C.P.C. as alleged by the defendant?(3) Whether notice u/S. 80, C.P.C. served upon the defendant No. 2 is legal and valid.(4) Whether the suit has been undervalued and Court fee paid is insufficient.(5) To what relief, if any, is the plaintiff entitled." It appears that Issue No. 2 was decided as a preliminary issue by the Additional Civil Judge, Allahabad vide his Order dated 20-10-1976 (which has been brought on the record through an affidavit dated 17-12-1999) holding "that the present suit is not barred by Order 35, Rule 5, CPC.Vide judgment and Decree dated 31/05/1997 this suit was decreed after making following observations and recording following findings.-"(i) I find that in the present interpleader suit the only question involved is whether the defendant No. 1 entitled to get rent can be easily answered on the basis that defendant No. 2 has admitted the continuance of possession of defendant No. 1 till he is validly evicted by taking recourse of law.(ii) In every case the defendant No. 2 should get the order of eviction passed after determination of his title by a competent Court of jurisdiction before he can say that he is entitled to realise the rent.(iii) The conduct of defendant No. 2 in the previous case is estoppel against him regarding the claim of rent or getting defendant No. 1 evicted.(iv) I, therefore, hold that defendant No. 1 is entitled to get the rent against defendant No. 2, Issues are answered accordingly.(v) The defendant No. 1 Sri Purshottam Das Tandon will be entitled to get the payment of rent deposited by the plaintiff.(Emphasis supplied);