Sunil Ambwani, J. - (1.) UNION of India through Secretary, Ministry of Defence, New Delhi and Garrison Engineer, Military Engineering Services, Agra have filed this writ petition for quashing the impugned orders dated 3.8.2002 passed by District Judge, Agra in Civil Revision No. of 2002 by which he has dismissed the revision in limine, against order dated 24.5.2002 passed by Additional Civil Judge, (Senior Division) Court No. 19 Agra in Misc. Case No. 88 of 1998 rejecting petitioners objection under section 47 of the Code of Civil Procedure, for execution of the decree dated 25.5.1970 in Civil Appeal No. 294 of 1969; decreeing the suit for recovery after possession of ejectment of defendants appellants/petitioners in this writ petition from Bungalow No. 194, Agra Cantonment, Agra and the land comprised in its compound, with a further direction to the defendants 1 and 2 to remove barrack which have been constructed on a part of the compound and to deliver possession over the land underneath to the plaintiffs within three months failing which plaintiffs will be entitled to get the barracks demolished through Court at the expense of defendants 1 and 2. The decree sought to be executed also awarded mesne profits @ Rs. 325/ - per month from the date of institution of the suit to the actual date of delivery of possession along with costs. Brief facts giving rise to the instant writ petition are stated as follows. Sri Hamid Ali Khan son of Sri Soofi Ahmad Ali Khan was the holder of occupancy right of property bearing Bungalow No. 194, Agra Cantonment, General Land Register Survey No. 160 area 3.563 acres class B -3 land held as old grant which Government of India was the landlord. By a joint application dated 12.6.1946, filed by Sri Hamid Ali Khan son of Hashim Ali Khan and Lala Chhail Behari to the Military Estates Officer, they requested for permission to transfer Bungalow/House No. 194, G.L.R. Survey 160 by letter dated 3.8.1946, the permission was granted by the Government of India, after which a sale deed dated 11.9.1946 was executed by Hamid Ali Khan in favour of Chail Behari Lal, and his two brothers Sri Nawal Kishore and Kapoor Chand. The construction of the Bungalow were taken on rent by Military Estates Officer in June 1942, from Hamid Ali Khan @ Rs. 125/ - per month. At the time of sale deed executed by Hamid Ali Khan in favour of Chhail Behari Lal and his two brothers, the Bungalow was in possession of Military Estates Officer, Nawal Kishore and others filed suit No. 842 of 1958 against Union of India for recovery of arrears of rent and damages, and for vacant possession. The suit was decreed on 13.9.1961 for Rs. 1,600/ - towards rent and damages. The other prayers were rejected. The Trial Court while deciding issues Nos. 3 and 6 to the effect, whether the defendants are entitled to retain remaining portion of the premises, and whether the defendants were entitled to retain construction made on the land, recorded findings as follows: It was argued by the learned counsel for the defendant that the land of Bungalow was an old grant land and its ownership remained in the Government of India and it never was transferred to the lessor so the defendant could made its constructions on this land and was not liable to pay damages for the same. In the first place it has not been proved that the land beneath the Bungalow in suit was old grant. It has come down the D.W. 1 S.K. Sharma that G.L.R. is maintained and it shows the classification and area of all plots but the same has not been produced for reasons best known to the defendant D.W. 1 did not even look into that register. He merely stated that generally bungalows of this kind are constructed over old grant land. Prima facie this evidence is not sufficient to establish that this land was old grant in nature. The agreement Ex. A -1 describes the property as held on Cantonment tenure, I, therefore, find myself unable to accept the defendant's argument.
(2.) IN the second place even if that land was old grant, under clause 6 of General Order No. 179 dated 12.9.1936 by the Government General in Council, the Government could resume land in giving one month's notice and paying the value of such building etc. as might have been authorised to be erected. Admittedly there was notice in this case that the Government was resuming any part of Bungalow No. 194, Taj Road. In this view of the matter also the Government must pay damages for remaining in occupation of the barracks built in the compound of plaintiffs Bungalow. These issues are decided accordingly. The Union of India did not file any appeal against the aforesaid judgment and decree dated 13.9.1961 became final between the parties. Nawal Kishore and other filed another suit No. 6 of 1763 against Union of India for recovery of rent and damages for use and occupation of the bungalow. This suit was decreed by the Trial Court on 20.3.1968, The Union of India preferred Civil Appeal No. 31 of 1968 which was allowed on 28.1.1979 and the suit was dismissed with the findings that there was no valid contract of lease between the parties in respect of the Bungalow and consequently the claim for rent cannot be decreed. As regards damages for use and occupation in respect of the land on which barracks have been constructed, the Appellate Court found that the suit was barred by section 80 C.P.C. making it clear that respondents had given possession over their bungalow and had not been paid rent, and that their claim has failed merely on technical ground, Sri Nawal Kishore and his two brothers filed another suit namely suit No. 99 of 1968 on 27.4.1968 for recovery of Rs. 7,800/ - as arrears of rent and damages and a further relief that Defendant No. 2 i.e. Garrison Engineer, Military Engineering Service, Agra Cantt be dispossessed from the main bungalow and the land of the barracks in suit and that the plaintiffs be put in actual possession of the main Bungalow and the said land. Mesne profits @ Rs. 50/ - per day were also claimed. The suit was decreed by Trial Court on 25.10.1969 only in so far it relates to the recovery of Rs. 8,977.50. No other relief was granted by the Trial Court. While deciding issue No. 4 to the effect whether the defendants are liable to be evicted for the alleged non payment of rent and damages, the Trial Court found that the suit was simply based on tenancy and no question of title was involved. Against the said judgment both Nawal Kishore and others as well as Union of India and others filed appeals Nos. 294 of 1969 and 66 of 1970 respectively. Both appeals were heard together by common judgment dated 25.5.1970. Whereas the appeal filed by Union of India was dismissed the appeal filed by Nawal Kishore and others was allowed. The Appellate Court held that no contractual tenancy came into existence between the plaintiff and Union of India. The relationship which came into existence on account of occupation of the house under the provisions of the Cantonment (House Accommodation) Act, 1993 can be termed only as statutory tenancy. The lease was a creature of the Act, which was not contingent on any other requirement or on the execution of a formal leased deed. Since the whole scheme of the Act did not leave any option open to the owner of the house it cannot be said that the lease was the result of voluntary and free consent of the owner. It was creature of the Act in respect of free will of the owner of the house irrespective of the execution of a formal lease deed, and thus the provisions of Article 299(1) of the Constitution of India relating to assurance of the property by execution of a formal deed in a particular form were not applicable to the instant case. A lease deed was written out. It was not registered. However, it did not comply with the provisions of Transfer of Property Act. The original document was not summoned as such the secondary evidence cannot be taken. The possession of the house was delivered to the Central Government in 1959 and that the suit for ejectment was filed on 27.4.1968. The rent was not paid after February 1964 for which successive suits were filed for realisation of rent. The rent was withheld on the ground that the plaintiff did not carry out repairs in the house. The Union of India, however, did not prove that there was no such condition to carry out repairs. A composite notice under section 80 C.P.C. and section 106 of the Transfer of Property Act was found to be valid having the effect of terminating the tenancy of Union of India and thus the tenants were held liable to ejectment with the aforesaid findings the appeal No. 294 of 1969 filed by Nawal Kishore and others were allowed and the suit for recovery of possession after ejectment of defendants 1 and 2 from the bungalow and the land comprised in its compound was decreed. Defendants 1 and 2 were directed to remove the barracks which were constructed on a part of the compound and deliver possession over the land underneath, failing which the plaintiffs were entitled to get the barracks demolished through Court. The plaintiffs were also held entitled to Rs. 325/ - as mesne profits from the date of institution of suit till the date of actual delivery of possession over the bungalow as well as Court fee. The decree of the Trial Court dismissing the claim for damages for use and occupation of the land underneath the barracks constructed by the defendants 1 and 2 in the compound of the bungalow, were upheld, and the appeal of the plaintiff in that regard was dismissed. The proportionate costs were directed to be paid. The plaintiffs were made entitled to 2/3rd cost of the civil appeal No. 294 of 1969. The appeal filed by Union of India was dismissed and the decree of the Court regarding Rs. 8977.50P was confirmed.
(3.) THE Union of India preferred two Second Appeal i.e. Second Appeal No. 1935 of 1970 and Second Appeal No. 1936 of 1970. Both the appeals abated by the order of the High Court on 8.2.1984 as the legal heirs of the plaintiffs respondents were not brought on record. In the meantime plaintiffs had filed execution application No. 16 of 1977 in which Union of India filed objection which has been dismissed by the Trial Court as well as Revisional Court, as above.;