S M KHODABUX Vs. UNION OF INDIA
LAWS(PAT)-1960-4-13
HIGH COURT OF PATNA
Decided on April 02,1960

S.M.KHODABUX Appellant
VERSUS
UNION OF INDIA Respondents

JUDGEMENT

- (1.)IN support of this appeal the learned Government Advocate on behalf of the defendant-appellants put forward the contention that the Union of INdia were not competent to bring the present suit on the basis of the agreement dated 21-3-1933, entered into between the Secretary of State in Council and the President of the Anjuman Islamia Musalmeen Society. It was submitted that the Union of INdia have no title to the land in view of the provisions of Section 172(1) of the Government of INdia Act and Article 294 of the Constitution. Section 172(1) of the Government of INdia Act, 1935, is in the following terms:
"172. (1) All lands and buildings which immediately before the commencement of Part III of this Act were vested in His Majesty for the purposes of the Government of INdia shall as from that date (a) in the case of lands and buildings which are situate in a Province, vest in His Majesty for the purposes of the Government of that province unless they were then used, otherwise than under a tenancy agreement between the Governor-General in Council and the Government of that provine for purposes which thereafter will be purposes of the Federal Government or of His Majesty's Representative for the exercise of the functions of the Crown in its relations with INdian States, or unless they are lands, and buildings formerly used, for such purposes as aforesaid, or intended or formerly intended to be so used, and are certified by the Governor-General in Council or, as the case may be. His Majesty's Representative, to have been retained for future use for such purposes, or to have been retained temporarily for the purpose of more advantageous disposal by sale or otherwise ; (b) in the case of lands and buildings which are situate in a province but do not by virtue of the preceding paragraph vest in His Majesty for the purposes of the Government of that Province, and in the case of lands and buildings which are situate in INdia elsewhere than in a province, vest in His Majesty for the purposes of the Government of the Federation or for the purposes of the exercise of the functions of the Crown in its relations with INdian States, according to the purpose for which they were used immediately before the commencement of Part III of this Act."
Article 294 of the Constitution states :
"294. As from the commencement of this Constitution (a) all property and assets which immediately before such commencement were vested in His Majesty for the purposes of the Government of the Dominion of INdia and all property and assets which immediately before such commencement were vested in His Majesty for the purposes of the Government of each Governor's Province Shall vest respectively in the Union and the corresponding State, and (b) all rights, liabilities and obligations of the Government of the Dominion of INdia and of the Government of each Governor's Province, whether arising out of any contract or otherwise, shall bet the rights, liabilities and obligations respectively of the Government of INdia and the Government of each corresponding State, subject to any adjustment made or to be made by reason of the creation before the commencement of this Constitution of the Dominion of Pakistan or of the Provinces of West Bengal, East Bengal, West Punjab and East Punjab."
The argument of the learned Government Advocate is that the land in dispute was not formerly used for any federal purpose within the meaning of Section 172(1) of the Government of INdia Act, 1935, and there was no certificate of the Governor-General in Council that it was retained for future use for any federal purpose. It was, therefore, argued that the property was vested in His Majesty for the purposes of the Government of the Governor's province within the meaning of Article 294(a) of the Constitution, and accordingly the title to the property vested in the State of Bihar after the coming into force of the Constitution on 26-1-1950. It was contended, for these reasons, that only the State of Bihar is competent to bring the suit for enforcement of the contract dated 21-3-1933, and the Union of INdia was not competent to bring the suit.
(2.)IT is not possible for us to entertain the argument of the appellants at this stage. The argument was not raised before the lower courts. The question involved is not a pure question of law. If is a mixed question of law and fact and it was the duty of the appellants to raise this question in either of the two lower courts. IT is manifest that the question of applicability of Section 172(1) of the Government of India Act, 1935, depends upon the finding whether the land was used formerly for any federal purpose and whether it was certified by the Governor-General in Council that it would be retained for future use for any federal purpose. This is manifestly a question of fact and should have been agitated by the appellants in the lower courts so that opportunity could have been given to both the parties for giving proper evidence on the question. IT also appears to us that even upon the assumption that the argument of the learned Government Advocate is correct, the suit of the plaintiff cannot be defeated on that ground alone. The reason is that the terms of the agreement between the Secretary of State in Council and the Muslim Society, dated 21-3-1933, contemplate that the restrictions were imposed upon the Muslim community with regard to the construction of fresh structures of permanent or temporary nature within the mosque compound for the benefit of the railway officers occupying residential quarters located in the property of the Union of India near about the land in dispute. If the appellants had raised the constitutional point in the lower courts, the plaintiff-respondent may well have contended that the suit was maintainable as having been filed by them in their capacity of owner of the adjoining land containing the residential quarters of the railway officers for whose benefit restrictions were imposed in the agreement dated 21-3-1933. We may also refer to Order 8, Rule 2, Code of Civil Procedure, which contemplates that the defendant must raise in his pleading all matters which show that the suit is not maintainable, and all such grounds of defence as, if not raised, would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the plaint. In view of this provision it was the duty of the defendant to have raised the point about Section 172 of the Government of India Act and Article 294 of the Constitution in their written statement. Not having done so, it is not open to the defendants to take this point for the first time in second appeal in the High Court.In our opinion there is no merit in this second appeal. IT is accordingly dismissed with costs.


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