Madhya Pradesh High Court

Union Of India & Anr. vs Prakash Chandra & Ors. on 3 August, 2023

Author: Vijay Kumar Shukla

1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 3 rd OF AUGUST, 2023
MISC. APPEAL No. 1458 of 2009

BETWEEN:-
1. UNION OF INDIA THR.MILITARY ERSTATE
OFFICER MHOW CIRCLE MHOW (MADHYA
PRADESH)

2. DEFENCE ESTATE OFFICER MHOW CIRLCE
MHOW CANNT MHOW (MADHYA PRADESH)

.....APPELLANTS
(BY SHRI HIMANSHU JOSHI - ADVOCATE)

AND
1. IRCHCHA SAPUD (DECD)THR.SMT.MEHRU &
ORS.W/O IRCHCHA DHEBU, AGED ABOUT 77
YEARS, OCCUPATION: HOUSE WORK BUNGALOW
NO.74 MHOW (MADHYA PRADESH)

2. SMT. MEHRU W/O IRCHCHA DHEBU, AGED
ABOUT 87 YEARS, OCCUPATION: HOUSEWIFE A-15
SHAPUR BAUG VP ROAD MUMBAI
(MAHARASHTRA)

3. SHRI SHAPUR S/O IRCHCHA DHEBU, AGED
ABOUT 56 YEARS, OCCUPATION: BUSINESS A-15
SHAPUR BAUG 4TH FLOOR VP ROAD MUMBAI
(MAHARASHTRA)

4. SHRI DARRIUS S/O ERUCHSHAW DEBOO, AGED
ABOUT 65 YEARS, OCCUPATION: BUSINESS B-19,
SHAPUR BAUG V.P. ROAD MUMBAI
(MAHARASHTRA)

5. SMT. FRENY W/O JAL TARAPORE, AGED ABOUT
69 YEARS, OCCUPATION: HOUSEWIFE 475/15,
SALSBURY PARK PUNE (MAHARASHTRA)

6. SMT. DAISY SOLI W/O SOLI SURTI, AGED ABOUT
66 YEARS, OCCUPATION: HOUSWIFE NAWROJEE
Signature Not Verified
Signed by: VARGHESE
MATHEW
Signing time: 04-08-2023
17:12:21
2
GAMADIA ROAD MUMBAI (MAHARASHTRA)

7. DEBU THR LRS. AASTED S/O DEBU, AGED ABOUT
54 YEARS, OCCUPATION: BUSINESS 15, SHAPUR
BAUG 4TH FLOOR, V.P. ROAD MUMBAI
(MAHARASHTRA)

.....RESPONDENTS
(BY SHRI MOHAN SHARMA - ADVOCATE FOR RESPONDENT NO.3 AND
NONE FOR OTHER RESPONDENTS THOUGH SERVED)

MISC. APPEAL No. 1480 of 2009

BETWEEN:-
1. UNION OF INDIA & ANR. THR.SECRETARY
MINISTRY OF DEVENSE GOVT.OF INDIA NEW
DELHI (DELHI)

2. DEFENSE ESTATE OFFICER CIRCLE JABALPUR
THROUGH DEFENCE ESTATE OFFICER MHOW
DISTRICT INDORE (MADHYA PRADESH)

.....APPELLANTS
(BY SHRI HIMANSHU JOSHI - ADVOCATE)

AND
1. PRAKASH CHANDRA & ORS. S/O KESHRIMAL JI
SHAH, AGED ABOUT 60 YEARS, OCCUPATION:
BUSINESS 59,MAIN STREET MHOW
DISTT.INDORE M.P. (MADHYA PRADESH)

2. DR. ASHWINI JAISWAL S/O RAM JAISWAL, AGED
ABOUT 44 YEARS, OCCUPATION: DOCTOR
BUNGALOW NO. 70 MAL ROAD MHOW (MADHYA
PRADESH)

3. STATE OF M.P. THROUGH COLLECTOR
COLLECTOR DISTRICT INDORE (MADHYA
PRADESH)

.....RESPONDENTS
(SHRI RISHI TIWARI - ADVOCATE FOR RESPONDENT NO.1 AND 2 AND
SHRI UMESH GAJANKUSH - A.A.G FOR RESPONDENT NO.3 STATE)

These appeals coming on for hearing this day, the court passed the
following:
Signature Not Verified
Signed by: VARGHESE
MATHEW
Signing time: 04-08-2023
17:12:21
3
ORDER

Regarding being had to the facts, circumstances and issues involved in both the appeals, they are being decided by common order.

2. For the sake of convenience, the facts are noted from M.A. No.1458/2009.

3. The present appeal is filed u/O.43 Rule 1(u) of the CPC being aggrieved by the order dated 12.2.2009 passed by Upper District Judge, Mhow, District Indore in Regular Civil Appeal No.16/2009 whereby the judgment and decree dated 3.5.2005 passed by the trial Court in Civil Suit No.71-A/2003 has been set aside and the matter has been remanded for fresh trial.

4. The facts of the case are that on 3.7.1984 the respondents/ plaintiffs filed a suit for declaration and permanent injunction for land and bungalow No.74 situated at Mall Road, Mhow within the cantonment area. The respondents/plaintiffs have pleaded that they are in possession of suit premises since several years. The present appellants/defendants submitted in their written statement that the appellants/defendants sent notices dated 20.3.1990 and 23.3.1990 to respondents/plaintiffs giving reference of Order 179 dated 13.9.1836 of Governor General Order (GGO) whereby it has been informed to them to vacate the land and bungalows (constructed building) on the land and to deliver its vacant possession within a month to Defense Estate Officer, Mhow. The appellants had also sent the cheque of compensation of

Rs.40,666.50 for authorised structure standing thereon the disputed suit premises to the plaintiffs/respondents. The appellants resumed the suit premises vide resumption Order dated 20.3.1990. Aggrieved by the aforementioned notices dated 20.3.1990 and 23.3.1990 and cheque of compensation, the respondents plaintiffs filed a Civil Suit before the trial court Signature Not Verified Signed by: VARGHESE MATHEW Signing time: 04-08-2023 17:12:21

for declaration and permanent injunction in connection with the suit property and for declaration of notices as illegal and void.

5. The trial court on the basis of documentary and oral evidence on record has dismissed the suit of the respondents. The trial court further held that the disputed bungalow and servant quarters constructed on Plot No.74 situated at Ferry Road, Mhow is on the land of Union of India and Old grand terms are applicable on it.

6. Aggrieved by the judgment and decree of the trial court, the plaintiffs/respondents filed the civil appeal. During the pendency of the appeal an application u/o.1 Rule 10 of CPC has been filed on behalf of the State of Madhya Pradesh impleading them as party in the appeal as well as in the suit. Similarly an application u/O.22 Rule 10 and 151 of CPC have been filed by one Mr. Shailendra Singhal for impleading as party in the appeal as well as in the suit being subsequent purchasers. The appellate Court remanded the case to the trial court for fresh trial.

7. Counsel for appellants submits that the appellate court has committed an error while remanding the matter merely on the ground that the application u/O.1 Rule 10 CPC was filed by the State for impleading them as party and also an application was filed on behalf of the subsequent purchaser u/O.22 Rule 10 read with Section 151 of CPC. The same could not have been a ground for remand. It is argued that order of remand cannot be passed as a matter of routine and to fill up the lacuna.

8. Per contra, learned counsel for State and the subsequent purchasers/respondents submitted that the order of remand passed by the appellate court is legal and valid. It is argued that since the validity of the resumption notices issued by the appellant Union of India were under challenge Signature Not Verified Signed by: VARGHESE MATHEW Signing time: 04-08-2023 17:12:21

and the State Government was claiming title over the same land on the basis of notification dated 14.8.1947 and 9.8.1947 that the land of Mhow town was vested with the Holkar State after the British government and thereafter by subsequent legislation the same land was transferred to erstwhile government of Madhya Bharat and then to the present State of Madhya Pradesh. The title of the appellant was seriously disputed by the State as the old grand and Governor General Order (GGO) were not brought on the record and proved. It is further argued that the GGO does not apply to Bombay proceedings.

9. On behalf of the respondents the following contentions have been raised:-

(i) The land originally belongs to Holkar State and in terms of treaty of Mandsaur in 1817 between Holkar and British Government, 6 square miles of land was given to British crown for limited purpose of stationing the troops. This land came to be known as Mhow cantonment.

(ii) The original plaintiffs since their forefathers and predecessor in title are owning and possessing the Bungalow No.74, Mall road, Mhow, District Indore.

(iii) By Gazette Notification dated 9.8.1947 and 14.8.1947 land of Mhow was vested into Holkar State.

(iv) In November, 1983 Military State Officer, Jabalpur came to Mhow and started measuring Bungalow, whereby the original plaintiffs comprehended the possible attack by the Union of India to grab the Bungalow No.74.

(v) In July 1984 the original plaintiffs had preferred a Civil Suit for declaration of title and permanent injunction.

(vi) On 20.03.1990 during pendency of suit, Under Secretary to the

Signature Not Verified Signed by: VARGHESE MATHEW Signing time: 04-08-2023 17:12:21

Government of India, issued notice in respect to Bungalow No.74 informing that an exercise of power conferred on it by Governor General's Order on 179 dtd.12.09.1836 directed the plaintiffs to quit and deliver the possession of the Bungalow.

(vii) On 03.05.2005 the civil suit filed by the original plaintiffs was dismissed.

(viii) On 09.05.2005 First Appeal was preferred by original plaintiffs.

10. At the appellate stage an application u/O.1 Rule 10 of the CPC was moved on behalf of the State government to implead the State claiming title on the basis of gazette notification dated 9.8.1947 and 14.8.1947 and the application u/O.22 Rule 10 CPC was filed by the subsequent purchasers to implead them in the suit. The aforesaid applications were allowed and by the impugned order the matter has been remanded back to the trial court for fresh trial considering the rival submissions regarding GLR, GGO and Notification dated 9.8.1947 and 14.8.1947 relief by the State.

11. Counsel for appellants argued that there was no need for remand of the case as the entry in General Land Register (GLR) maintained by the Cantonment Board are conclusive fact of holding and nature of rights of holder. He referred the judgment passed by the Apex Court in the case of Usha Kapoor and others Vs. Government of India and others (2014) 16 SCC 481 and also referred the judgment passed by co-ordinate bench in Civil Revision No.339/2017 Roby John Vs. Union of India in which a reference has been made to the judgments passed by the Apex Court in the case of Union of India Vs. Tek Chand (1999) 3 SCC 565 wherein it has been held that the GLR is statutory nature framed u/S.43 of Cantonment Act. He also relied upon the judgment passed by the Apex Court in the case of Union of India and Ors. Vs. Signature Not Verified Signed by: VARGHESE MATHEW Signing time: 04-08-2023 17:12:21

Robbert Zomawla Street (2014) 6 SCC 707 wherein it is held that the entries in the GLR maintained under Cantonment Land Administrative Rules is conclusive evidence of title of the land.

12. Counsel for respondents referred to the judgment passed by the Division Bench of this court in the case of Association of the Residents of Mhow Vs. Union of India & Ors 2010(1)MPLJ 486 wherein in para 35 the Division Bench held that the claim of the Union of India that Mhow is the property of the Central Government cannot be based on the mere fact that Mhow is a Cantonment governed by the provisions of 1924 Act. In other words, there may or may not be land within the limits of Mhow Cantonment which do not being to the Central government and this is a question of fact which has to be decided in each individual case on the basis of pleadings and evidence adduced before the Court relating to notifications issued under the 1924 Act.

13. The subsequent purchasers has also stated that in the year 1944 the Crown Representative informed the authorities that the Cantonment of Mhow is situated in Mhow territory and neither the crown representatives nor the Military authorities possess any rights more than that of a user and all the proprietary rights of the land vests in the State Darbar (Holkar State) who are the real landlords. It was also stated that the proposed amendment in the GLR was also incorrect. On 02.12.1986 resumption notice was issued by the Union of India to Mr. Jabar Chand (Predecessor-in-title of respondent No.01) stating that the suit land belongs to the President of India and is held on "old grant" terms as contained in GGO Order No.179 and the government was entitled to resume the same (Exhibit-P/1). A cheque of Rs.13,081.50/- against the valuer of

Signature Not Verified Signed by: VARGHESE MATHEW Signing time: 04-08-2023 17:12:21

authorised structure standing on the suit land was also enclosed.

14. I have heard the learned counsel for parties and perused the record.

15. Order 41 of the Code provides for appeals from original decrees. The Code empowers the appellate court to order remand in three situations. These three situations are covered by Order 41 Rule 23, Order 41 rule 23-A and Order 41 Rule 25 which read as under :

''23. Remand of case by appellate court.- Where the court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the appellate court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the court from whose decree the appeal is preferred, with directions to readmit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.

23-A. Remand in other cases.- Where the court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a retrial is considered necessary, the appellate court shall have the same powers as it has under Rule 23.

25. Where appellate court may frame issues and refer them for trial to court whose decree appealed from:- Where the court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the appellate court essential to the right decision of the suit upon the merits, the appellate court may, if necessary, frame issues, and refer the same for trial to the court from whose decree the appeal is preferred, and in such case shall direct such court to take the additional evidence required; and such court shall proceed to try such issues, and shall return the evidence to the appellate court Signature Not Verified Signed by: VARGHESE MATHEW Signing time: 04-08-2023 17:12:21

together with its findings thereon and the reasons therefor within such time as may be fixed by the appellate court or extended by it from time to time."

16. Order 41 Rule 23 is invocable by the appellate court where the appeal has arisen from the decree passed on a preliminary point. In other words, where the entire suit has been disposed of by the trial court on a preliminary point and such decree is reversed in appeal and the appellate court thinks proper to remand the case for fresh disposal. While doing so, the appellate court may issue further direction for trial of certain issues.

17. Order 41 Rule 23-A has been inserted in the Code by Act 104 of 1976 w.e.f. 1-2-1977. According to Order 41 Rule 23-A of the Code, the appellate court may remand the suit to the trial court even though such suit has been disposed of on merits. it provides that where the trial court has disposed of the suit on merits and the decree is reversed in appeal and the appellate court considers that retrial is necessary, the appellate court may remand the suit to the trial court.

18. In the case of Jegannathan vs. Raju Sigamani & Anr. (2012) 5 SCC 540, the Apex Court after considering the provisions of Order 41 Rule 23A CPC held that where the trial Court has disposed off the matter on merit and not on any preliminary issue, the apex Court may direct for retrial. In the present case, both the suits were dismissed by the trial Court on merit and not on preliminary issue.

19. In the light of above enunciation of law, the facts of the present case are appreciated. There is a serious dispute regarding GLR and GGO conferring title to the appellants. It is submitted that even the original grant has not been brought on record by the parties. One of the suit is for declaration of title and

Signature Not Verified Signed by: VARGHESE MATHEW Signing time: 04-08-2023 17:12:21

for declaration of notices of resumption as invalid and in the other suit though the declaration of title is not prayed but the declaration of notices issued by the appellant regarding resumption have been sought to be invalid. Thus, on the basis of the entries in the GLR and GGO whether the appellant could have claimed title over the property and could have issued the notices to the plaintiffs for resumption is yet to be decided. The counsel for State has also filed application for impleading them as party which has been allowed and they are claiming their title on the said house on the basis of notifications dated 14.8.1947 and 9.8.1947 stating that after the British Government, the house was transferred to Holkar State and from Holkar State through various legislation the house has been transferred to the State of Madhya Pradesh. They are seriously disputing and opposing the notices of resumption issued by the appellants which requires adjudication by the trial court after appreciation of facts and evidence.

20. Under these circumstances, the appellate court has rightly remanded the matter to the trial court for fresh trial. Considering the long pendency of the suit, the trial court is directed to expedite the trial as far as possible within a period of six months from the date of communication of the order. The appeals sans merit and are hereby dismissed. Both the appeals are hereby dismissed.

(VIJAY KUMAR SHUKLA) JUDGE VM

Signature Not Verified Signed by: VARGHESE MATHEW Signing time: 04-08-2023 17:12:21