Case Note & Summary
The case involves a second appeal filed by the Union of India and the Military State Officer, Pune, against the legal representatives of the original plaintiff, Dorab Godrej Anklesaria. The original plaintiff had instituted a suit challenging a notice dated 1st September, 1970 issued by the appellants for resumption of land below House No.7, Alexander Road, Pune Cantonment, Pune. The plaintiff claimed ownership of a half share in the property, with the other half owned by his paternal aunt Alibai. The plaintiff's father had executed a Will dated 11th March, 1939 creating a trust in respect of the half share, and probate was obtained. The bungalow on the land was leased to the Garrison Engineer, Pune at Rs.156 per month. The appellants issued the notice contending that the property was held on an old grant of 1853 under the condition of G.O.260 of 7th May, 1938, and expressed intention to resume the property. The plaintiff contended that the notice was illegal and invalid. The trial court decreed the suit in favor of the plaintiff, and the first appellate court confirmed the decree. The second appeal was admitted on 8th January, 1987 on the question of law regarding the right of resumption of the government. The High Court, after hearing counsel, held that the government failed to prove the terms and conditions of the grant of 1853 and the applicability of G.O.260 of 1938. The court noted that the burden of proof was on the government to establish the conditions of the grant, which it failed to discharge. Consequently, the notice of resumption was invalid. The appeal was dismissed with no order as to costs.
Headnote
A) Land Law - Resumption of Grant - Burden of Proof - The government failed to prove the terms and conditions of the grant of 1853 and the applicability of G.O.260 of 1938, which were essential to establish its right of resumption - The notice of resumption was therefore invalid - Held that the burden lies on the government to establish the conditions of the grant (Paras 1-4).
Issue of Consideration
Whether the notice of resumption dated 1st September, 1970 issued by the Union of India was valid and whether the government had the right to resume the land based on the alleged conditions of the grant of 1853 and G.O.260 of 7th May, 1938.
Final Decision
The second appeal is dismissed. The judgment and decree of the first appellate court are confirmed. No order as to costs.
Law Points
- burden of proof on government to establish grant conditions
- resumption of land under old grant
- validity of notice of resumption
- interpretation of G.O.260 of 1938
Case Details
2005 LawText (BOM) (02) 322
SECOND APPEAL NO.523 OF 1986
Shri M.S. Karnik for Appellants; Shri Mohan Pungalia for Respondents
Union of India; The Military State Officer Pune
Smt.Goolcher Dorab Anklesaria; Miss Era Dorab Anklesaria; Master Geve Dorab Anklesaria
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Nature of Litigation
Second appeal against decree in suit challenging notice of resumption of land.
Remedy Sought
Appellants sought to set aside the decree of the trial court and first appellate court which declared the notice of resumption invalid.
Filing Reason
Appellants challenged the concurrent findings of the courts below that the notice of resumption was illegal and invalid.
Previous Decisions
Trial court decreed the suit in favor of the plaintiff; first appellate court confirmed the decree.
Issues
Whether the notice of resumption dated 1st September, 1970 was valid.
Whether the government had the right to resume the land based on the alleged conditions of the grant of 1853 and G.O.260 of 1938.
Submissions/Arguments
Appellants argued that the property was held on an old grant of 1853 under condition of G.O.260 of 1938, giving them the right to resume.
Respondents argued that the government failed to prove the terms of the grant and the applicability of G.O.260, and the notice was invalid.
Ratio Decidendi
The government failed to prove the terms and conditions of the grant of 1853 and the applicability of G.O.260 of 1938, which were essential to establish its right of resumption. The burden of proof lies on the government to establish the conditions of the grant, and having failed to do so, the notice of resumption is invalid.
Judgment Excerpts
The Question of law framed is the question regarding right of resumption of the Government.
The Appellants are the original Defendants and the Respondents are the legal representatives of the original Plaintiff.
Admittedly, the bungalow was leased out to the Garrison Engineer, Pune on payment of Rs.156/- per month.
The Appellant/Defendant issued notice dated 1st September, 1970 contending that the property was held on an old grant of 1853 under the condition of G.O.260 of 7th May, 1938.
Procedural History
Original plaintiff Dorabji instituted suit challenging notice dated 1st September, 1970. Trial court decreed suit in favor of plaintiff. First appellate court confirmed decree. Second appeal filed by Union of India and Military State Officer, admitted on 8th January, 1987 on question of law regarding right of resumption. Appeal abated as against respondent No.1. Heard on 25th February, 2005 and dismissed.
