UNION OF INDIA versus VIJAY KRISHNA UNIYAL (D) THROUGH LRS.

Citation: [2017] 14 S.C.R. 68 · Decided: 23-12-2017 · Supreme Court of India · Bench: KURIAN JOSEPH · Disposal: Appeal(s) allowed

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Judgment (excerpt)

A 
B 
[2017] 14 S.C.R. 68 
UNION OF INDIA 
v. 
VIJAY KRISHNA UNIYAL (D) THROUGH LRS. 
(Civil Appeal Nos. 16949-16950 of 2017) 
OCTOBER23,2017 
[KURIAN JOSEPH AND A. M. KHANWILKAR, JJ.] 
Government Land: 
Land in possession, on 'Old Grant' terms - Notice for 
C 
resumption of the land - Suit for permanent injunction - Seeking 
order restraining the State (defendant) and its officials from 
dispossessing him from suit property - Claiming title/ownership of 
the property vide registered sale deed - Also asserted occupancy 
rights and ownership rights on account of long and undisturbed 
possession - Plea of the defendant-appellant was that the land in 
D question was covered by Old Grant for national defence requirement, 
ownership whereof belonged to the defendant-appellant - Trial court 
as well as first appellate court held that the defendant was the owner 
of the land and possession of the plaintiff was limited to occupancy 
rights - High Court dismissed the second appeal upholding 
E concurrent finding of fact on the factum of ownership - However, 
the High Court·observed the plaintiff would have liberty to raise 
the issue of title during eviction proceedings - Review petition by 
the defendant dismissed - Appeal by the defendant to Supreme Court 
seeking that the observation made by the High Court in the impugned 
judgment be set aside - Plaintiff interalia took the plea that courts 
F 
below were not expected to decide the question of title in an 
injunction suit simpliciter and that the defendant had failed to prove 
its title - Held: Mere possession of suit property by itself cannot be 
reckoned as an evidence on the issue of ownership - From the facts 
of the case, it is evident that it was well within the knowledge of the 
G plaintiff that the suit property belonged to Government (defendant) 
and the right which was transferred to him was only the right of 
enjoyment of possession of the said land granted under the Old 
Grant to his predec(!ssor-in-interest - Therefore, the observation 
made by the High Court is effaced as that observation was the 
foundation to give liberty to the plaintiff to agitate the question of 
H 
68 
UNION OF INDIA v. VIJAY KRISHNA UNIYAL (D) THR. LRS. 
69 
title - The issue of 'ownership' cannot be called an ancillary issue . A 
examined by civil court to limited jurisdiction called upon to consider 
the relief of perma,nent Injunction simpliciter - It was a direct and 
substantial issue considered by all the courtsbe/ow - The finding 
ojfact is binding on the plaintiff' and would operate as constructive 
res judicata - In the facts of the case, the defendant was able to 
B 
prove its title - The plaintiff in absence ofchallenge to the High 
Court order, can neither succeed nor can be permitted to agitate 
before Supreme Court about the correctness of the findings recorded 
by courts below on the issue of ownership - The only issue that was 
left open by appellate courts was about determination of 
compensation for the structure in terms of Old Grant and C 
Regulations - Principle of Res Judicata. 
Constitution of India: 
Art. 136 - Scope of- Held: Plenary jurisdiction of Art. 136 
is not limited to the dispensation provided in Or. XL! r. 22 of CPC -
However. the Court cannot make an order, direction or decree placing D 
the party appealing to it, in a position more disadvantageous than 
in what it would have been, had it not appealed. 
Maxim: 
"Nemo dat quod non habet" - Applicability of 
Allowing the appeals, the Court 
E 
HELD: 1. The High Court has failed to analyse the matter 
in the manner it ought to have done whilst dealing with second 
appeal under Section 100 of the Code of Civil Procedure, 1908 at 
the stage of final hearing. The High Court in the present case 
has not even adverted to the two substantial questions of law as 
F 
were framed in terms of its order nor has it analysed the matter 
appropriately. [Para 21] [94-C-D] 
2.1 The High Court rejected the plaintiff's challenge to the 
concurrent finding on the issue of ownership and then finally 
concluded that the second appeal lacked merit and dismissed G 
the same. It is unfathomable how it could then observe that the 
evidence in the shape of registered sale deed dated 14'h August, 
1980 would prima facie show the ownership of the suit property 
of the plaintiff. Merely because the possession of the suit property 
was with the plaintiff, that by itself cannot be reckoned as an H 
70 
SUPREME COURT REPORTS 
[2017] 

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