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It appears that Issue No. 2 was decided as a preliminary issue by the Additional Civil Judge, Allahabad vide his Order dated 20-10-1976 (which has been brought on the record through an affidavit dated 17-12--1999) holding "that the present suit is not barred by Order 35, Rule 5, CPC.

Vide judgment and Decree dated 31st May, 1997 this suit was decreed after making following observations and recording following findings.--

"(i) I find that in the present interpleader suit the only question involved is whether the defendant No. 1 entitled to get rent can be easily answered on the basis, that defendant No. 2 has admitted the continuance of possession of defendant No, 1 till he is validly evicted by taking recourse of law.
3.4 In their supplementary counter-affidavit dated 2-11-1998 the respondents have stated to this effect:--
The instant writ petition as well as Writ Petition No. 22134 of 1993 should have been decided together but since the later writ petition was decided first to bring correct facts and law to the notice of this Court and to overcome the technical objection relating to the facts stated in the counter-affidavit of that writ petition, this supplementary counter-affidavit is being filed bringing certain facts which goes to the root of the matter which will enable this Court to pronounce judgment; the claim of the petitioner is based on the sale certificate dated 12-4-1848. through which title is being claimed; Petitioner's Writ Petition No. 175 of 1969, challenging resumption by the Union of India, was dismissed on the ground of alternative remedy with a direction to him to get title adjudicated by a competent Court; since the only dispute in the interpleader suit filed by Allahabad Polytechnic was, who has the right to get rent from the plaintiff, and the dispute of title of land between the Union and the petitioner was not involved, the right of land lordship alone could be determined; Right to received rent on the strength of ownership is altogether different from the land lordship; In last paragraph of its judgment this Court had clarified that as Allahabad Polytechnic was the tenant of and paying rent to the appellant as long the appellant is not evicted from the house by taking recourse to a legal proceeding, the demand of rent by the Union of India was wholly uncalled for who should have first taken proceeding for ejectment of the appellant, and after its success in that suit should have made a demand for rent, and without that the appellant's right to realise rent could not be disturbed; The disputed Bungalow stands recorded in General Land Register (copy, appended as Annexure SCA-3) in B-3 category and the Government of India shown as its 'owner' and the land management is by the Military Estate Officer; at no point of time either Manmohan Das, who was recorded as holder of occupancy right, or his predecessor or his successors, questioned the authenticity of the entries in the General Land Register; When Manmohan Das died on 18-7-1952, his successors were required to get their name substituted inasmuch as Clause 5 of the General Order by Governor General in Council No. 179 dated 12-9-1836 (copy appended as Annexure-SCA 3A) required all grant to be registered and the Cantonment Land Administration Rules, 1925 required preparation and maintenance of GLR of all lands in prescribed form, and the Successor Rules, 1937 also imposed the same requirement and require mutation in the register and. therefore, the successors of Manmohan Das should have promptly applied for mutation but this was not done; the petitioner applied for mutation of his name through application dated 21-10-1952 (Copy appended as Annexure-SCA 4), based on family settlement stating that the property has been transferred to him in accordance with the family settlement, without obtaining prior permission on account of misconception on the part of his father, and thus this irregularity be condoned; as prior permission is required only in a case where the land/property belongs to the Government of India and thus it amounts to admission of the ownership of the property being vested in the Government of India; When the petitioner made this application he was fully aware of the entries, yet he took no objection in regard to the land being owned by the Government of India and the management by the Defence Estate Officer of the old grant; In his application dated 1-10-1992 (Copy appended as Annexure-SCA 5), filed before the Defence Estate Officer, Lucknow Circle, for grant of permission to transfer, he stated that the site of Bungalow No. 29 is a Cantonment tenure (as old grant); By his letter dated 3-12-1963 (Annexure-SCA 6) the petitioner had himself requested the Cantonment Board to look out to the interest of the trees on the lands in question; the Cantonment Executive Officer vide letter dated 17-1-1966 acting as an agent of Defence Estate Officer, informed the petitioner that if he so desires he can purchase 4 green trees standing on the land in question; but when the petitioner did not opt to purchase, they were put to auction, which was held on 19-2-1966 and 4-3-1966, and the sale price was deposited in the Government treasury, all within his knowledge; in the year 1940 the Defence Estate Officer/Collector had fixed rents of agricultural/non-agricultural sites in the Cantonment, as required under Rule 8 of the Land Administration Rules, 1937, under which rent is to be fixed only in regard to the land belonging to the Government of India; a true copy of the charts prepared by the two authorities on 9-4-1940 (Copy Annexures SCA 7 and 8 respectively) describing Survey No. 143 as B-3 category; in his application (Annexure-SCA 9), filed by the petitioner for permission to transfer Bungalow No. 29 to various persons also he described the land as old grant; On various occasions the Cantonment Executive Officer acting as an agent of the Defence Estate Officer had issued letters authorising the contractors to enter into the Bungalow and cut the trees, which were sold at public auction, which established that the land was always managed by the Defence Executive Officer on behalf of the Defence Estate Officer and treated to be owned by the Government of India to which either the petitioner or his predecessors took no objection till the beginning of the dispute; this Court has not recorded any finding about the nature or manner in which the property belongs to the petitioner nor has determined the nature of the right of the petitioner; This Court held, in the absence of proof about the grant, that the petitioner could not be evicted by mere notice of resumption; it is being advised to state that this judgment is not a final determination of the nature of the petitioner's right, leaving out specifically to the Union of India to institute legal proceedings for his eviction; thus if the petitioner wants to be recorded as free-hold or otherwise of the property, he must institute a suit for establishing his right, as held by this Court in Writ Petition No. 175 of 1969; the Supreme Court had merely refused to interfere with the Judgment of this Court under Article 136 of the Constitution of India and has not independently examined the nature of the rights of the petitioner and of the Union of India; in the interpleader suit proceeding, the Court did not issue any declaration in favour of the petitioner for recording his name; the sale certificate shows that the property sold was Bungalow known as 'General Pauli Saheb Wala' which proves that it is a Government Property; in the maps of the years 19O2-04 and 1910-11 of the Survey of India relating to old Cantonment, Survey No. 143 Bungalow No. 29 has been shown in the old Cantonment, which existed from prior to 1801 or in any case from 1801 and had this Bungalow been privately owned property of the predecessors of the petitioner in these maps would not have included within the limits of the Cantonment; the entire property under the Cantonment was earlier governed by General Orders issued by the Governor General in Council, the Cantonment Act, 1889, the Government Grants Act, 1895, and the Cantonment Act, 1910; with effect from 1924, the entire Cantonment matters are governed by the Cantonment Act, 1924, the Government of India has framed a number of Rules in order to manage the properties of the Cantonment; the Administration of property, maintenance of record and mutation are governed by the Cantonment Land Administration Rules, 1937 (copy appended as SCA-12); under Rule 10 of these Rules the maintenance of General Land Register is maintained and all mutations are made in different columns; Under Rule 15, sale of land under Cantonment is prohibited without definite orders of the Central Government and it was neither pleaded nor proved by the petitioner that the Central Government ever passed an order of sale of the land, from the Sale Register, it is clear that it was in respect of sale of Bungalow No. 29, on the basis of which the petitioner is recorded as holder of occupancy right, which was held by the earlier occupier, namely, A Scott and George Spencer; the word 'owner' has been defined under Section 2(XXVI) of the Cantonment Act as 'includes any person who is receiving or is entitled to receive the rent of any building or land whether on his own account or on behalf of himself and other or an agent or trustee or who would so receive the rent or be entitled to receive it, if the building or land were left to a tenant'; there is no provision under Rule 10 for making mutation, other than already done in favour of the petitioner, and thus the application filed by the petitioner was not maintainable and no further orders would be passed; the rejection of the subsequent writ petition filed for same prayer will have the force of res judicata and the instant writ petition is not maintainable on this ground; and that in view of the decisions of this Court in Jaipal v. Board of Revenue, U. P., Allahabad, AIR 1957 Allahabad 205; Lekhraj v. Board of Revenue, 1981 RD 18 and Shiv Raj Gupta v. Board of Revenue 1989 All LR (Revenue Section) 30 this writ petition filed for direction to mutate his name is not maintainable.
3.5 In his Rejoinder to this supplementary counter-affidavit, the petitioner has stated to this effect :--
Both writ petitions, being on different causes of action, were not decided together; the claim of the petitioner in regard to his absolute ownership rights was based on the basis of the auction sale certificate executed on 12-8-1849, as well as by adverse possession as decided by this Court in the Second Appeal; it is wrong to say that only the main building was purchased as the word 'Bungalow' included open apartment also, the boundaries of which and its location were also given in the sale certificate, which was considered upto the Supreme Court; in the interpleader suit it was decided that defendant No. 2 should have filed a suit for determination of rights in which Issue No. 1 was decided in his favour; in AIR 1988 Orissa 8 (sic) it has been held that title can be adjudicated in an interpleader suit, which amounts to a suit for declaration of title; this Court in the Second Appeal has held that the land of the petitioner is not a Cantonment land of which he is owner in his private capacity and the classification of the land in a Cantonment area are for those lands which are vested and owned by the Government; is not correct, as alleged by the Respondents, that the petitioner is an occupant tenant in view of the judgments of this Court and of the Supreme Court; the petitioner had applied for mutating his same after the death of his father, when this property came to his share; the G.G.O. 179 of 1836 is not applicable to the land of the petitioner, as held by the Courts; the Rules are applicable, whether the lands are of Government or are private;
(1) The question of title/ownership having been considered necessary was gone into in the interpleader suit filed after the first Wit petition, after deciding Issue No. 2 against the Union and correctly distinguishing the Bombay decision cited by Sri Srivastava which is apparent from the judgment of the trial Court itself. The first appellate Court also considered necessary to deal with the same though it decided erroneously in favour of the Union of India by completely misconceiving the factual/legal position, misapplying the theory of presumption and misconstruing the alleged admission of the petitioner in the mutation application. This judgment was rightly set aside by this Court in the Second Appeal which, too, considered necessary to adjudicate the question of title and ownership and adjudicated it in favour of the petitioner after taking into account the fact that the plaintiff was not discharged on the first hearing. The judgment of the Supreme Court clearly states that the Union of India had failed to establish its title. All these findings are binding on the Union of India/ respondents as res judicata. As held in Syed Shamshul Haque v. Sita Ram Singh, AIR 1978 Patna 151, question of title in an interpleader suit is required to be gone into. In the suit the plaintiff had not denied the Land lordship of the petitioner and had merely took up a defence on account of service of the notice of resumption issued by the Union and hence that suit was maintainable. Thus, there is no force in the submission of Sri Srivastava that the finding recorded in the interpleader suit are nullity and/or not binding on the Union of India/Respondents. Since this judgment is inter-party its subsequent distinction even by the Supreme Court is of no help to the respondents.