Uttarakhand High Court
Mussoorie Dehradun Development … vs Lt. General R.K. Jasbir (Retired) And … on 17 April, 2026
2026:UHC:2831
IN THE HIGH COURT OF UTTARAKHAND AT
NAINITAL
Second Appeal No.49 of 2011
Mussoorie Dehradun Development Authority, through its
Secretary .... Appellant
Versus
Lt. General R.K. Jasbir (Retired) and others
......... Respondents
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Presence:-
Mr. Rahul Consul, learned counsel for the appellant.
Mr. Piyush Garg, learned counsel for the respondents.
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Hon'ble Siddhartha Sah, J.
This second appeal has been preferred against
the judgment and decree dated 11.03.2011 passed by the
Additional District Judge/FTC-III, Dehradun in Civil
Appeal No. 10 of 2007, Mussoorie Dehradun
Development Authority v. Lt. Gen. R.K. Jasbir Singh &
Others, as well as the judgment and decree dated
14.02.2007 passed by the Additional Civil Judge-I (Senior
Division), Dehradun in Original Suit No. 621 of 2004, Lt.
Gen. R.K. Jasbir Singh & others v. Mussoorie Dehradun
Development Authority.
2. The genesis of the present second appeal is
traceable to a suit instituted by the
plaintiffs/respondents before the Court of the Civil Judge
(Senior Division), Dehradun, seeking declaration and
possession. The suit was filed on the premise that the
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plaintiffs are the owner and Bhumidhars of part of
Khasra No. 430 (New No. 908), situated at village
Adhoiwala, Central Doon. DEAL, Dehradun acquired
14.17 acres of plaintiff’s land in Khasra No.430, 431,
307, in village Adhoiwala in 1990, but left 0.670 hectare
land out of Khasra number 430. DEAL put up fencing
around acquired land blocking access to part of Khasra
number 430 (New No. 908), left by DEAL. The suit
property is fully described in schedule of properties and
attached sketch given at the end of the plaint. MDDA
occupied 0.4000 hectare of Khasra number 430, new
number 908 in 1996 and started constructing flats. The
plaintiffs are in correspondence with the defendant since
1998 when they came to know about illegal occupation of
their land in 1998. Plaintiffs gave an application to
Tehsildar, Central Doon for joint survey of Khasra
number 430. Suit number 30/2001-2002 titled Lt. Gen.
R.K. Jasbir Singh vs. MDDA was filed in the court of
SDM for demarcation under sec. 41 of Land Revenue Act.
Joint survey of land under occupation of MDDA was
carried out by Tehsildar, Central Doon along with
Kanungo and Lekhpal. MDDA sent their Tehsildar along
with their Lekhpal for joint survey. The report of joint
survey submitted by Tehsildar, Central Doon shows
0.4000 hectare of land of plaintiffs under occupation of
MDDA.
3. That it is further pleaded in the plaint that
MDDA referred the matter to DGC (Revenue) for his
opinion, who opined that though land is shown under
Class 6(2) that is Abadi of land Revenue Manual, but that
does not take away the ownership of Bhumidhar who are
entitled to compensation. MDDA later requested the
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SLAO, Special Land Acquisition Officer, Dehradun, for
initiating of acquisition proceedings. The SLAO expressed
his inability to initiate acquisition proceedings with
retrospective effect. Consequent to above
correspondence, then Secretary MDDA suggested to file a
suit under 209 and 229 of UP ZA & LR Act for
declaration of title and eviction. He assured the plaintiff
No. 1 that they would compromise the suit and pay
compensation. Accordingly, suit number 39/2004 titled
Lt. Gen. R.K. Jasbir Singh and another versus MDDA
and others was filed in the court of SDM Dehradun. In
the meantime, Vice Chairman and Secretary MDDA were
transferred. The above suit has been dismissed by SDM
on the grounds that the suit is time-barred. This was
done inspite of various rulings of Revenue Board and
High Court Allahabad that Abadi does not take away
ownership of Bhumidhar and he can be declared owner
and Bhumidhar even if there is some construction on
land. The land is shown as Abadi in Khatauni, though
the plaintiffs are still shown owner in Khatauni. It is in
the interest of justice that plaintiffs be declared owner
and Bhumidhar of Khasra No.430 (New No.908) and
possession be delivered to plaintiffs after demolition of
unauthorized and illegal construction. The litchi and
guava orchard was fetching Rs.20,000/- per year.
Defendant is liable to pay damages of Rs.20,000/- per
year. While the defendant accept the fact of illegal
occupation of 0.4000 hect. of plaintiffs land in Khasra
No. 430, (New No.908) they have been avoiding payment
of compensation on one pretext or the other.
4. That it was also pleaded that cause of action
arose in July 1996 when the defendants started
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construction on plaintiff’s land without acquiring it and
later they had entered in class 6(2) of Land Revenue
Manual. It further arose on 11th June 2003 when
Tehsildar submitted joint survey report and the MDDA
refused to pay compensation. The plaintiffs prayed for
the following reliefs:- A. Plaintiffs be declared owner and
Bhumidhar of Khasra number 430 (New No. 908),
measuring 670 hectare, of which 0.4000 hectare is under
occupation of MDDA. B. Possession of suit property be
restored to plaintiffs after demolition of unauthorized
construction. C. Mesne profit at the rate of Rs. 20,000/-
per acre per year be awarded to the plaintiffs. C1. The
defendant is liable to handover possession to plaintiff
(Nos.1, 2/1 and 2/2) pay damages and cost.
5. The aforesaid suit was numbered as OS
No.621 of 2004, Shri R.K. Jasbir Singh and anr. Vs.
M.D.D.A. and the defendant MDDA contested the suit by
filing its W.S. and contended that Onus to prove the
allegations raised in para 1 & 2 of the plaint is on the
plaintiff; that, contents of para 3 & 4 of the plaint are
matter of record. Contents of para 5 of the plaint are
wrong and are denied. The plaintiff filed the suit
purporting to be under section 209 and 229 of UPZA &
LR Act, which was dismissed. It is wrong to state that the
Secretary, MDDA made any suggestion to the plaintiff to
file a suit under the above provisions of the aforesaid Act.
It is further wrong to state that the Secretary, MDDA
made any assurance that in case the plaintiff files any
such alleged suit, the same would be compromised by
the defendant or that any alleged compensation would be
paid. The present suit is legally not maintainable and is
barred by the principles of res- judicata. The present suit
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is therefore liable to be dismissed under order 7. Rule-11
CPC in limine at the threshold itself. The last portion of
para 5 of the plaint is argumentative in nature and
therefore is liable to be expunged. The onus, however, is
on the plaintiff to prove the same. Onus to prove the
allegations raised in para 6 of the plaint is on the
plaintiff. It is wrong to state that is owner of the said
property. It is further wrong to state that the plaintiff can
be declared as owner/Bhumidhar by this learned court.
It is further wrong to state that any possession could be
delivered as alleged. All such reliefs had been sought in
the suit as stated in para 5 of the plaint before the
Revenue Court and the said suit was dismissed and
therefore present suit is barred by the principles of res-
judicata. It is further submitted that this learned court
has no jurisdiction to appear and decide the present suit.
Contents of para 7 of the plaint are wrong and are
denied. It is wrong to state that the defendant accepted
any fact with regard to alleged occupation. It is
emphatically denied that the plaintiff is the owner of the
property as stated in its para of the plaint. It is submitted
that the land in question was recorded as Abadi and is in
possession of MDDA. MDDA is recorded owner duly
recorded in the present Revenue Records and as owner
MDDA made flats over the same and the same have been
allotted to different individuals, who are in possession
thereof and consequently MDDA is not in possession. The
possession was delivered by MDDA in 2003/04 to the
different individuals. The plaintiff is not the owner of the
property, however, he has alleged the same in the plaint.
Onus to prove the ownership of the plaintiff is on him.
However, he has to get the alleged papers corrected
before the Revenue Court. Till such time corrections are
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made the plaintiff cannot agitate the present suit and the
Civil Court lacks jurisdiction to give any relief to the
plaintiff as the plaintiff has sought declaration and the
declaration cannot be granted by the Civil Court.
Contents of para 8 of the plaint are wrong and are
denied. No cause of action for the present suit arose in
1996 or on any other date. The suit lacks cause of action
and therefore the suit is liable to be dismissed. Contents
of para 9 of the plaint are wrong and are her denied. This
Hon’ble Court has no jurisdiction to hear and decide the
present suit. Contents of para 10 of the plaint are wrong
and are denied. The suit is undervalued for purpose of
court fee and jurisdiction and therefore for this reason
also the plaint is liable to be rejected. Contents of para
11 of the plaint are vague and incomplete. The contents
therefore are not admitted.
6. That it was further contended that the plaintiff
is not entitled to any of the reliefs claimed and the suit of
the plaintiff is liable to be dismissed with cost. No
declaration can be sought from this Hon’ble Court as the
land in question according to the plaintiff is agricultural
land. This learned court lacks jurisdiction to grant any
such declaration. Declaration as stated in para 10 of the
plaint whereas on relief-B no court fee has been paid, as
relief -B is for possession and for mandatory injunction.
Since no court fee has been paid on relief-B as such
plaint is liable to be rejected. No court fee on relief -C has
also been paid. As Plaintiff has paid court fee on such on
this ground the plaint is liable to be rejected. The matter
stated in the plaint is with regard to the declaration in
respect of land which according to the plaintiff is
agricultural land and therefore this learned court lacks
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jurisdiction to hear and decide the present suit. In para 8
of the plaint, the plaintiff has stated that cause of action
arose in July, 1996 and the suit has been filed in
November, 2004 after more than 8 years. Limitation for
declaration as provided under Article 58 of the Limitation
Act, 1963, is three years when the right to sue first
accrues. According to the plaintiff, right to sue arose in
1996 and therefore the present suit is barred by
limitation. The suit is legally barred and is liable to be
dismissed with cost.
7. In reply to the written statement filed by the
defendant, a replication was filed on behalf of the
plaintiffs. In the replication, the version set out in the
plaint was largely reiterated. It was further pleaded that,
at the time of construction of the boundary wall, it was
discovered that 0.4000 hectares of the unacquired land
had been encroached upon by MDDA. The plaintiffs came
to know about the change of land use only after the year
1998. No notice regarding the change of land use was
ever issued to the plaintiffs. The plaintiffs continue to be
recorded as owners in the revenue records. It was further
pleaded that the defendant neither purchased the land
nor acquired or requisitioned it. There is no limitation
prescribed for filing a suit under Sections 209 and 229(B)
of the U.P. Z.A. & L.R. Act, 1950, and therefore, the suit
was wrongly dismissed. The plea of res-judicata is
incorrect. After the land was declared Abadi, the
provisions of the U.P. Z.A. & L.R. Act ceased to apply.
The Revenue Court has no jurisdiction in the matter, and
any order passed without jurisdiction is a nullity and
does not operate as res-judicata. There is no estoppel on
a pure question of law, nor was the matter decided on
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merits. It was further pleaded that the defendants have
occupied the land belonging to the plaintiffs. In the
Khatauni, the plaintiffs are shown as clear owners and
Bhumidhars. The Revenue Court has no jurisdiction.
Revenue records, report of joint survey of Tehsildar,
report of DGC (Revenue), clearly state that the plaintiffs
are the owners of Khasra No.430 (908). The cause of
action arose when the defendants illegally occupied
portion of Khasra No. 430 (new No. 908). It is not
understood how the defendant calls it declaration of
ownership of agricultural land. After declration of “Abadi”
the land ceases to be agricultural land. The plaintiffs
have been shown as owners of the said property in the
revenue records, even after it was occupied the
defendants. The plaintiffs became aware of the illegal
occupation by MDDA only in the year 1998, and since
then, they have been continuously contesting the matter
before the courts of the Tehsildar and the Assistant
Collector. The defendants have attempted to mislead the
Court by contending that the suit is barred under Article
58 of the Limitation Act, 1963. The present case falls
under Article 65 of the Act, as the principal relief sought
is recovery of possession. Therefore, the suit is not barred
by limitation. The plaintiffs also filed a replication in
response to the amended written statement. In the said
replication, it was specifically pleaded that the contents
of paragraph 7A are wrong and denied. It is wrong to say
that defendant is shown as owner in the Revenue
Records. The plaintiffs are shown as owners of the suit
property, i.e., Khasra No. 430 New No. 908, Village
Adhoiwala, Dehradun. Defendant has illegally occupied
plaintiffs land. The contents of paragraph 7B are also
incorrect and are denied. The latest Khatauni filed by the
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plaintiffs shows Abadi in Khasra No. 908, Village
Adhoiwala. If a plot comes in Abadi, the ownership does
not change. Issue to this effect has already been framed
and will be proved with documents already on file. Any
plot which comes under Abadi only the Civil Court has
jurisdiction to adjudicate suit in respect of the plot.
Question of jurisdiction has already been decided by
Hon’ble Court, it cannot be raised again.
8. On the basis of the respective pleadings of the
parties, the Trial Court framed the following issues:
1. Whether the plaintiff is the owner of the
disputed property as Bhumidhar?
2. Whether the defendant has taken
possession of the disputed property
unlawfully?
3. Whether the present suit is barred by the
provisions of the U.P. Zamindari Abolition and
Land Reforms Act?
4. Whether the present suit is barred by
limitation?
5. Whether the suit has been undervalued
and insufficient court fee has been paid?
6. To what relief, if any, is the plaintiff
entitled?
7. Whether the suit is barred by the
principle of res-judicata? If yes its effect!9
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9. During the pendency of the suit, an application
under Order XXVI Rule 9 CPC was filed on behalf of the
defendant, stating that constructions existed over the
suit property in the form of flats occupied by various
individuals. It was contended that since possession was
with different occupants, a local inspection through a
Court Amin was necessary, and a prayer was made for
appointment of a Court Amin.
10. The said application was opposed by the
plaintiffs, who contended that the defendant had
continued construction even after the institution of the
suit and that no commission was required, as the suit
primarily related to declaration and recovery of
possession.
11. After considering the objections, the trial court,
vide order dated 12.01.2007, rejected the application for
appointment of a Court Amin.
12. In support of their case, the plaintiffs filed
documentary evidence along with the List 6 Ga-certified
copy of plaint filed in the Court of the SDM; the report of
Tehsildar Kendriya Doon and the report of the DGC
(Revenue); three Khataunis and certified copy of the order
of SDM Addl. Collector Dehradun. Vide list 19 Ga
Khatauni Fasli 1400 bearing Paper Nos. 20C1/1 to
20C1/15; an extract of Khasra No. 430, Village
Adhoiwala Central, for the year 1992-93 Paper No. 56C;
a certified copy of the General Power of Attorney Paper
No. 37-A1; the Advocate Commissioner’s report Paper No.
24-A1. The affidavit of plaintiff’s witness R.K. Jasbir
Singh Paper No. 49-A1 was also brought on record. The
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said witness was duly cross-examined by the learned
counsel for the defendant.
13. Further documentary evidence was filed by the
defendant vide List No. 80 Ga1-the original application
Paper No. 81Ka 1. On behalf of the defendants, the
affidavit of examination-in-chief of Shri V.D. Nautiyal
Paper No. 75A1 was filed along with Khasra and
Khatauni records (Annexures 1 and 2). The said witness
was cross-examined by the learned counsel for the
plaintiffs as DW-1.
14. After hearing the arguments of the learned
counsel for the parties and perusing the entire record,
Issue No. 1 was decided in favour of the plaintiffs,
holding that they are Bhumidhars of the disputed land.
The basis for such a finding was that the defendant, in
its written statement, did not dispute the ownership of
the plaintiffs. The plaintiffs had filed a photocopy of the
khatauni as an annexure, and the defendant’s witness
also proved the same by filing a photocopy of the said
document. Thus, the defendant institution itself provided
evidence for the plaintiffs. On the basis of the evidence
led by both parties, along with Khatauni No. 13/1, the
trial court concluded that the plaintiffs are Bhumidhars
of the disputed property.
15. On the basis of paragraph 7 of the affidavit of
the defendant’s witness, as well as document Nos. 75/1-
5, it was incumbent upon the defendant institution to
establish that it had obtained possession through due
process of law or had otherwise acquired rights over the
property. However, no such evidence was led by the
defendant. Therefore, the trial court held that the
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possession of the defendant over the disputed land was
wholly illegal. Accordingly, issue No. 2 was also decided
in favour of the plaintiffs.
16. On Issue No. 3, vide order dated 24.10.2005,
the trial court held that since the land had been declared
Abadi, there was no bar to the jurisdiction of the Civil
Court.
17. Issue No. 4 was decided against the defendant
on the ground that, in view of Article 65 of the Limitation
Act, 1963, the suit had been filed within the prescribed
period of limitation.
18. Issue No. 5, relating to valuation and court
fees, was disposed of vide order dated 24.10.2005,
whereby the plaintiffs were directed to carry out the
necessary amendment. Subsequently, vide order dated
06.02.2006, the trial court allowed the amendment, and
thereafter, upon the report of the Munsarim, no objection
to the revised valuation was raised by the defendant.
19. Issue No. 7, relating to the bar of res-judicata,
was decided in favour of the plaintiffs. It was held that
the order of the Revenue Court, having been passed on
technical grounds, did not operate as res-judicata in the
present suit.
20. In view of the findings recorded on Issue Nos. 1
and 2, wherein it was established that the plaintiffs are
Bhumidhars and owners of the disputed land, and that
the defendant institution is in unauthorized occupation
thereof without any legal right, the trial court held that
the plaintiffs are entitled to recovery of possession.
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21. Accordingly, vide judgment and order dated
14.02.2007 passed by the 1st Additional Civil Judge
(S.D.), Dehradun, the suit of the plaintiffs was decreed
with costs. The plaintiffs were declared owners of the
disputed property, and the defendant institution was
directed to vacate the same and hand over peaceful
possession to the plaintiffs within one month. It was
further directed that the plaintiffs shall be entitled to
mesne profits at the rate of Rs. 20,000/- per acre per
annum from the year 1996 till the date of delivery of
possession.
22. Aggrieved by the judgment and decree dated
14.02.2007 passed by the First Additional Civil Judge
(Senior Division), Dehradun, the defendant preferred an
appeal in the Court of the District Judge, Dehradun, vide
memorandum of appeal dated 16.03.2007. The said
appeal was registered as Civil Appeal No. 10 of 2007,
MDDA v. Lt. Gen. R.K. Jasbir Singh & Others.
23. During the pendency of the appeal before the
Court of the ADJ/FTC-I, Dehradun, a similar application
under Order XXVI Rule 9 CPC was filed by the
defendant-appellant seeking inspection of the suit
property through a Court Amin. The said application was
opposed by the respondents and was rejected by the first
appellate court on the ground that it had been filed only
to delay the proceedings. Vide order dated 06.02.2008,
the said application for inspection was rejected.
24. Thereafter, during the pendency of the
aforesaid civil appeal, an amendment application was
filed on behalf of the defendant-appellant. In the said
application, it was stated that, as per the averments
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made in the replication, the suit land is not in the
occupation of MDDA but is in the possession of the
general public, and that multi-storied flats have been
constructed thereon. It was contended that this fact had
also been admitted in the replication filed by the
plaintiffs. On this basis, it was urged that the suit is bad
for non-joinder of necessary parties, as the actual
occupants have not been impleaded, and that the suit
has been wrongly instituted against MDDA alone.
Accordingly, the defendant-appellant prayed that in
paragraph 10 of the written statement, after the word
“denied” and before the word “the”, the following words
be added:-
“The plaintiff, in his replication, particularly in
paragraph 8, has stated that the property is
worth crores of rupees.”
At the end of para 14, the following be added:-
“Plaintiff’s man relief is for declaration of title
as contained in relief -A. The said relief for
declaration is barred by principle of res-
judicata as well as barred by limitation in view
of what is provided under Article 58 as well as
barred by limitation in view of what is provided
under Article 58 of the Limitation Act. The
relief of possession can only be claimed against
the occupants. The plaintiff has admitted in
the replication that the possession is with
general public as contained in para 15 of the
replication. It has further been stated that the
land is in occupation of various people and
that multi-storied flats have been constructed14
2026:UHC:2831thereon. Actual occupants of the flats have not
been arraigned parties in the suit. Relief of
possession can only be sought against those
individuals, who are in possession and not
against those who are not in possession.
Defendant is not in possession so the relief of
possession cannot be sought against MDDA.
From the plaint, as well as from replication
filed by the plaintiff it is abundantly clear that
MDDA is not in possession and those in
possession have not been impleaded as
defendant. The suit is therefore bad for non
joinder of necessary parties and even otherwise
the suit is barred by limitation as cause of
action according to plaintiff arose in 1996 and
therefore the relief of possession is also barred
by limitation.”
25. Objections to the said amendment application
were filed on behalf of the plaintiffs, contending that the
application was mala fide, designed to delay and protract
the litigation, and therefore liable to be dismissed. It was
further contended that a same plea regarding
impleadment of allottees had already been taken before
the trial court and had been rejected. It was also
submitted that the plaintiffs and their counsel had been
visiting the site since 1998 along with revenue and
MDDA officials. The construction was in progress at that
time, with no flat was occupied till filing of the suit. It
was contended that MDDA knew it very well that the land
had not been acquired, yet it continued with construction
and allotment of flats when various cases were going on
in courts. It was further contended that the plaintiffs
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cannot be made to pay for the wilful and illegal acts of
the defendant. It was also pointed out that the
amendment application and supporting affidavit had
been signed by counsel instead of the defendant.
Additionally, it was submitted that the defendant’s
counsel had already addressed arguments on all issues,
including ownership, jurisdiction, limitation, court fees,
and res-judicata, and had argued in detail on various
aspects of the plaint, including the remaining area of
Khasra No. 430 not occupied by the defendant. It was
further contended that the Secretary, MDDA had neither
taken steps for acquisition of the land through the
Special Land Acquisition Officer. Accordingly, it was
prayed that the amendment application be dismissed
with heavy costs.
26. The said amendment application was
considered by the Additional District Judge/1st FTC,
Dehradun, and vide order dated 28.07.2008, the same
was rejected on the ground that it was neither bona fide
nor helpful for the final adjudication of the case.
27. The aforesaid civil appeal was finally heard by
the Additional District Judge/3rd FTC, Dehradun. After
affording a detailed hearing to the learned counsel for the
parties, the first appellate court came to the conclusion
that, from the pleadings on record, it is clear that the
plaintiffs were recorded owners and Bhumidhars in the
revenue records.
28. The plaintiffs had filed a copy of Khatauni No.
13 Ga1 before the trial court, wherein the names of
Kunwar Jasbir Singh, S/o Maharaja Rasbir Singh, and
Rajkumari Geeta Devi, W/o Jasbir Singh, were recorded
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as tenure holders. In the said Khatauni, in Column No.
9, with respect to old Khasra No. 430, the possession of
the defendant, MDDA, was reflected.
29. Before the trial court, the defendant, MDDA,
examined its witness, Shri V.D. Nautiyal, and filed a copy
of the Khatauni, which was marked as Paper No. 75 Ka-
1/5. The said document was found to be an exact
photocopy of the Khatauni filed by the plaintiffs.
30. In view thereof, the appellate court observed
that the defendant itself had filed the Khatauni before the
trial court and had not raised any objection regarding its
admissibility. Furthermore, the defendant’s witness, Shri
V.D. Nautiyal, had duly proved the said document. Thus,
there was sufficient evidence on record in the form of the
Khatauni. The trial court was, therefore, justified in
accepting its veracity and relying upon it. Consequently,
the finding of the trial court declaring the plaintiffs as
Bhumidhars of the disputed property was held to be in
accordance with law and based on facts.
31. So far as the possession of MDDA over the
disputed property is concerned, the appellate court noted
that, on one hand, the defendant had stated in its written
statement that it was not in actual possession, as the
property had been constructed upon and possession
handed over to various persons. On the other hand, its
witness, Shri V.D. Nautiyal, in his examination-in-chief,
stated that MDDA was in possession of the disputed
property. This fact also stood corroborated by Column
No. 9 of the Khatauni, wherein possession of MDDA over
old Khasra No. 430 was recorded.
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32. Thus, from the evidence on record, it was
evident that MDDA was in possession of the disputed
property. The appellate court further held that the
evidence adduced by the defendant itself substantiated
the case of the plaintiffs. Accordingly, the findings of the
trial court on this issue were affirmed as being in
consonance with the evidence on record.
33. The appellate court also considered
documentary evidence on record, including Paper No. 8C,
being a report submitted by the Additional Tehsildar,
Dehradun, before the SDM, Sadar, Dehradun. The said
report indicated that in old Khasra No. 430, area 0.501
hectare land, the names of Jasbir Singh and others were
recorded. During record operations, a portion measuring
0.4000 hectare was carved out and assigned new Khasra
No. 908, which was recorded as Abadi under Class 6(2),
over which MDDA had constructed a colony. The matter
pertains to the plaintiffs and MDDA. From this
document, the appellate court observed that MDDA had
changed the nature of the land from agricultural to Abadi
recorded in Class 6(2) and that a new Khasra number
908 had been assigned.
34. Further reliance was placed on Paper No. 9C1,
being a letter dated 09.12.2003 written by the DGC
(Revenue) to the Secretary/Vice-Chairman, MDDA. The
said letter pertained to an application dated 18.11.2003
filed by Lt. Gen. Jasbir Singh for inspection of Khasra No.
908, area 0.4000 hectare, Village Adhoiwala, Dehradun.
35. In the said letter, it was stated that upon
perusal of the Tehsildar’s report dated 27.11.2003 and
Khatauni No. 238 relating to Fasli years 1398-1401, it
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was clear that the owner of old Khasra No. 430, area
1.6800 hectares, was Lt. Col. Jasbir Singh. Out of this an
area of 0.4000 hectare had been taken into possession by
the department and construction had been carried out
thereon. It was further noted that no compensation had
been paid to the landowner.
36. It was also observed that during survey
operations, the said portion had been assigned new
Khasra No. 908 and was wrongly recorded under Class
6(2) in the revenue records. However, such incorrect
recording did not affect the ownership of the applicant.
Upon spot inspection and measurement, the ownership
of the applicant over the disputed land stood established.
37. The DGC (Revenue) opined that there was no
legal impediment to payment of compensation to the
landowner. From this fact, the appellate court inferred
that the plaintiffs were the owners of the disputed
property and that MDDA was in occupation thereof.
38. However, the appellate court noted that there
was no material on record to establish how MDDA had
come into possession of the land. No evidence was led by
the defendant to show that possession had been obtained
through any lawful means. In the absence of such
evidence, the possession of MDDA over the disputed
property was held to be illegal. The findings of the trial
court in this regard were found to be clear, justified, and
in accordance with law, and no interference was deemed
necessary.
39. On the question of limitation, the appellate
court held that since the plaintiffs had sought relief of
19
2026:UHC:2831
possession in addition to declaration, Article 65 of the
Limitation Act, 1963 would apply, prescribing a period of
12 years. As the plaintiffs came to know about the
defendant’s possession in the year 1998, the suit was
held to be within limitation. The findings of the trial court
on this issue were accordingly affirmed4041. With
regard to the plea of res-judicata, the appellate court held
that the same was not attracted. The defendant itself had
stated that the land in question was Abadi, and
therefore, prima facie, the jurisdiction of the Revenue
Court was excluded. The earlier suit under Section 229-B
had been dismissed on technical grounds. It is well
settled that a decision rendered by a court lacking
jurisdiction does not operate as res-judicata.
40. On the aforesaid reasoning, the first appellate
court concluded that the judgment of the trial court was
based on proper appreciation of evidence and did not
warrant interference. Accordingly, the appeal was
dismissed with costs vide judgment and order dated
11.03.2021 passed by the Additional District Judge/3rd
FTC, Dehradun.
41. Aggrieved by the judgments and decrees of the
courts below, the present second appeal has been
preferred. The second appeal was admitted by this Court
vide order dated 14.11.2011 on substantial questions of
law Nos. (ii) and (vi) as framed in the memorandum of
appeal, which read as under:-
ii. Whether possession of the property could be
ordered to be delivered to the respondents,
when possession of the property/ building was20
2026:UHC:2831already delivered to various individuals, who all
have not been made parties to the litigation?
vi. Whether the suit of the respondents/
plaintiffs was barred under Article 58 of the
Limitation Act, 1963 since the Relief sought was
to declare themselves as the owner of the
property?
42. While addressing substantial question of law
No. (ii), as framed in the memorandum of appeal, Mr.
Rahul Consul, learned counsel for the appellant, while
assailing the impugned judgments, firstly submitted that
MDDA was initially in possession of the land in question
and had developed a colony thereon. It was further
submitted that possession had already been handed over
to certain individuals, and that MDDA is no longer in
possession of the property.
43. It was contended that the first appellate court
failed to consider that no effective decree could be
passed, as MDDA was not in possession of the suit
property. It was argued that merely on the basis of the
Khatauni, both the trial court and the first appellate
court held the plaintiffs to be Bhumidhars and entitled to
declaration of ownership as well as recovery of
possession. According to the learned counsel, the decree
passed by the trial court is inexecutable in the facts and
circumstances of the present case.
44. Mr. Rahul Consul further submitted that an
earlier suit for declaration and possession had been filed
before the Assistant Collector, First Class, which was
21
2026:UHC:2831
dismissed; therefore, the subsequent suit was barred by
the principles of res-judicata.
45. He further referred to paragraphs 7A and 7B of
the written statement, which were incorporated by way of
amendment. In paragraph 7A, it has been pleaded by the
defendant-appellant that the land in question was
recorded as Abadi and was in possession of MDDA. It
was further pleaded that MDDA is recorded as owner in
the revenue records and, being the owner, had
constructed flats over the property and allotted the same
to various individuals, who are presently in possession. It
was further contended that possession had been handed
over by MDDA during the years 2003-2004, and
therefore, MDDA is no longer in possession.
46. In paragraph 7B, it has been pleaded that the
plaintiffs are not the owners of the property, although
such ownership has been asserted in the plaint. It was
contended that the burden to prove ownership lies upon
the plaintiffs. It was further argued that merely on the
basis of certain entries in revenue records, the plaintiffs
cannot maintain the present suit, and that the Civil
Court lacks jurisdiction to grant the relief sought,
particularly when the relief of declaration is claimed in
respect of matters falling within the domain of the
Revenue Court. Referring to the cross-examination of
plaintiff No. 1, Shri R.K. Jasbir Singh, learned counsel
submitted that the plaintiffs had knowledge of the
construction being raised over the suit property by the
defendant, yet no objection was raised at the relevant
time.
22
2026:UHC:2831
47. Learned counsel further drew the attention of
this Court to the judgment of the Hon’ble Supreme Court
in Moreshar Yadaorao Mahajan v. Vyankatesh Sitaram
Bhedi (D) through LRs & Others, 2022 SCC OnLine SC
1307, and specifically to paragraphs 17, 18, and 19
thereof. Relying on the said judgment, it was contended
that the subsequent occupants of the buildings
constructed by the defendant over the suit property are
necessary parties, and unless they are impleaded, no
effective and executable decree can be passed. It was
submitted that the plaintiffs themselves have admitted
that certain persons are in possession of the property;
however, such persons have not been impleaded as
parties to the suit. Lastly, it was submitted that in view
of the aforesaid facts, the submissions advanced, and the
legal position laid down by the Hon’ble Supreme Court in
Moreshar Yadaorao Mahajan (supra), substantial
question of law No. (ii) deserves to be answered in favour
of the defendant-appellant. Para 17, 18 & 19 of the said
judgment are being extracted hereunder:-
“17. This Court, in the case of Mumbai
International Airport Private Limited (supra), has
observed thus:
“15. A “necessary party” is a person who
ought to have been joined as a party and in
whose absence no effective decree could be
passed at all by the court. If a “necessary
party” is not impleaded, the suit itself is
liable to be dismissed. A “proper party” is a
party who, though not a necessary party, is
a person whose presence would enable the23
2026:UHC:2831court to completely, effectively and
adequately adjudicate upon all matters in
dispute in the suit, though he need not be a
person in favour of or against whom the
decree is to be made. If a person is not
found to be a proper or necessary party, the
court has no jurisdiction to implead him,
against the wishes of the plaintiff. The fact
that a person is likely to secure a
right/interest in a suit property, after the
suit is decided against the plaintiff, will not
make such person a necessary party or a
proper party to the suit for specific
performance.”
18. It could thus be seen that a “necessary
party” is a person who ought to have been
joined as a party and in whose absence no
effective decree could be passed at all by the
court. It has been held that if a “necessary
party” is not impleaded, the suit itself is liable
to be dismissed.
19. As already discussed hereinabove, the
plaintiff himself has admitted in the plaint that
the suit property is jointly owned by the
defendant, his wife and three sons. A specific
objection was also taken by the defendant in
his written statement with regard to non-joinder
of necessary parties. Since the suit property
was jointly owned by the defendant along with
his wife and three sons, an effective decree
could not have been passed affecting the rights
24
2026:UHC:2831
of the defendant’s wife and three sons without
impleading them. Even in spite of the defendant
taking an objection in that regard, the plaintiff
has chosen not to implead the defendant’s wife
and three sons as party defendants. Insofar as
the reliance placed by Shri Chitnis on the
judgment of this Court in the case
of Kasturi (supra) is concerned, the question
therein was as to whether a person who claims
independent title and possession adversely to
the title of a vendor could be a necessary party
or not. In this context, this Court held thus:
“7. …….From the above, it is now clear that
two tests are to be satisfied for determining
the question who is a necessary party.
Tests are” (1) there must be a right to some
relief against such party in respect of the
controversies involved in the proceedings;
(2) no effective decree can be passed in the
absence of such party.”
48. Per contra, Mr. Piyush Garg, learned counsel
for the respondents, submitted that for determination of
substantial question of law No. (ii), it must first be
established whether the alleged occupants were
necessary parties to the suit. It was contended that, in
the absence of proper pleadings and evidence on record,
such occupants cannot be treated as necessary parties.
On the contrary, an adverse inference is liable to be
drawn against the defendant, as it is the defendant who
would be in possession of the relevant records regarding
the status of the alleged allottees.
25
2026:UHC:2831
49. Learned counsel for the respondents further
referred to the application dated 20.12.2006 filed by the
defendant before the trial court. In the said application,
the defendant itself had stated that constructions existed
over the suit property in the nature of flats, which were
occupied by different individuals. On that basis, the
defendant had sought appointment of a Court Amin with
the following directions:- Court Ameen be directed to
measure the land in question with its boundaries. He be
directed to prepare a plan. He further be directed to give
the nature of constructions and the names of the
occupants thereof.
50. The said application was opposed by the
plaintiffs, and vide order dated 12.01.2007, the trial
court rejected the same on the ground that the suit was
primarily for declaration of ownership and recovery of
possession. The court observed that the plaintiffs had
already admitted that they were not in possession of the
suit property, and therefore, no useful purpose would be
served by issuing a commission for local inspection.
51. Learned counsel further referred to a similar
application dated 18.01.2008 filed by the defendant at
the appellate stage before the Court of ADJ/FTC-I,
Dehradun, seeking inspection through a Court Amin. The
said application was also opposed by the plaintiffs and
was rejected by the first appellate court vide order dated
06.02.2008 on the ground that it was filed only to delay
the proceedings.
52. It was next submitted that an amendment
application was filed by the defendant at the appellate
stage seeking to incorporate a plea regarding non-joinder
26
2026:UHC:2831
of necessary parties. The said application was opposed by
the plaintiffs and was rejected by the first appellate court
vide order dated 28.07.2008.
53. Referring to the aforesaid orders, learned
counsel submitted that once the amendment seeking to
raise the plea of non-joinder of necessary parties was
rejected, the said issue has attained finality and cannot
be re-agitated.
54. Learned counsel further submitted that in the
affidavit of examination-in-chief, the defendant’s witness,
Shri V.D. Nautiyal, had stated that MDDA’s possession is
recorded in the Khatauni in the current settlement with
respect to Khasra No. 430 (new No. 908), area 0.4000
hectare. It was contended that, as per the revenue
records, possession is shown to be with MDDA, and the
question of possession recorded in revenue entries
cannot be used to defeat the present civil suit. Referring
to the provisions of Order I Rule 9 CPC, learned counsel
submitted that no suit shall be defeated by reason of
non-joinder of parties, and the Court is competent to
adjudicate the rights of the parties before it.
55. It was further contended that although certain
persons may be in occupation of the flats constructed
over the suit property, the defendant remains the
principal party, and there was no necessity to implead
such occupants.
56. Learned counsel also pointed out that the
defendant has taken mutually contradictory pleas in
paragraph 7A of the written statement. On one hand, it is
stated that MDDA is in possession, while on the other
27
2026:UHC:2831
hand, it is claimed that possession had already been
handed over to allottees in the years 2003-2004.
57. It was further argued that the use of the term
allotted itself indicates that the jural relationship
continues with the defendant, and therefore, the
defendant cannot evade liability on that ground. It was
also contended that the defendant has suppressed
material facts from the Court, and therefore, an adverse
inference ought to be drawn against it, particularly as it
failed to disclose the complete status of the alleged
allottees. It was emphasized that there is no pleading to
the effect that the flats had been constructed prior to the
institution of the suit. There is neither any assertion nor
any evidence to establish that possession had been
transferred before the suit was filed.
58. On the contrary, it is the defendant’s own case
that the occupants of the buildings are allottees of the
defendant, thereby reinforcing the plaintiffs’ contention
that the defendant remains responsible for the acts in
question.
59. In reply to the judgment of the Hon’ble
Supreme Court in the case of Moreshar Yadaorao
Mahajan vs. Vyankatesh Sitaram Bhedi (D) thr. LRs. and
others, reported in 2022 SCC OnLine SC 1307, learned
counsel for the plaintiff-respondents, Mr. Piyush Garg,
contends that the aforesaid judgment was rendered in a
factual background where the plaintiffs themselves had
admitted in the plaint that the suit property was jointly
owned by the defendant, his wife, and his three sons. A
specific objection was also taken by the defendant in the
28
2026:UHC:2831
written statement with regard to non-joinder of necessary
parties.
60. He further draws the attention of the Court to
the facts of the present case and contends that, firstly,
there is no co-owner, and the defendant entity itself
claims exclusive ownership and possession of the
property. It is also contended that the defendant has
allotted portions in the building to various allottees, who
are presently residing therein; however, the dates of such
allotments have not been disclosed in the written
statement.
61. In this background, learned counsel for the
plaintiffs/respondents submits that the judgment in
Moreshar Yadaorao Mahajan (supra), as relied upon by
the applicant, would not be applicable to the present
case. In support of his submissions, he has placed
reliance upon the judgment of the Hon’ble Supreme
Court in the case of H. Anjanappa and others vs. A.
Prabhakar and others, reported in 2025 SCC OnLine SC
183, and has referred to paragraph 58 thereof. Placing
reliance on the said judgment, he submits that every
transferee pendente lite, if any, is bound by the decree,
even if he is not a party to the proceedings and even if he
had no notice thereof. As such, there was no necessity to
implead the allottees.
62. He has also referred to another judgment of
the Hon’ble Supreme Court in the case of Alka Shrirang
Chavan and another vs. Hemchandra Rajaram Bhonsale
and others, reported in 2026 SCC OnLine SC 55, and has
placed reliance on paragraph 41.2 thereof. Referring to
paragraph 41.2 of the said judgment, Mr. Piyush Garg
29
2026:UHC:2831
contends that ‘where one of the parties to the suit
transfers the suit property or a portion thereof to a third
party, the latter would be bound by the result of the
proceedings, even if he had no notice of the suit or the
proceedings’. He thus reiterates that, in law, there was no
requirement to implead the alleged allottees, as
contended in paragraph 7A of the written statement.
63. Now, substantial question of law No. ii is
required to be examined and considered in light of the
rival submissions advanced by the parties.
64. On one hand, Mr. Rahul Consul, learned
counsel for the defendant/appellant, has contended that
the MDDA was initially in possession of the land in
question and had developed a colony thereon, and that
possession of the buildings has already been handed over
to certain individuals. It is thus contended that MDDA is
no longer in possession of the suit property. He has
further argued that the first appellate court failed to
consider that no effective decree could have been passed,
as MDDA was not in possession of the suit property, and
therefore, the decree passed by the trial court is
inexecutable in the facts and circumstances of the case.
65. Mr. Rahul Consul, Advocate, has also placed
reliance upon paragraphs 7A and 7B of the written
statement in support of his submissions. He has further
relied upon the judgment of the Hon’ble Supreme Court
in the case of Moreshar Yadaorao Mahajan (supra), to
contend that the allottees were necessary parties and, in
their absence, the judgments of the trial court and the
first appellate court cannot be sustained.
30
2026:UHC:2831
66. Per contra, Mr. Piyush Garg, learned counsel
for the respondents, has submitted that for
determination of substantial question of law No. ii, it
must first be established whether the alleged occupants
were necessary parties to the suit. He contends that in
the absence of proper evidence on record, such
occupants cannot be treated as necessary parties.
67. The learned counsel for the respondents has
further drawn the attention of the Court to an application
filed by the defendant before the trial court seeking
appointment of a Court Amin to ascertain the nature of
construction and the names of the occupants, which
came to be rejected by the trial court vide order dated
12.01.2007. He has also referred to a similar application
filed at the appellate stage for inspection, which was
rejected by the first appellate court vide order dated
06.02.2008.
68. Mr. Piyush Garg, learned counsel for the
plaintiffs/respondents has further referred to an
amendment application filed at the appellate stage,
seeking to incorporate the plea of non-joinder of
necessary parties, which was rejected by the first
appellate court vide order dated 28.07.2008. With
reference to the aforesaid orders, learned counsel
submits that once the amendment seeking to raise the
plea of non-joinder of necessary parties was rejected, the
said issue attained finality and could not be re-agitated.
He has also referred to the affidavit of examination-in-
chief of the defendant’s witness, wherein it has been
stated that the entry regarding MDDA’s possession is
recorded in the Khatauni. He had also contended that
31
2026:UHC:2831
since the defendant remains the principal party, there
was no necessity to implead the aforesaid occupants. He
further argued that the use of the term “allotted” itself
indicates that the jural relationship continued with the
defendant. There is neither any assertion nor any
evidence to show that possession had been transferred
before the suit was filed. Therefore, the defendant
remains responsible for its own acts.
69. Upon scrutiny and examination of the rival
contentions and the legal submissions advanced by the
parties, it is evident that the defendant, MDDA, has
consistently taken the stand that it is in possession. In
fact, the witness of the defendant himself has stated,
while adverting to the question of possession that MDDA
is in possession.
70. Paragraph 7A of the written statement states
that the land in question was recorded as Abadi land and
is in possession of MDDA. It further states that MDDA is
the recorded owner in the revenue records. However, it is
also mentioned that flats were constructed over the said
land and allotted to different individuals who are in
possession thereof, and consequently, MDDA is not in
possession. It is further stated that possession was
delivered by MDDA in the years 2003-04 to different
individuals.
71. Thus, from Paragraph 7A of the written
statement, it is evident that MDDA has taken
inconsistent stands. While it admits that flats have been
allotted to different individuals, it does not clarify the
nature of such allotment or the legal status of the
individuals to whom the flats were allotted. Since it is the
32
2026:UHC:2831
pleaded case of the defendant-appellant that MDDA is in
possession, and the sole witness of the defendant-
appellant, Mr. V.D. Nautiyal, has stated that MDDA’s
possession is reflected in the Khatauni, the inescapable
conclusion, based on the pleadings as well as the
evidence led on behalf of the defendant, is that the
buildings were constructed by MDDA over the property in
question and that MDDA was in possession of the
disputed property, though the flats constructed thereon
were allotted to several individuals.
72. In this background, it becomes necessary to
examine the effect of the rejection of the amendment
applications filed by the defendant-appellant at both the
trial stage and the first appellate stage. It is also
necessary to examine the effect of the rejection of the
amendment application filed at the stage of the first
appeal.
73. A perusal of the amendment application filed
by the defendant-appellant before the Court of the
Additional District Judge/I FTC, Dehradun, reveals that,
inter alia, an amendment was sought to introduce the
plea that the suit was bad for non-joinder of necessary
parties. This application was rejected by the first
appellate court vide order dated 28th July, 2008.
74. On a query made to the learned counsel for the
defendant-appellant, he admitted that the rejection order
dated 28th July, 2008 was not challenged further by the
defendant-appellant and has thus attained finality.
Accordingly, there was no plea in the written statement
on the part of the defendant-appellant regarding the non-
impleadment of the occupants of the flats. Moreover, the
33
2026:UHC:2831
statement of the defendant’s witness, Mr. V.D. Nautiyal,
in his affidavit of examination-in-chief regarding MDDA’s
possession also goes against the defendant-appellant.
75. Therefore, Mr. Piyush Garg, learned counsel
for the respondents, is justified in contending that
although certain persons may be in possession of the
flats constructed over the suit property, the defendant
remains the principal party, and there was no necessity
to implead the said occupants.
76. In fact, the defendant-appellant has taken
mutually contradictory pleas. On the one hand, it has
stated that MDDA is in possession, while on the other
hand, it has claimed that possession had already been
handed over to the allottees in the years 2003-04.
77. The submission advanced on behalf of the
plaintiff-respondent that the term “allotted” itself
indicates that the jural relationship continues with the
defendant is well-founded. Therefore, the defendant
cannot evade its liability on that ground. While referring
to the judgment in the case of H. Anjanappa and others
(supra), as cited by the learned counsel for the
plaintiffs/respondents, he has emphasized paragraph 58,
sub-paragraphs (ii) and (vi), which are extracted
hereinbelow, and contended that in view of the said legal
position, the allottees of MDDA would still be bound by
the decree, and the suit would not fail on account of their
non-impleadment, if any.
“58. From a conspectus of all the aforesaid judgments,
touching upon the present aspect, broadly, the following
would emerge:
i……….
34
2026:UHC:2831
ii. Secondly, a transferee pendente lite is not entitled to
come on record as a matter of right.
iii………
iv……..
v………
vi. Sixthly, merely because such transferee pendente lite
does not come on record, the concept of him (transferee
pendente lite) not being bound by the judgment does not
arise and consequently he would be bound by the result
of the litigation, though he remains unrepresented;
vii………
viii……..”
78. Continuing his submissions, Mr. Piyush Garg,
learned counsel for the respondent, has also drawn the
attention of the Court to the judgment of the Hon’ble
Supreme Court in Alka Shrirang Chavan and another
(supra), referring to paragraph 41.2 of the said judgment,
he has categorically submitted that ‘where one of the
parties to the suit transfers the suit property or a portion
thereof to a third party, such third party latter would be
bound by the result of the proceedings, even if he had no
notice of the suit or proceedings’.
79. Also, the background of the case needs to be
considered in light of the above position of law, namely
that the MDDA was conscious of the fact that it was not
the owner of the 0.4000 hectare of land and, despite the
legal opinion sought from the DGC (Revenue), it
proceeded to carry out construction of buildings on the
land belonging to the plaintiffs/respondents, thereby
undertaking such construction at its own peril.
35
2026:UHC:2831
80. In view of the aforesaid substantial question of
law, question no. ii deserves to be answered to the effect
that possession of the property could have been directed
to be delivered to the plaintiffs/respondents,
notwithstanding the fact that certain other individuals
had been allotted the buildings constructed thereon and
were not impleaded as parties to the litigation.
Accordingly, substantial question of law no. 2 is
answered in favour of the plaintiffs/respondents.
81. Coming to substantial question of law no. vi,
learned counsel for the defendant/appellant has
submitted that since a relief of declaration was also
sought in the plaint, the limitation would be governed by
Article 58 of the Limitation Act, which prescribes a period
of three years from the date when the right to sue first
accrues. It is contended that the findings recorded by the
trial court as well as the first appellate court on the issue
of limitation are erroneous, and therefore, the suit
deserves to be dismissed as being time-barred.
82. Per contra, learned counsel for the
plaintiffs/respondents has contended that the suit was
one not only for declaration but also for possession, and
therefore, limitation would not be governed by Article 58
but by Article 65 of the Limitation Act, which provides a
period of twelve years. Hence, the suit was filed within
limitation. It is further submitted that issue no. 4 relating
to limitation was specifically framed by the trial court
and was duly considered. The trial court, in fact, relied
upon the judgment of the Hon’ble Supreme Court in the
case of State of Maharashtra vs. Pravin Jethalal Kamdar
(dead) by LRs., reported in AIR 2000 SC 1099, and held
36
2026:UHC:2831
that in view of Article 65 of the Limitation Act, 1963, the
suit was within time.
83. The issue of limitation was also examined by
the first appellate court, which concurred with the
findings of the trial court and held that since the plaintiff
had sought relief of possession in addition to declaration,
Article 65 would apply and the limitation period would be
twelve years. It was further held that the conclusion
arrived at by the trial court on this issue was in
accordance with law.
84. A perusal of paragraph 6 of the aforesaid
judgment (AIR 2000 SC 1099) clearly indicates that the
mere fact that a declaration has also been sought is of no
consequence where possession is in issue. Para 6 is
extracted hereunder:-
“6. As already noticed, in Bhim Singhji’s case, (AIR
1981 SC 234) (supra) Section 27(1) insofar as it imposes
a restriction on transfer of any urban or urbanisable
land with a building or a portion of such building, which
is within the ceiling area, has been held to be invalid.
Thus, it has not been and cannot be disputed that the
order dated 26th May, 1976, was without jurisdiction
and nullity. Consequently, sale deed executed pursuant
to the said order would also be a nullity. It was not
necessary to seek a declaration about the invalidity of
the said order and the sale deed. The fact of plaintiff
having sought such a declaration is of no
consequence. When possession has been taken by
the appellants pursuant to void documents, Article
65 of the Limitation Act will apply and the
limitation to file the suit would be 12 years. When
these documents are null and void, ignoring them a suit
for possession simpliciter could be filed and in the
course of the suit it could be contended that these37
2026:UHC:2831documents are a nullity. In Ajudh Raj v. Moti S/o
Mussadi, (1991) 3 SCC 136 : (1991 AIR SCW 1576 : AIR
1991 SC 1600) this Court said that if the order has been
passed without jurisdiction, the same can be ignored as
nullity, that is, non-existent in the eyes of the law and it
is not necessary to set it aside; and such a suit will be
governed by Article 65 of the Limitation Act. The
contention that the suit was time-barred has no merit.
The suit has been rightly held to have been filed within
the period prescribed by the Limitation Act.
85. Learned counsel for the plaintiffs-respondents
has also drawn the attention of this Court to the
judgment of the Hon’ble Supreme Court in Sopanrao and
Another vs. Syed Mehmood and Others, reported in
(2019) 7 SCC 76, particularly paragraph 9 thereof, to
contend that the case of the plaintiffs-respondents is
squarely covered by the said judgment, which is
extracted herein below:-
“9. It was next contended by the learned counsel that
the suit was not filed within limitation. This objection is
totally untenable. Admittedly, the possession of the land
was handed over to the Trust only in the year 1978. The
suit was filed in the year 1987. The appellants contend
that the limitation for the suit is three years as the suit
is one for declaration. We are of the view that this
contention has to be rejected. We have culled out the
main prayers made in the suit hereinabove which
clearly indicate that it is a suit not only for declaration
but the plaintiffs also prayed for possession of the suit
land. The limitation for filing a suit for possession on the
basis of title is 12 years and, therefore, the suit is
within limitation. Merely because one of the reliefs
sought is of declaration that will not mean that the outer
limitation of 12 years is lost. Reliance placed by the
learned counsel for the appellants on the judgment of
this Court in L.C. Hanumanthappa v. H.B. Shivakumar38
2026:UHC:2831[L.C. Hanumanthappa v. H.B. Shivakumar, (2016) 1
SCC 332 : (2016) 1 SCC (Civ) 310] is wholly misplaced.
That judgment has no applicability since that case was
admittedly only a suit for declaration and not a suit for
both declaration and possession. In a suit filed for
possession based on title the plaintiff is bound to prove
his title and pray for a declaration that he is the owner
of the suit land because his suit on the basis of title
cannot succeed unless he is held to have some title over
the land. However, the main relief is of possession and,
therefore, the suit will be governed by Article 65 of the
Limitation Act, 1963. This Article deals with a suit for
possession of immovable property or any interest
therein based on title and the limitation is 12 years from
the date when possession of the land becomes adverse
to the plaintiff. In the instant case, even if the case of
the defendants is taken at the highest, the possession
of the defendants became adverse to the plaintiffs only
on 19-8-1978 when possession was handed over to the
defendants. Therefore, there is no merit in this
contention of the appellants.”
86. In view of the settled legal position, it is evident
that the limitation applicable to the present case is twelve
years, and both the trial court as well as the first
appellate court has committed no error in law in holding
that the suit was within limitation.
87. In view of the settled legal position, this Court
comes to the conclusion that substantial question of law
no. vi is to be answered to the effect that the suit of the
respondents/plaintiffs is not barred under Article 58 of
the Limitation Act, 1963. Since the relief sought was for
possession in addition to declaration, the applicable
limitation period would be twelve years under Article 65
of the Act. Accordingly, the suit was filed within time,
39
2026:UHC:2831
and the trial court as well as the first appellate court has
rightly arrived at this conclusion.
88. Learned counsel for the defendant-appellant
does not dispute the position regarding ownership of the
property in question and fairly concedes that the
defendant-appellant is not the owner thereof. However,
he contends that the plaintiffs have merely placed on
record the Khatauni. In this regard, it is noteworthy that
the same Khatauni was also brought on record by the
defendant’s witness along with his affidavit of
examination-in-chief.
89. In response, Mr. Piyush Garg, learned counsel
for the plaintiffs/respondents, submits that the names of
the plaintiffs-respondents are recorded in the Khatauni
under Verg-1 ka, which denotes ownership with
transferable rights. Since the Khatauni stands admitted
by the defendant’s own witness, and both the trial court
as well as the first appellate court have concurrently held
the plaintiffs-respondents to be the owners of the
property in question, there exists a concurrent finding of
fact regarding ownership.
90. It has further come on record that a part of the
same khasra number was acquired by DEAL, and even
the legal opinion obtained from the District Revenue
Authorities, Dehradun, recognizes the
plaintiffs/respondents as owners. Therefore, it can safely
be inferred that the respondents/plaintiffs are the
rightful owners of the property in question.
91. Since instant second appeal is concluded by
finding of facts and since substantial questions of law
40
2026:UHC:2831
nos. (ii) and (vi), as framed in the memo of appeal, have
been answered in favour of the plaintiffs/respondents,
the present second appeal fails and is liable to be
dismissed. Accordingly, the second appeal is hereby
dismissed. The judgments and decrees passed by the
trial court as well as the first appellate court are hereby
affirmed and upheld.
92. The original record be transmitted back to the
court concerned.
(Siddhartha Sah, J.)
17.04.2026
BS
BALWAN
Digitally signed by BALWANT SINGH
DN: c=IN, o=HIGH COURT OF UTTARAKHAND,
ou=HIGH COURT OF UTTARAKHAND,
2.5.4.20=fbbd191c8bdb8b16e8ca7937deaf72a1
7c02fe2eacbf28cdf4ba7ce8640c5820,
T SINGH
postalCode=263001, st=UTTARAKHAND,
serialNumber=04E141DF4614F9A4D5F48346EB
553DE5185F418755DC00A7A13C14A680C3FA9
0, cn=BALWANT SINGH
Date: 2026.04.20 18:57:18 +05’30’
41