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2026 Supreme(Online)(UK) 1065

HIGH COURT OF UTTARAKHAND
Siddhartha Sah, J
MUSSOORIE DEHRADUN DEVELOPMENT AUTHORITY THROUGH ITS SECRETARY – Appellant
Versus
LT. GENERAL R K JASBIR (RETIRED) – Respondent
SA 49 / 2011

Advocates:
For the Appellants/Petitioners: Rahul Consul
For the Respondents: Piyush Garg

In a suit for declaration of title and recovery of possession based on title, limitation is governed by Article 65 of the Limitation Act (12 years), not Article 58. Transferees pendente lite are bound by the decree and need not be impleaded as necessary parties.

Headnote:(A) Limitation Act, 1963 - Articles 58 and 65 - U.P. Zamindari Abolition and Land Reforms Act, 1950 - Sections 209 and 229 - Civil Procedure Code, 1908 - Order I Rule 9, Order XXVI Rule 9 - Suit for declaration of title and recovery of possession - Limitation for suit based on title is 12 years under Article 65 even if declaration is also sought - Mere prayer for declaration does not attract Article 58 (3 years) - Transferee pendente lite bound by decree even if not impleaded as party - Non-joinder of necessary parties - Rejection of amendment seeking to raise plea of non-joinder attains finality if not challenged - Defendant's inconsistent pleas regarding possession cannot defeat plaintiffs' right - Revenue entries showing defendant in possession are admissible evidence.

(B) Principle of res judicata - Decision rendered by court lacking jurisdiction does not operate as res judicata - Dismissal of earlier revenue suit on technical grounds not a bar.

Facts of the case:
Plaintiffs were recorded Bhumidhars/owners of Khasra No. 430 (new No. 908), village Adhoiwala. A part of the land was acquired by another authority, but 0.4000 hectare remained unacquired. The defendant authority encroached upon that portion in 1996 and constructed flats. Plaintiffs became aware in 1998 and pursued remedies. A joint survey report confirmed plaintiffs' ownership and defendant's possession. Defendant's legal opinion also recognized plaintiffs' title. Plaintiffs filed suit for declaration of ownership and recovery of possession with mesne profits. The trial court decreed the suit, and the first appellate court affirmed. The second appeal was admitted on two substantial questions of law.

Findings of Court:
The High Court held that the suit was not barred by limitation. Since the principal relief was possession based on title, Article 65 of the Limitation Act applied, giving 12 years from when possession became adverse. The suit filed in 2004 was within time as plaintiffs came to know in 1998. Regarding non-joinder of allottees, the defendant's own witness stated that the authority was in possession. The defendant's amendment application to raise non-joinder was rejected and not challenged. Moreover, transferees pendente lite are bound by the decree even if not impleaded. Therefore, the decree for possession could be executed against the defendant authority.

Issues: (i) Whether possession of the property could be ordered to be delivered to the plaintiffs when possession had already been delivered to various individuals who were not made parties? (ii) Whether the suit was barred under Article 58 of the Limitation Act, 1963 since the relief sought was also a declaration of ownership?

Ratio Decidendi: The court reasoned that for a suit seeking possession based on title, the limitation period is 12 years under Article 65, and the inclusion of a declaration does not convert it to a suit solely for declaration under Article 58. The court further held that the defendant's inconsistent pleas - claiming possession on one hand and denying it on the other - could not defeat the plaintiffs' claim. The non-joinder of allottees was not fatal because they were transferees pendente lite, and the defendant's own witness admitted that the authority was in possession. The rejection of the amendment to plead non-joinder had become final. Result : Second appeal dismissed. Judgments and decrees of the trial court and first appellate court affirmed.

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 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 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

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2026 Supreme(Online)(UK) 1065

HIGH COURT OF UTTARAKHANDSiddhartha Sah, JMUSSOORIE DEHRADUN DEVELOPMENT AUTHORITY THROUGH ITS SECRETARY – AppellantVersusLT. GENERAL R K JASBIR (RETIRED) – RespondentSA 49 / 2011

In a suit for declaration of title and recovery of possession based on title, limitation is governed by Article 65 of the Limitation Act (12 years), not Article 58. Transferees pendente lite are bound by the decree and need not be impleaded as necessary parties.

Cases Referred (2)

HIGH COURT OF UTTARAKHAND
Siddhartha Sah, J
MUSSOORIE DEHRADUN DEVELOPMENT AUTHORITY THROUGH ITS SECRETARY – Appellant
Versus
LT. GENERAL R K JASBIR (RETIRED) – Respondent
SA 49 / 2011