Prafulla C. Pant, J. -
(1.) THIS Second Appeal, preferred under section 100 of Code of Civil Procedure, 1908, is directed against the judgment and decree dated 21.09.2012, passed by District Judge, Dehradun, in Civil Appeal No. 57 of 2012, whereby said court has allowed the appeal, and set aside the judgment and decree dated 26.05.2012, passed by the trial court [Civil Judge (Sr. Div.) Dehradun].
(2.) HEARD learned counsel for the parties, and perused the lower court record. Brief facts of the case are that plaintiff Sanjay Narang instituted as Suit No. 249 of 2011 for perpetual injunction restraining the defendants from creating any hindrance or obstruction in carrying out renovation/re -erection of the building over land in suit detailed in Schedule of the plaint. It is pleaded in the plaint by the plaintiff that originally the property known as Dahlia Bank, situated over survey plot No. 157, measuring 2.922 acres, was in the name of one R.L. Duggan, as occupancy rights given to him by the Government of India vide Grant No. 167 of 1842. The grant was under the management of Defence Estate Officer, Meerut Circle, and recorded as class B -3 in the General Land Register (for short GLR). 1.25 acres of said land of plot No. 157 was transferred to one Mrs. S. Dutta vide sale deed dated 26.10.1923, and said plot was renumbered as 157/1. Rest of the area measuring 1.25 acres remained under the management of Defence Estate Officer, Meerut Circle. After death of Mr. Duggan on 02.08.1954, his widow Mrs. C.J. Duggan inherited the occupancy rights. She executed a Will dated 20.11.1958 in favour of Mr. Basil Edward Hawkins (grandson of Mrs. C.J. Duggan). After death of Mrs. C.J. Duggan on 07.09.1962, a Probate case was filed in the court of District Judge, Dehradun, numbered as Miscellaneous Case No. 87 of 1962, and Mr. Basil Edward Hawkins became owner of Dahlia Bank Estate. Thereafter a lease was executed by Mr. Hawkins in the favour of "M/s. Olof Doobland" of the land of plot No. 157 vide registered deed dated 31.01.1961 for a period of ten years, and the same stood expired on 31.01.1978. One B.P. Singh, thereafter purchased the property from Mr. Hawkins vide registered deed dated 29.10.1987, and his name was recorded in Cantonment record. Said Shri B.P. Singh vide sale deed dated 23.01.2009 transferred his rights to plaintiff Sanjay Narang over the property in suit (Survey No. 157) who applied for mutation to the authorities concerned. While the mutation is still awaited, plaintiff applied for renovation/re -erection of the 150 years old building known as Dahlia Bank and submitted the plan on 21.10.2009 to defendant No. 1 Cantonment Board, Landour Mussoorie (present appellant). Plaintiff's case is that he sent reminders on 19.01.2011 and 14.02.2011 to the Cantonment Board for approval of the plan submitted for re -erection of the building. However, no sanction was received by the plaintiff as such taking shelter of Sub -section (6) of section 238 of Cantonments Act, 2006, the plaintiff assuming deemed sanction of the plan in his favour started construction/re -erection work on which the defendant objected and stopped the same. Hence, the plaintiff filed suit for perpetual injunction directing the defendants not to interfere in the construction of the building. During the pendency of suit it appears that vide order dated 06.07.2011, the plan submitted by the plaintiff was rejected, and by way of amendment said order was also challenged by the plaintiff in its para 26 (b). It is also pleaded by way of amendment that orders by which plan submitted by the plaintiff was rejected and Defence Estate Officer declined the No Objection Certificate are void ab initio.
(3.) THE defendant No. 1 contested the suit and filed written statement before the trial court. The defendant No. 1 (present appellant) Cantonment Board, Landour Mussoorie, did not deny the grant made in favour of R.L. Duggan in the year 1923, and inheritance of his rights by his widow and thereafter of her grandson. It is also not disputed that Mr. Hawkins (grandson of Mrs. Duggan) transferred his rights to Mr. B.P. Singh in respect of Dahlia Bank Estate. Rest of the contents in the plaint are not admitted by the answering defendant, and it is pleaded that the property in question is within the restricted area notified under section 3 of Works of Defence Act, 1903, and no construction was permissible within fifty meters from the crest of outer parapet of Institute of Technology Management (for short ITM) which is part of Defence Research and Development Organization (DRDO). It is further pleaded by the defendant No. 1 that since ITM did not give No Objection Certificate, as such the plan submitted by the defendant was duly rejected. It is also pleaded by the Cantonment Board, Landour Mussoorie, that it did not receive No Objection Certificate from Defence Estate Officer, Meerut Circle, as such the plaintiff cannot assume deemed sanction under Sub -section (6) of section 238 of Cantonments Act, 2006. In the additional pleas it is also stated that plaintiff is not recorded occupancy right holder in the General Land Register (GLR), as such he is not entitled to the relief claimed by him. By way of amendment it is also pleaded in para 21 (a) (b) (c) that during the pendency of suit against the rejection order dated 06.07.2011, in respect of plan submitted by the plaintiff, he (plaintiff) filed an appeal before General Officer Commanding, Central Command, and said appellate authority has also dismissed the appeal vide order dated 15.02.2012. It is also pleaded in the written statement of defendant No. 1 by way of amendment that under SRO No. 106 dated 30.08.2005 issued by the Government of India and the land adjoining ITM was notified (before the plan was submitted) under section 3 of Works Defence Act, 1903.;