IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Restoration Application No. 877/2011 Delay Condonation Application No.12379/2011 In Writ Petition No. 5524 (M/S) of 2001 Chanchal Singh and others …Petitioners Versus Addl. Commissioner Kumaon Mandal and others …Respondents Hon’ble Tarun Agarwala, J. Heard Sri Rajesh Sharma, the learned counsel for the petitioners, Sri Sudhir Kumar, the learned Brief Holder for the State/respondent nos. 1, 2 & 13 and Ms. Jyoti Joshi, the learned counsel holding the brief of Sri B.D. Upadhyaya, the learned counsel for respondent nos. 3 & 4. The Court finds that sufficient cause has been shown to condone the delay in filing the restoration application. Delay Condonation Application is allowed. The delay in filing the restoration application is condoned. Heard the learned counsel for the parties on restoration application. Cause shown is sufficient. The restoration application is allowed. The order dated 19.09.2011 is recalled. The writ petition is restored to its original number. The mother of respondent nos. 3 and 4 filed a suit for declaration under Section 229-B of the U.P.Z.A. & L.R. Act praying that the names of the defendants/petitioners recorded in the revenue records be deleted and the name of the plaintiff be recorded. The plaintiff alleged that the defendants forcibly tried to take the possession of the land, in which they failed and, proceedings under Section 145 Cr.P.C. was initiated against them. In the relief clause, the plaintiff further prayed that in the event the plaintiff is not found to be in possession, then the defendants be evicted and possession be given to the plaintiff. The defendants resisted the suit and filed the written statement. Evidence has been led. After 15 years, during the 2 pendency of the suit, the plaintiff filed an application under Order 6 Rule 17 C.P.C. alleging that forceful possession was taken by the defendants in the year 1985 and consequently, a paragraph to this effect be added after paragraph 5 of the plaint. The defendants opposed this application contending that their rights have matured and a suit for declaration cannot be converted into a suit for eviction. It was also urged that the amendment sought had become barred by limitation. The trial court rejected the application, against which, the plaintiff filed a revision before the Additional Commissioner, which was allowed and the order of the trial court was set aside and the amendment application was allowed on payment of cost of Rs.700/-. The petitioners, being aggrieved by the said order, have filed the present writ petition. If the defendants do not have any title over the land in question and have wrongfully taken possession, a suit for eviction can be filed under Section 209 of the U.P.Z.A. & L.R. Act. If the suit is not filed within the stipulated period of limitation, the consequences are described in Section 210 of the Act. For facility, the provision of Section 209 and Section 210 of the U.P.Z.A. & L.R. Act is extracted hereunder: “209. Ejectment of persons occupying land without title.-[(1)] A person taking or retaining possession of land otherwise than in accordance with the provisions of the law for the time being in force; and- (a) where the land forms part of the holding of a bhumidhar, or asami without the consent of such bhumidhar, or asami; (b) where the land does not form part of the holding of a bhumidhar or asami without consent of the Gaon Sabha, shall be liable to ejectment on the suit in cases referred to in Clause (a) above of the bhumidhar or asami concerned and in cases referred to in Clause (b) above of the Gaon Sabha and shall also be liable to pay damages. (2) To every suit relating to a land referred to in Clause (a) of sub-section (1) the State Government shall be impleaded as a necessary party. “210. Consequences of failure to file suit under Section 209.- If a suit for eviction from any land under 3 Section 209 is not instituted by a bhumidhar or asami, or a decree for eviction obtained in any such suit is not executed within the period of limitation provided for institution of such suit or the execution of such decree, as the case may be, the person taking or retaining possession shall- (a) where the land forms part of the holding of a bhumidhar with transferable rights, become a bhumidhar with transferable rights of such land and the right, title and interest of an asami, if any, in such land shall be extinguished; (b) where the land forms part of the holding of a bhumidhar with non-transferable rights, become a bhumidhar with non-transferable rights and the right, title and interest of an asami, if any, in such land shall be extinguished; (c) where the land forms part of the holding of an asami on behalf of the Gaon Sabha, become an asami of the holding from year to year. Provided that the consequences mentioned in clauses (a) to (c) shall not ensure in respect of any land held by a bhumidhar or asami belonging to a Scheduled Tribe.” The limitation for filing a suit under Section 209 is 12 years as provided in Entry 30 of Appendix 3 of the U.P.Z.A. & L.R. Rules. The paragraph sought to be incorporated indicates in clear terms that the defendants took possession of the property in question in the year 1985. The period of 12 years for filing a suit expired in 1997. This application for amendment seeking to bring this fact on record was filed in the year 2000. In the opinion of the Court, such amendment cannot be allowed since certain rights of the defendants have matured. What the plaintiff could now not do by filing a suit under Section 209, the same cannot be allowed to be incorporated in the plaint by means of an amendment. The amendment sought was clearly barred by limitation. The learned counsel for the respondents placed reliance upon a decision of the Supreme Court in Ragu Thilak D. John vs. S. Rayappan and others, (2001) 2 SCC 472, wherein the Supreme Court held: “6. If the aforesaid test is applied in the instant case, the amendment sought could not be declined. The dominant purpose of allowing the amendment is to minimize the litigation. The plea that the relief sought by way of amendment was barred by time is arguable in the 4 circumstances of the case, as is evident from the perusal of averments made in paras 8(a) to 8(f) of the plaint which were sought to be incorporated by way of amendment. We feel that in the circumstances of the case the plea of limitation being disputed could be made a subject-matter of the issue after allowing the amendment prayed for.” From the aforesaid, the learned counsel for the respondents submitted that the plea of limitation is a matter of argument, which could be raised in the suit itself. The decision cited by the learned counsel for the respondents is distinguishable inasmuch as in the said case the question of limitation was disputed, whereas, in the present case, from a conjoint reading of Section 209, 210 of the U.P.Z.A. & L.R. Act read with the U.P.Z.A. & L.R. Rules, it is clear that the plaintiff could not file a suit under Section 209 of the Act on the given allegation. As a result of the aforesaid, such amendment could not be incorporated in the present suit after the period of limitation. In the light of the aforesaid, the impugned order cannot be sustained and is quashed. The writ petition is allowed. (Tarun Agarwala, J.) 29-11-2011 Salim/