JUDGMENT Hon’ble Prafulla C. Pant, J. 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. 3. 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 3in 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. 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. 4. 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. 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. 5. The defendant no. 2 (Defence Estate Officer, Meerut Circle) also contested the suit, and filed his separate written statement. Said party also in substance supported the case of defendant no. 1. 6. 5. The defendant no. 2 (Defence Estate Officer, Meerut Circle) also contested the suit, and filed his separate written statement. Said party also in substance supported the case of defendant no. 1. 6. On the basis of the pleadings of the parties following issues were framed by the trial court: (i) Whether the plaintiff is owner of the plot/property known as Dahlia Bank situated at Survey no. 157? (ii) Whether the building in question is in dilapidated condition, and is the plan for re construction submitted by the plaintiff stands sanctioned (deemed to have been sanctioned) under sub section (6) of section 238 of Cantonment Act, 2006? (iii) Whether the defendant no. 1 has any authority to reject the plan/map submitted by the plaintiff for re construction, after the plaintiff instituted the present suit on the basis of deemed sanction? (iv) Whether the property in suit is covered under notification issued under Works of Defence Act, 1903, and is the re construction work stand prohibited, and whether the defendant had any right to interfere in said re construction work? (v) Whether order dated 06.07.211 passed by the Cantonment Board Mussoorie, and one dated 08.12.2011 passed by Defence Estate Officer, Meerut Circle, are null and void? (vi) Whether the suit is under valid and court fee paid is insufficient? (vii) To what relief, if any, the plaintiff is entitled? 7. The trial court after recording evidence, and hearing the parties found that the plaintiff is owner of the building situated in survey no. 157, and it further found that the building was in a dilapidated condition. The trial court further found that the order dated 06.07.2011 passed by the Cantonment Board Landour, and one dated 08.12.2011 passed by Defence Estate Officer, Meerut Circle, are valid. Aggrieved by said judgment and decree dated 26.05.2012 passed by Civil Judge (Sr. Div.) Dehradun, in Suit No. 249 of 2011, plaintiff filed Civil Appeal No. 57 of 2011 before District Judge, Dehradun and said authority after hearing the parties allowed the appeal, and set aside the judgment and decree passed by the trial court, and granted perpetual injunction against the defendants. Hence this second appeal. 8. Div.) Dehradun, in Suit No. 249 of 2011, plaintiff filed Civil Appeal No. 57 of 2011 before District Judge, Dehradun and said authority after hearing the parties allowed the appeal, and set aside the judgment and decree passed by the trial court, and granted perpetual injunction against the defendants. Hence this second appeal. 8. This second appeal was admitted by this Court on following two substantial questions of law: (i) Whether the suit of the plaintiff was not maintainable in view of section 250 of Cantonments Act, 2006, as the plaintiff had not exhausted its statutory remedy under the Cantonments Act, 2006? (ii) Whether the first appellate court has erred in law in not appreciating the mandatory provision of section 3 and 7 of Works of Defence Act, 1903, which imposes restriction of any kind of construction/renovation in any building within a particular area of defence establishment? Answer to substantial question of law no. 1 9. Section 250 of Cantonments Act, 2006 provides that no court shall entertain any suit, or proceedings in respect of any order or notice (passed/issued under Act) unless an appeal under section 340 is preferred and the same is disposed of by the appellate authority under sub section (3) of section 343 of the Act. 10. Initially suit was filed simply for injunction on 30.05.2012, against the defendants and no order or notice was issued by the defendants by then, as such at that stage, the suit was maintainable. During the pendency of the suit though the plan submitted by the plaintiff was rejected by defendant no.1, and though said fact has been incorporated in the plaint by amending the same, but no relief has been sought in respect of said order, as such the suit on the date, a plaint was presented, cannot be said to be barred by the provisions of section 250 of Cantonments Act, 2006. 11. Substantial question of law no. 1 stands answered accordingly. Answer to substantial question of law no. 2 12. Mr. B.S. Adhikari, learned counsel for the appellant drew attention of this court to SRO No. 106 New Delhi, dated 30.08.2005, issued under Works of Defence Act, 1903 (7 of 1903) which is published in the Gazette of India dated 17.09.2005 (part (II) section 4). 1 stands answered accordingly. Answer to substantial question of law no. 2 12. Mr. B.S. Adhikari, learned counsel for the appellant drew attention of this court to SRO No. 106 New Delhi, dated 30.08.2005, issued under Works of Defence Act, 1903 (7 of 1903) which is published in the Gazette of India dated 17.09.2005 (part (II) section 4). It is argued on behalf of the appellant that no construction can be allowed within the fifty meters of the crest of outer parapet of Institute of Technology Management in Landour, Cantonment, Mussoorie. It is further submitted in this connection that said Institute is a part of Defence and Research Development Organization, and its secrecy and security cannot be compromised. 13. Section 3 of Works of Defence Act, 1903, provides that whenever it appears to the Central Government that it is necessary to impose restrictions upon the use and enjoyment of land in vicinity of any Work of Defence or any site intended to be used or to be cleared for any such work, in order that such land may be kept free from building and other obstructions, a declaration shall be made to that effect under the signature of some officer duly authorized to certify its order. Perusal of copy of notification dated 30.08.2005 published in the Gazette of India shows that it is worded as under: S.R.O. 106 In exercise of the powers conferred by Section 3 of the Works of Defence Act, 1903 ( 7 of 1903), the Central Government hereby declares that it is necessary to impose the restrictions specified in clause (c) of Section 7 of the said Act, upon the use and enjoyment of the land described in the Schedule annexed herewith, being land lying in the vicinity of Institute of Technology Management (ITM), Landour Cantonment, Mussoorie, in the State of Uttaranchal 248179 in order that the said land may be kept free from buildings and other obstructions. ………………………………………………………… Schedule All the land comprised in the area lying within a distance of approximately fifty meters from the crest of the outer parapet of the Institute of Technology Management (ITM) Landour Cantonment, Mussoorie, in the State of Uttaranchal 248 179. 14. Shri Siddhartha Singh, learned counsel for the plaintiff/ respondent no. 1 contended that the word ‘land’ used in Works of Defence Act, 1903, does not include any existing building. 14. Shri Siddhartha Singh, learned counsel for the plaintiff/ respondent no. 1 contended that the word ‘land’ used in Works of Defence Act, 1903, does not include any existing building. However, perusal of definition of expression ‘land’ given in clause (a) of section 2 shows that the expression ‘land’ includes benefits to arise out of the land, and things attached to the earth or permanently fastened to anything attached to the earth. Said definition clearly indicates that the building which is a thing attached to the earth is included in the definition of the land covered under the Works of Defence Act, 1903. Learned counsel for the plaintiff/respondent no. 1 failed to show to this Court that the disputed construction is fifty meters away from the crest of outer parapet of the ITM. Nor any such plea is made in the plaint. 15. What is argued on behalf of the plaintiff/ respondent no. 1 is that that correspondence made by the Cantonment Board and Defence Estate Officer suggests that a confusion has been created in respect of the fact whether the disputed construction is being raised in plot no. 157 or 157 (1). In this connection, it is further submitted that plaintiff’s building is being re constructed over plot no. 157 and it has nothing to do with plot no. 157/1. In the opinion of this Court it hardly matters whether the construction is on plot no. 157 or plot no. 157/1 for the purposes of this case. What matters in the present case is that if the construction is within the fifty meters of the crest of outer parapet of ITM (a unit of DRDO), the same cannot be allowed to be raised. Section 7 of Works of Defence Act, 1903, requires even removal of existing buildings from such area. No deeming sanction under Sub section (6) of Section 238 of the Act helps the plaintiff in the present case, as Works of Defence Act, 1903, is independent to Cantonments Act, 2006. 16. On behalf of respondent no. 1 (plaintiff) reference was made to M/s Live Oak Resort Pvt. Ltd. vs. Panchgani Hills AIR 2001 SC 3478 , Hero Vinoth vs. Seshammal 2006 (2) ARC 535 and Vishwanath Goyal vs Cantonment Board AIR 1987 All. 16. On behalf of respondent no. 1 (plaintiff) reference was made to M/s Live Oak Resort Pvt. Ltd. vs. Panchgani Hills AIR 2001 SC 3478 , Hero Vinoth vs. Seshammal 2006 (2) ARC 535 and Vishwanath Goyal vs Cantonment Board AIR 1987 All. 4 , and it is contended that since deemed sanction exists in favour of the plaintiff under section 238 (6) Cantonments Act 2006, as such the defendants including the appellant has no right to stop the re construction work. I have gone through the aforesaid case laws. In the above mentioned referred cases there was no issue relating to the construction over the area notified under section 3 of Works of Defence Act, 1903, as such the same are of little help to the plaintiff in the present case. 17. Substantial question of law no. 2 stands answered accordingly in favour of the appellant (defendant no. 1) 18. For the reasons as discussed above, the lower appellate court has erred in law in setting aside the decree passed by the trial court, and decreeing the suit. 19. Accordingly, the second appeal is allowed. Impugned judgment and decreed dated 21.09.2012, passed by the District Judge, Dehradun, in Civil Appeal No. 57 of 2012, is set aside. The suit No. 249 of 2011, filed by the plaintiff before Civil Judge (Sr. Div.), Dehradun, stands dismissed with the observation that if the plaintiff submits fresh plan leaving fifty meters of distance from the crest of outer parapet of ITM, the same may be considered by the appellant and respondent no. 2 in accordance with law. However, no orders as to costs.