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Sec.319(3) of M.P.Municipalities Act – Exemption from issuing a notice in advance notice prior to filing to the Nagara palika – Suit for Declaration for title and injunction – Trial court and High court wrongly held that the plaintiff is entitled for exemption – Apex court held that the suit was filed for declaration of title coupled with permanent injunction. Respondent No.1 having claimed title, the suit cannot be termed to be suit for perpetual injunction alone. Along with the trial court and the appellate court, the High Court also failed to appreciate the aforesaid fact and also overlooked the valuable interest and right of public at large, to use the suit land which is a part of public street. Further, in absence of challenge to the notice of eviction issued by the appellant, it was not open to the trial court to decide the title merely because permanent injunction coupled with declaration of title was also sought for.= NAGAR PALIKA PARISHAD, MIHONA AND ANR. … APPELLANTS VERSUS RAMNATH AND ANR. … RESPONDENTS= 2014 (April.Part) judis.nic.in/supremecourt/filename=41405

  Sec.319(3) of M.P.Municipalities Act – Exemption from issuing a notice in advance notice prior to filing to the Nagara palika – Suit for Declaration for title and injunction – Trial court and High court wrongly held that the plaintiff is entitled for exemption – Apex court held that the  suit  was  filed  for  declaration  of  title  coupled  with  permanent injunction.  Respondent No.1  having  claimed  title,  the  suit  cannot  be termed to be suit for perpetual injunction alone.   Along with the trial court and the appellate court, the  High  Court also failed to  appreciate  the  aforesaid  fact  and  also  overlooked  the valuable interest and right of public at large, to use the suit  land  which is a part of public street.  Further, in absence of challenge to the  notice of eviction issued by the appellant, it was not open to the trial  court  to decide  the  title  merely  because  permanent   injunction   coupled   with declaration of title was also sought for.=

 

 The case of the appellant–Nagar  Palika  is  that  on  finding  that

respondent No.1 – plaintiff has made encroachment on a public road,  namely,

Khitoli Road, a notice under Section 187 of  the  M.P.  Municipalities  Act,

1961 (hereinafter referred o as “Act, 1961”) dated 26th November,  1982  was

issued  to  respondent  No.1–plaintiff  calling  upon  him  to  remove   the

encroachment from Khitoli Road at Mihona, District Bhind, M.P.  (hereinafter

referred to as “suit land”). 

Instead of complying with the aforesaid notices, respondent  No.1  –

plaintiff filed Civil Suit No.79/90 in the Court of 1st Civil Judge,  Class-

I, Lahar,  District  Bhind  for  declaration  of  his  title  and  permanent

injunction  for  restraining  the  appellants  from   interfering   in   his

possession over the  suit  land  contending  that  the  suit  land  was  his

ancestral property.

Nagara palika raised objection that the suit was  not

maintainable for want of notice under Section 319 of the Act, 1961.

 

 Whether  the  suit  filed  by  respondent  No.1   –   plaintiff   was

      maintainable for non-compliance of statutory requirement of notice  as

      contemplated by Section 319  of the Act, 1961.

 

 

7.      Section 319 of the Act, 1961 bars suits in  absence  of  notice  and

reads as follows:

           “Section 319-Bar of suit in absence of notice.-(1) No suit shall

           be instituted against any Council or any Councilor,  officer  or

           servant thereof or any person acting under the direction of  any

           such Council, Councilor, officer or servant for anything done or

           purporting to be done under this Act, until  the  expiration  of

           two months next after a notice, in writing, stating the cause of

           action, the name and place of abode of the  intending  plaintiff

           and the relief which he claims, has  been,  in  the  case  of  a

           Council delivered or left at its office, and, in the case of any

           such member, officer, servant or person as aforesaid,  delivered

           to him or left at his office or usual place of

           abode; and the plaint shall contain a statement that such notice

           has been delivered or left.

 

 

           (2)Every suit shall be dismissed unless it is instituted  within

           eight months from the date of the accrual of the  alleged  cause

           of action.

 

 

           (3)Nothing in this section shall be deemed to apply to any  suit

           instituted under Section 54 of the Specific Relief Act, 1877  (I

           of 1877).”

 

 

 

8.      Respondent No.1-plaintiff filed the suit for  declaration  of  title

and permanent injunction.  In view of bar of suit for declaration  of  title

in absence of notice under Section 319 the suit was not  maintainable.   The

Courts below wrongly held that the suit was perpetual injunction though  the

respondent No.1-plaintiff filed the suit for declaration of  title  and  for

permanent injunction.

9.      Respondent No.1-plaintiff cannot derive  advantage  of  sub  Section

(3) of Section 319 which stipulates non-application of the Section 319  when

the suit was instituted under Section 54 of the Specific  Relief  Act,  1877

(old provision) equivalent to Section 38 of the  Specific Relief  Act,  1963

and reads as follows:

           “Section 38.Perpetual injunction when granted.-(1)Subject to the

           other provisions contained in or referred to by this Chapter,  a

           perpetual injunction may be granted to the plaintiff to  prevent

           the breach of an obligation  existing  in  his  favour,  whether

           expressly or by implication.

 

 

           (2)When any such obligation  arises  from  contract,  the  Court

           shall be guided by the rules and provisions contained in Chapter-

           II.

 

 

           (3)When  the  defendant  invades  or  threatens  to  invade  the

           plaintiff’s right to, or enjoyment of, property, the  Court  may

           grant a perpetual injunction in the following cases, namely:

 

 

                 (a)where the defendant is trustee of the property  for  the

                 plaintiff;

 

 

                 (b)where there exists  no  standard  for  ascertaining  the

                 actual damage caused,  or  likely  to  be  causes,  by  the

                 invasion;

 

 

                 (c)where the invasion in such , that compensation in  money

                 would not afford adequate relief;

 

 

                 (d)  where  the  injunction  is  necessary  to  prevent   a

                 multiplicity of judicial proceedings.”

 

 

 

      The benefit aforesaid cannot derive by  Respondent  No.1-plaintiff  as

the  suit  was  filed  for  declaration  of  title  coupled  with  permanent

injunction.  Respondent No.1  having  claimed  title,  the  suit  cannot  be

termed to be suit for perpetual injunction alone.

10.     Along with the trial court and the appellate court, the  High  Court

also failed to  appreciate  the  aforesaid  fact  and  also  overlooked  the

valuable interest and right of public at large, to use the suit  land  which

is a part of public street.  Further, in absence of challenge to the  notice

of eviction issued by the appellant, it was not open to the trial  court  to

decide  the  title  merely  because  permanent   injunction   coupled   with

declaration of title was also sought for.

11.     In view of our finding, we set aside  the  impugned  judgment  dated

11th April, 2012 passed by the High Court  in  second  appeal  as  also  the

judgment and decree passed by  the  first  appellate  court  and  the  trial

court.  It will be open to the appellant to proceed in accordance with  law.

 The appeal is allowed with aforesaid observations.

2014 (April.Part) judis.nic.in/supremecourt/filename=41405

SUDHANSU JYOTI MUKHOPADHAYA, V. GOPALA GOWDA

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4454 OF 2014
(arising out of SLP(C)No.30146 of 2012)
NAGAR PALIKA PARISHAD,
MIHONA AND ANR. … APPELLANTS

VERSUS

RAMNATH AND ANR. … RESPONDENTS

J U D G M E N T

SUDHANSU JYOTI MUKHOPADHAYA, J.
Leave granted.
2. This appeal has been preferred by the appellants-Nagar Palika
Parishad, Mihona (hereinafter referred to as “Nagar Palika”) against the
judgment dated 11th April, 2012 passed by the High Court of Madhya Pradesh
Bench at Gwalior in Second Appeal No.568 of 2009. By the impugned judgment
the High Court dismissed the Second Appeal and affirmed the judgments
passed by the first appellate court and the trial court.
3. The case of the appellant–Nagar Palika is that on finding that
respondent No.1 – plaintiff has made encroachment on a public road, namely,
Khitoli Road, a notice under Section 187 of the M.P. Municipalities Act,
1961 (hereinafter referred o as “Act, 1961”) dated 26th November, 1982 was
issued to respondent No.1–plaintiff calling upon him to remove the
encroachment from Khitoli Road at Mihona, District Bhind, M.P. (hereinafter
referred to as “suit land”). As respondent No.1 – plaintiff refused to
comply with the aforesaid notice and also failed to show any title over the
encroached land, another notice was issued on 23rd December, 1982,
intimating respondent No.1–plaintiff that if the encroachment is not
removed by him it shall be removed by the appellant, in exercise of power
conferred under Section 109 read with Section 223 of the Act, 1961.
4. Instead of complying with the aforesaid notices, respondent No.1 –
plaintiff filed Civil Suit No.79/90 in the Court of 1st Civil Judge, Class-
I, Lahar, District Bhind for declaration of his title and permanent
injunction for restraining the appellants from interfering in his
possession over the suit land contending that the suit land was his
ancestral property. The aforesaid suit was contested by the appellant by
filing written statement contending, inter alia, that the suit land is a
public road which the appellants intend to make a Pakka (Road) in
consonance with the public policy and public interest due to which the
action for removal of encroachment has been taken and that the suit was not
maintainable for want of notice under Section 319 of the Act, 1961.
5. The trial court on hearing the parties by its judgment and decree
dated 20th August, 2008 decreed the suit in favour of respondent
No.1–plaintiff. The trial court held that no notice under Section 319 of
the Act, 1961 is required to be issued before filing a suit for permanent
injunction. The aforesaid judgment was upheld by the first appellate court
by the judgment and decree dated 31st August, 2009 in C.A. No. 20/09.
6. The second appeal preferred by the appellant was dismissed by the
High Court though the appellant raised one of the following substantial
questions of law:
?Whether the suit filed by respondent No.1 – plaintiff was
maintainable for non-compliance of statutory requirement of notice as
contemplated by Section 319 of the Act, 1961.
7. Section 319 of the Act, 1961 bars suits in absence of notice and
reads as follows:
“Section 319-Bar of suit in absence of notice.-(1) No suit shall
be instituted against any Council or any Councilor, officer or
servant thereof or any person acting under the direction of any
such Council, Councilor, officer or servant for anything done or
purporting to be done under this Act, until the expiration of
two months next after a notice, in writing, stating the cause of
action, the name and place of abode of the intending plaintiff
and the relief which he claims, has been, in the case of a
Council delivered or left at its office, and, in the case of any
such member, officer, servant or person as aforesaid, delivered
to him or left at his office or usual place of
abode; and the plaint shall contain a statement that such notice
has been delivered or left.
(2)Every suit shall be dismissed unless it is instituted within
eight months from the date of the accrual of the alleged cause
of action.
(3)Nothing in this section shall be deemed to apply to any suit
instituted under Section 54 of the Specific Relief Act, 1877 (I
of 1877).”

 

8. Respondent No.1-plaintiff filed the suit for declaration of title
and permanent injunction. In view of bar of suit for declaration of title
in absence of notice under Section 319 the suit was not maintainable. The
Courts below wrongly held that the suit was perpetual injunction though the
respondent No.1-plaintiff filed the suit for declaration of title and for
permanent injunction.
9. Respondent No.1-plaintiff cannot derive advantage of sub Section
(3) of Section 319 which stipulates non-application of the Section 319 when
the suit was instituted under Section 54 of the Specific Relief Act, 1877
(old provision) equivalent to Section 38 of the Specific Relief Act, 1963
and reads as follows:
“Section 38.Perpetual injunction when granted.-(1)Subject to the
other provisions contained in or referred to by this Chapter, a
perpetual injunction may be granted to the plaintiff to prevent
the breach of an obligation existing in his favour, whether
expressly or by implication.
(2)When any such obligation arises from contract, the Court
shall be guided by the rules and provisions contained in Chapter-
II.
(3)When the defendant invades or threatens to invade the
plaintiff’s right to, or enjoyment of, property, the Court may
grant a perpetual injunction in the following cases, namely:
(a)where the defendant is trustee of the property for the
plaintiff;
(b)where there exists no standard for ascertaining the
actual damage caused, or likely to be causes, by the
invasion;
(c)where the invasion in such , that compensation in money
would not afford adequate relief;
(d) where the injunction is necessary to prevent a
multiplicity of judicial proceedings.”

 

The benefit aforesaid cannot derive by Respondent No.1-plaintiff as
the suit was filed for declaration of title coupled with permanent
injunction. Respondent No.1 having claimed title, the suit cannot be
termed to be suit for perpetual injunction alone.
10. Along with the trial court and the appellate court, the High Court
also failed to appreciate the aforesaid fact and also overlooked the
valuable interest and right of public at large, to use the suit land which
is a part of public street. Further, in absence of challenge to the notice
of eviction issued by the appellant, it was not open to the trial court to
decide the title merely because permanent injunction coupled with
declaration of title was also sought for.
11. In view of our finding, we set aside the impugned judgment dated
11th April, 2012 passed by the High Court in second appeal as also the
judgment and decree passed by the first appellate court and the trial
court. It will be open to the appellant to proceed in accordance with law.
The appeal is allowed with aforesaid observations.

 

………………………………………………….J.
(SUDHANSU JYOTI MUKHOPADHAYA)

 

 
……………………………………………….J.
(V. GOPALA GOWDA)
NEW DELHI;
APRIL 9, 2014.

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