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2004 DIGILAW 754 (MP)

STATE OF MADHYA PRADESH v. JIWANLAL CHIKOTIYA

2004-09-09

CHANDRESH BHUSHAN, S.S.JHA

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( 1 ) THIS appeal is by defendants. ( 2 ) PLAINTIFFS/respondents had filed a civil suit claiming therein that a temple delineated by red line with the plaint map be declared as public property and perpetual injunction be issued against the defendants restraining them from damaging the temple. It is pleaded that there is a public temple adjacent to the stores of Public Works department at Anand Nagar in Thatipur bajaria. The temple consist of statue of Shiv, hanuman and Santoshi Maa from past 42 years. Adjacent to the temple a boundary wall has been constructed and in the compound there are fruit bearing trees such as mangos, Jamun, grapes and other trees of neem, sheesham and peepal. The residents worship in the temple. A notice was affixed by defendant No. 2 in the name of plaintiff no. 2 R. C. Chakotia to remove the encroachment within seven days otherwise he will be dispossessed. Thus, cause of action for bringing the suit was from the date of notice by defendant No. 2 to remove the encroachment. ( 3 ) IT is contended by the plaintiffs that the neighbours have spent money in construction of the temple and planting of trees is within the knowledge of Public Works department and Municipal Corporation gwalior. Plaintiff has claimed adverse possession against the State Government. It is further contended by the plaintiffs that they have served notice under Section 80 C. P. C. upon the defendants. Plaintiff has valued the suit at Rs. 1,00,200/- and for the purpose of injunction suit was valued at rs. 200/ -. ( 4 ) DEFENDANTS denied the claim and submitted that plaintiff has unlawfully encroached upon the land adjacent to the temple, therefore notice was served upon them. Plaintiff has no right to file the suit in respect of the temple. The boundaries of temple itself disclose that temple is constructed over the land of public Works Department and the land belongs to the Government and is a part of Government bungalow No. 16. Respondents/plaintiffs were noticed by defendant No. 2 and restrained from encroaching upon the Government land. It is submitted that in the garb of temple plaintiffs are trying to encroach upon the Government land. Defendant has denied the valuation and submitted, that proper court-fees has not been paid. Respondents/plaintiffs were noticed by defendant No. 2 and restrained from encroaching upon the Government land. It is submitted that in the garb of temple plaintiffs are trying to encroach upon the Government land. Defendant has denied the valuation and submitted, that proper court-fees has not been paid. ( 5 ) ISSUES were framed and after recording the evidence trial Court has decreed the suit. ( 6 ) COUNSEL for the appellant submitted that from bare reading of plaint, suit is in the representative capacity and this suit is not maintainable as it has been filed without the leave of the Court. No suit in the representative capacity under Order 1, rule 8 CPC can be filed without prior permission of the Court. It is further contended by counsel for the appellant that once plaintiffs have come forward with a case regarding the public temple then also suit was not maintainable in the absence of registration of said public temple under the M. P. Public Trust act. Section 32 of the M. P. Public Trust Act prohibits filing of a suit by an unregistered public trust. He submitted that from the evidence on record, there is no proof that plaintiff has any right, title or interest over the suit land. Plaintiffs had admitted in their deposition that they do not know who is the owner of the land and on the contrary they admitted that the land belongs to the Government and it is also admitted by them that the place where they live is also a Govt. land. They could not produce any document pertaining to title of the land. ( 7 ) COUNSEL for the appellant invited attention of the Court to the deposition of witness p. W. 1 Harishankar. He has stated that he knows plaintiff Jeevanlal and Dr. R. C. Chakotia. He has further stated that jeevanlal is the manager of the temple. In para 2 of his deposition he has stated that on the northern side of the temple there is an open land, on the southern side there is a road, on the eastern side there is an open side and 011 the western side exists a bungalow of the Dy. Commissioner. In the cross-examination he has stated that he has seen the disputed property. He was told by his father and grandmother that the land does not belong to the State Government. Commissioner. In the cross-examination he has stated that he has seen the disputed property. He was told by his father and grandmother that the land does not belong to the State Government. He has not seen any document pertaining to title of the property. Then he has deposed that he has seen registry of the temple regarding title, but the registered document has not been filed in the suit. P. W. 2 rameshchandra Chakotia has deposed that there is a temple, which is being looked after by his father Jeevanlal Chakotia. However, in para 7 of his deposition he admits that his father was Government servant in the Irrigation Department and retired from service 14-15 years back. In para 6 he has admitted that when temple was constructed at that time he had no knowledge regarding the ownership of the land. He admitted that there was a pit outside his house, which was being used by people for defecating and they were using the pit as a dust bin. Therefore, the pit was filled and temple was constructed. The temple was constructed in the year 1965-66 and some idols were kept. Thereafter he never tried to find out, who is the owner of the said land. Then he has further admitted that five years prior to receiving of the notice, he learnt that the suit property belongs to Public Works Department as they have dug the plinth for constructing a room but since the land was not proper for constructing the room, therefore they have asked them to vacate the land of the temple. In para 7 he has admitted that after his retirement 15-16 years Mr. Jeevanlal Chakotia is looking after the temple, which shows that the temple is under the encroachment of the plaintiffs from past 15-16 years only i. e. somewhere in the year 1983 as the evidence is recorded in the year 1997. He has admitted hat the temple is constructed in the open land of bungalow No. 16 of Public works Department and the temple is constructed over the open land of the said bungalow. In para 9 of his deposition he admitted that when Public Works Department has given him a notice, then he has not submitted his reply in writing. He admitted that he has not sought any permission to construct latrine from Municipal Corporation. In para 9 of his deposition he admitted that when Public Works Department has given him a notice, then he has not submitted his reply in writing. He admitted that he has not sought any permission to construct latrine from Municipal Corporation. He also admitted that no permission was sought by him for constructing the temple. P. W. 3 jeevanlal chakotia has deposed that he has constructed the temple with the help of the neighbours. Earlier there was a urinal and toilet at this place and thereafter he sought permission from the Public Works Department for constructing the temple and construction of septic latrine. He admitted in para 5 of his deposition that he has no knowledge about the ownership of land over which temple is constructed. He has further admitted that the place where he resides is also a Government land. He has admitted that the suit land is a public place and thereafter Public Works Department has constructed its office and house. Bungalow no. 16 belongs to Public Works Department. He has admitted that he has not sought any permission. Temple has not been registered as a trust. In para 8 he has deposed that he retired about 8 years back and before his retirement he was posted at Sheopur where he lived for 15-20 years. Therefore his possession if any could not be more than 8 years on the said land where the alleged temple has been constructed. ( 8 ) P. W. 4 Patiram has deposed that sixty-seventy thousand rupees have been spent on the temple. He has deposed that he has no knowledge if the land belongs to the Government. ( 9 ) D. W. 1 Rameshchand Bansal has deposed that the temple is constructed over the Government land and the land belongs to the State Government. Notice was issued to the defendants to remove the construction. D. W. 2 Uttamalal Shrivastava has deposed that near the temple house has been constructed by plaintiff Jeevanlal Chakotia. He has stated that the valuation of the property is Rs. 7-8 lac and the land was lying open for past 20 years. He has stated that choukidar of the house has constructed the temple. ( 10 ) ONLY question involved in the case is whether plaintiff has any right to file the suit. He has stated that the valuation of the property is Rs. 7-8 lac and the land was lying open for past 20 years. He has stated that choukidar of the house has constructed the temple. ( 10 ) ONLY question involved in the case is whether plaintiff has any right to file the suit. ( 11 ) THOUGH the prayer is for declaring that this is a public property but no permission was sought for bringing the suit in the representative capacity. It is apparent that when notice was served upon the plaintiff to remove the encroachment, they have filed this suit. No document of the title has been filed. P. W. 4 Patiram in para 8 of the deposition has stated that temple was constructed about 8-9 years back i. e. somewhere in the year 1989 or 90. It appears that after the encroachments were made by the plaintiffs and they were served with the notice then they have filed a suit. Even notice under Section 80 CPC is also not proved. Ex. P/2 filed by the plaintiffs itself demonstrates that notice was sent to the Collector district Gwalior and Commissioner Gwalior division and Sub-Divisional Officer, Public works Department. It may be mentioned that for filing a suit against the Government the authority be named as plaintiff or defendant as provided under Section 79 of the c. P. C. When a suit is to be filed against the State Government or State then notice should be sent to the State Government through the Secretary or the Collector of the district. Section 80 specifically provides that notice must be addressed to the State Government through the Secretary to that Government or the Collector of the District. However, there is no provision for sending notice to the Collector or any other officer. Such notices cannot be termed as notice under Section 80 CPC. Since the notice is not addressed properly and it has not been addressed to the State Government, there was no notice under Section 80 of the Code of Civil Procedure and in the absence of notice under Section 80 CPC also the suit was not maintainable. Even otherwise from the evidence on record, it is apparent that the land belongs to the State Government and they have rightly issued notice for removal of the encroachment. We further find that plaintiff himself has valued the suit for rs. Even otherwise from the evidence on record, it is apparent that the land belongs to the State Government and they have rightly issued notice for removal of the encroachment. We further find that plaintiff himself has valued the suit for rs. 1,00,200/- and for the purpose of injunction has arbitrarily valued the suit as rs. 200/ -. He has filed the suit for declaration with the injunction as a consequential relief, therefore he was bound to pay ad valorem Court-fees as per valuation of the suit for the relief of injunction. We find that ad valorem Court-fee has not been paid. However, the amount of deficit Court-fees, if not paid by the plaintiff, shall be recovered from him by issuing a certificate in accordance with law. ( 12 ) AFTER considering the overall evidence, we find that the judgment and decree passed by the trial Court is perverse and contrary to evidence on record. Judgment and decree passed by the trial court is set aside and suit is dismissed with costs throughout. Counsel fee as per schedule. Counsel for the State submits that it is a valuable land of the property and it will take steps to secure possession of the land to safeguard the public interest. ( 13 ) IN the result appeal succeeds and is allowed with costs throughout. Appeal allowed. .