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Madhya Pradesh High Court · body

2014 DIGILAW 532 (MP)

Dharnidhar Sharma v. Nagar Nigam, Bhopal

2014-05-06

A.K.SHARMA

body2014
ORDER 1. This second appeal has been filed by the appellant/plaintiff under section 100 of CPC against the judgment and decree dated 21.4.2010 passed by learned 4th Additional District Judge, Bhopal (M.P.) in regular Civil Appeal No.17-A/2008, confirming the judgment and decree dated 29.3.2008 passed by learned 5th Additional Civil Judge to the Court of First Civil Judge Class-1, Bhopal (M.P.) in Civil Suit No.118-A/2007. 2. The appellant/plaintiff has filed the suit for permanent injunction restraining the respondent/defendant from demolishing the house situated on Plot No.14, Barrack No.7, C.T.O. Bairagarh, Bhopal (M.P.). 3. Learned counsel for the appellant submitted that plaintiff has constructed the house over property given to him by society and he has also paid taxes to the Municipal Corporation. 4. On perusal of impugned judgment it is undisputed that the plaintiff has not obtained any written permission for construction of the house although he has deposited property tax etc. The plaintiff has not produced any document of title and Municipal Corporation has given notices under section 302(1) and 307(2) of the Municipal Corporation Act (Ex.P-23 and Ex.P-24) and Ex.D-4 and D-5. 5. Both the Courts below have given concurrent findings that plaintiff has not produced any document of title. He has not obtained any permission for construction of the disputed house. Before the Courts below the objection with regard to deemed permission was raised on behalf of the plaintiff but there is no application for permission to construct the house and in the absence of any such application, the presumption of deemed permission does not arise. If the society had filed an application for permission to construct, such application or copy of the application has not been filed before the Courts below. 6. The payment of tax to the Municipal Corporation or even entry in the record of Municipal Corporation as owner of the house does not create any title by itself. Such entries are only for the purpose of recovery of Municipal taxes, therefore, while depositing taxes even for long time no title is created in favour of plaintiff. 7. 6. The payment of tax to the Municipal Corporation or even entry in the record of Municipal Corporation as owner of the house does not create any title by itself. Such entries are only for the purpose of recovery of Municipal taxes, therefore, while depositing taxes even for long time no title is created in favour of plaintiff. 7. Learned counsel for the appellant has drawn attention towards the provisions of section 307 of the Municipal Corporation Act which requires notice to be issued by the Commissioner or agent duly authorized by them in that behalf and submitted that notices Ex.P-23 and Ex.P-24 have not been signed by Commissioner himself, they have been signed by some Assistant Engineer and this fact has been admitted by defendant's witness also, therefore, in the absence of any written order of the Commissioner authorizing the Assistant Engineer for signing notices on his behalf the notice Ex.P-23 and Ex.P-24 are liable to be set aside. But the seal over the notice shows that it has been issued under the powers delegated by Commissioner under section 69(4) of the M.P. Municipal Corporation Act. The work done by a public servant shall be presumed to be under proper authority unless it is rebutted by the oversight, therefore, it was the duty of the plaintiff to call for the record whether Assistant Engineer has been authorized to sign the notices by the Commissioner, therefore, the non production of record of delegation of power by the Commissioner to the Assistant Engineer does not make the notice, which contains the seal impression regarding delegation of the power, illegal, therefore, notices issued by the Assistant Engineer under delegation of powers by the Commissioner, cannot be said to be illegal. 8. Considering the concurrent findings of both the Courts below with regard to absence of any document of title, permission for construction and even application for permission of construction, both the Courts below are justified in passing the impugned judgment and decree. The concurrent findings of both the Courts below are based on facts and there is no substantial question of law involved in the appeal, therefore, this appeal is dismissed.