Research › Search › Judgment

Rajasthan High Court · body

2015 DIGILAW 1700 (RAJ)

Gopal lal v. Nagar Palika Chakshu, Jaipur

2015-09-22

PRAKASH GUPTA

body2015
JUDGMENT 1. - This second appeal is directed against the Judgment and Decree dated 03/09/2009 passed by the learned District Judge Jaipur District, Jaipur (hereinafter referred to as 'the learned appellate Court') in Civil Regular Appeal No. 61/2008 whereby, the learned appellate Court has confirmed the judgment and decree dated 31/05/2008 passed by the Additional Civil Judge (Junior Division) No. 2, Jaipur District, Jaipur (hereinafter referred to as 'the learned trial court') in civil suit No. 125/2005, dismissing the suit of plaintiff-appellant for declaration and mandatory injunction. 2. The facts in brief, giving rise to the this second appeal are that the appellant-plaintiff filed a civil suit for declaration and permanent injunction against the defendant-respondent seeking relief for declaring him as the owner of the disputed property on the basis of adverse possession. It is prayed that defendant be directed to regularise the disputed property in his favour. He also prayed for permanent injunction directing respondent-defendant not to disposses him from the disputed property and not to demolish the construction raised by him on the disputed property and also to restrain the defendant from interfering with the use and occupation of the disputed property. It is also stated in the plaint that plaintiff is in possession since last 80 years over the disputed property. 3. The defendant-respondent resisted the suit by filing written statement wherein, the defendant denied the facts mentioned in the plaint and stated that the description and site plan of the disputed property is wrong. The defendant regularised the Kham Makan of the plaintiff considering his possession prior to 1968 but in the Board Meeting dated 30/09/2004, the regularisation was not confirmed. Consequently, money which was taken from the plaintiff, was returned to him and the order of regularisation was set aside. In view of this, the plaintiff has no right to get declaration in his favour on the basis of adverse possession. It is also stated that prior to filing of the suit, notice under Section 271 of the Rajasthan Municipalities Act, 1959 (for short 'the Act of 1959) was not served by the plaintiff to the defendant therefore, the suit is not maintainable for want of required notice. 4. It is also stated that prior to filing of the suit, notice under Section 271 of the Rajasthan Municipalities Act, 1959 (for short 'the Act of 1959) was not served by the plaintiff to the defendant therefore, the suit is not maintainable for want of required notice. 4. The learned trial Court vide its judgment and decree dated 31/05/2008 dismissed the suit filed by the plaintiff-appellant against which an appeal was filed by the plaintiff-appellant which was also dismissed by the learned appellate Court by the impugned judgment and decree. Hence, this second appeal. 5. Heard the learned counsel for the parties and perused the material on record. 6. It is submitted by the learned counsel for the plaintiff-appellant that both the Courts below have committed error of law in dismissing the suit on the ground that before filing the suit the plaintiff-appellant had not served a notice under Section 271 of the Act of 1959. Both the Courts below have committed error of law in not deciding the suit on merits. The findings of both the courts below as to the requirement of notice under Section 271 of the Act of 1959 are perverse and arbitrary and bad in law. It is submitted by the learned counsel for the plaintiff-appellant that serving notice under Section 271 of the Act of 1959 is a mere procedural requirement and the same does not go to the root of the jurisdiction. The objection with regard to the notice under Section 271 of the Act can be waived. He has placed reliance on Suresh Chandra & Dhan Raj v. Shri Hanuman Prasad 2006 (4) WLC (Raj.) 452. 7. On the other hand, learned counsel for the respondent has supported the judgments and decrees passed by the Courts below. 8. I have considered rival submissions made by the learned counsel for the parties and perused the material on record minutely and carefully. 9. It is beneficial to reproduce Section 271 of the Act of 1959: "271. 7. On the other hand, learned counsel for the respondent has supported the judgments and decrees passed by the Courts below. 8. I have considered rival submissions made by the learned counsel for the parties and perused the material on record minutely and carefully. 9. It is beneficial to reproduce Section 271 of the Act of 1959: "271. Suits against board or its officers-(1) No suit shall be instituted against a Board, or against the Chairman, Vice-Chairman, member, officer or servant of a Board or against any person acting under the direction of any of them in respect of an act done or purporting to have been done in its or his official capacity, until the expiration of two months next after notice thereof in writing has been in the case of a Board, left at its office and, in the case of the Chairman, Vice-Chairman, member, officer, servant or person delivered to him or left at his office or place of abode, explicitly stating the cause of action, the nature of the relief sought, the amount of compensation claimed and the name and place of abode of the intending plaintiff, and the plaint shall contain a statement that such notice has been so delivered or left. (2) No action such as is described in Sub-section (1) shall, unless it is an action for the recovery of immovable property or for a declaration of title, be commenced otherwise than within six months next after the accrual of the cause of action. (3) Nothing in Sub-section (1) shall be construed to apply to a suit wherein the only relief claimed is an injunction of which the object would be defeated by the giving of the notice or the postponement of the commencement of the suit or proceeding." 10. A bare perusal of the said provision reveal that no suit shall be instituted against the Municipality and its Officers until the expiration of two months next after notice thereof in writing has been given explicitly stating the cause of action, the nature of the relief sought and the plaint contain statement that such a notice was delivered or left. A bare perusal of the said provision reveal that no suit shall be instituted against the Municipality and its Officers until the expiration of two months next after notice thereof in writing has been given explicitly stating the cause of action, the nature of the relief sought and the plaint contain statement that such a notice was delivered or left. Subsection (3) provides an exception to sub-section (1) to the effect that the said provision would not apply to a suit wherein the only relief claimed is an injunction of which the object would be defeated by giving of the notice or the postponement of the commencement of the suit or proceedings. 11. The coordinate Bench of this Court in 1993 (1) WLC (Raj.) 11 Mohammed Shafi and Others v. Sant Kumar and Others observed as under:- "The opening words of this Section clearly show that this Section is non-obstante in nature. It states that no suit shall be filed against a board, chairman, vice-chairman, member, officer or servant of a board in respect of an act done or purporting to have been done in its or his official capacity, unless a period of two months has expired, after a notice regarding filing of the suit has been given in writing. The suit has been filed for declaration as well as perpetual injunction. Sub-Section (3) of Section 271 lays down that sub-section (1) shall not be applicable to any suit, in which the relief claimed is only an injunction and the object would be defeated by giving of the notice or the postponement of the commencement of the suit or proceeding. In this case, the suit has been filed for declaration as well as for perpetual injunction, therefore, the provisions of sub-section (1) of Section 271 are evidently applicable and the provisions are clearly mandatory in nature. The exception, regarding applicability of the provisions has been mentioned in the Section itself. I am fortified in my opinion as this Court, in Nagar Palika, Nathdwara v. Temple Board, Nathdwara, while considering the applicability of Section 271, held that when the plaintiff claims relief of declaration of title as well injunction, it will be necessary to give notice before filing the suit. As pointed out by Mr. I am fortified in my opinion as this Court, in Nagar Palika, Nathdwara v. Temple Board, Nathdwara, while considering the applicability of Section 271, held that when the plaintiff claims relief of declaration of title as well injunction, it will be necessary to give notice before filing the suit. As pointed out by Mr. Gupta, in Gangappa Gurupadappa Gugwad v. Rachawwa and others, it was held by the Supreme Court that if a notice under Section 80 of the C. P. C. was not served in terms thereof, it shall be duty of the Court to reject the plaint recording an order to that effect with reasons for the order and it will not be necessary to try all the issues framed." 12. In the present case, admittedly the suit is for declaration and injunction both and the same is not a suit praying for simpliciter injunction. The use of word 'only' in sub-section (3) of Section 271 of the Act of 1959 is not without significance. 13. In view of the above, prior to filing of the suit, notice under Section 271 of the Act of 1959 should have been given by the plaintiff to the defendant in the matter at hand. 14. So far as the judgment in the case of Suresh Kumar (supra) cited by the learned counsel for the appellant is concerned, the said judgment is not applicable in this case because in that case, the coordinate bench of this court framed substantial question of law as to whether the objection with regard to the notice under Section 271 of the Act of 1959 can be waived and it shall be deemed to have been waived if not taken in the written statement. The question was referred to larger Bench and the larger Bench answered that if no objection had been taken in the written statement with regard to the notice under Section 271 of the Act of 1959, then same can be waived. 15. However, admittedly in the matter at hand, there has been no waiver because a specific objection was taken by the defendant in its written statement in this regard and issue No. 3 was framed by the learned trial Court on the said objection. 16. 15. However, admittedly in the matter at hand, there has been no waiver because a specific objection was taken by the defendant in its written statement in this regard and issue No. 3 was framed by the learned trial Court on the said objection. 16. Both the learned Courts below have rightly held that in the present suit, notice under Section 271 of the Act of 1959 should have been given prior to filing of the suit and without giving said notice the suit is not maintainable. 17. There is no question of law much less substantial questions of law involved in the present appeal. This Court is not inclined to interfere with the impugned Judgments and decree passed by the Courts below.In the result, there is no merit in this appeal and the same is, therefore, dismissed.Appeal dismissed. *******