The Municipal Council, Katol ... vs Smt. Kamladevi Wd/O Yogeshwar ...
2016 Latest Caselaw 1528 Bom

    23-J-SA-371-14                                                                                1/5


                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                          
                               NAGPUR BENCH, NAGPUR.

                                SECOND APPEAL NO.371 OF 2014




                                                                  
    The Municipal Council, Katol, 
    Thr. its Chief Officer, Katol, Tah. Katol, 




                                                                 
    Dist. Nagpur.                                                      ... Appellant. 

    -vs- 




                                                    
    1.  Kamladevi wd/o Yogeshwar Rathi
         Aged Major, Occ. Household, 

    2.  Vijay s/o Yogeshwar Rathi,
         Aged Major, Occ. Business, 
                                      
         Nos. 1 & 2 R/o Chandika Chowk at Katol, 
                                     
         Tah. Katol,  Dist. Nagpur. 

    3.  Durga w/o Gaurishankarji Bhattad
         Occ. Household, R/o Sitabuldi, Nagpur, 
              


         Tah. & Dist. Nagpur. 
           



    4.  Lata d/o Yogeshwar Rathi
         Aged Major, Occ. Business 

    5.  Rajesh s/o Yogeshwar Rathi





         Aged Major, Occ. Business 
         Nos. 4 and 5 R/o Chandika Chowk at Katol, 
         Tah. Katol, Dist. Nagpur.                                   ... Respondents.   





    Shri Shantanu Khedkar, Advocate for appellant. 
    Shri S. N. Bhattad, Advocate for respondents. 


                                                  CORAM  : A.S.CHANDURKAR, J. 

DATE : April 15, 2016

Oral Judgment :

This appeal has been filed by the original defendant who is

aggrieved by the decree passed by the Appellate Court dated 20/04/2014

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whereby the suit for declaration filed by the respondents that the

construction activities carried out by the appellant with regard to the

compound wall in the open space marked 'B' in plot No.4 of the layout is

illegal.

It is the case of the respondents that their predecessor was

granted permission to convert two agricultural plots of land into a layout.

According to the respondents, the Municipal Council sanctioned the revised

layout on 21/11/1998 and permission was granted to sell certain plots to the

respondents. The respondents on noticing certain construction activity going

on in the open portion of plot No.4 filed a suit for declaration that said

construction activity of the compound wall was illegal. A permanent

injunction was also sought to restrain the appellant from continuing with

such construction.

2. The suit was opposed by the appellant on the ground that notice

under Section 304(1) of the Maharashtra Municipal Councils, Nagar

Panchayat and Industrial Townships Act, 1965 (for short, the said Act) was

not issued. It was further pleaded that the erection of compound wall was

for protecting the plot in question and it was denied that any illegal act was

being done by the appellant.

3. The Trial Court by judgment dated 05/04/2011 dismissed the suit

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holding that the respondents had not proved that the erection of compound

wall was illegal. The Appellate Court allowed the appeal holding that as the

suit was for permanent injunction, a notice under Section 304 (1) of the said

Act was not required. It was further held that the construction activity by

the appellant was without any legal basis. Hence the decree as sought was

granted.

4.

Shri S. Khedkar, the learned counsel for the appellant referred to

the averments in the plaint and submitted that it was not the case of the

respondents that they were in possession of the suit property. He submitted

that without seeking any declaration as regards its ownership and without

being in possession of the suit property, the suit for declaration simplicitor

was not maintainable. Relying upon the judgments of the Honourable

Supreme Court in Ramji Rai and anr. v. Jagdish Mallah (Dead) Thr. LRs.

And anr.(2007) 14 Supreme Court Cases 200 and Thimmaiah v. Shabira

and ors. (2008) 4 Supreme Court Cases 182, it was submitted that the

respondents were bound by the case pleaded by them and therefore the suit

as filed could not be treated to be under Section 38 of the Specific Relief Act,

1963. Therefore the suit ought to have been filed after issuing a notice

under Section 304(1) of the said Act. He further submitted that the

findings recorded by the Appellate Court in this regard were not based on

evidence and therefore the suit could not have been decreed.

     23-J-SA-371-14                                                                                  4/5


    5.           Shri     S.   N.   Bhattad,   the   learned   counsel   submitted   that   the




                                                                                            

respondents were aggrieved by the illegal construction activity of the

appellant and had therefore approached the civil Court. The Appellate Court

had clearly recorded a finding that the appellant was not in lawful possession

of the suit property and therefore it would not be said that the respondents

were not in possession of the same. He submitted that the declaration

sought was with regard to illegal construction of the compound wall and

therefore the suit was maintainable without issuing any notice under Section

304(1) of the said Act.

6. Having perused the impugned judgment, it can be seen that on

the basis of the evidence on record, the Appellate Court in paragraph 17 of

its judgment recorded a finding that as per the document at Exhibit-37, the

appellant had not taken possession of the open space at any point of time.

The document at Exhibit-65 dated 20/10/1977 was also not considered to be

a document by which possession was handed over to the appellant. It was on

that basis that a finding was recorded that the appellant was not in

possession.

The legal position as laid down by the Honourable Supreme

Court in the decisions in Ramji Rai (supra) and Thimmaiah (supra) cannot

be disputed. However, in the present case the pleadings in the plaint do not

indicate that it was a case pleaded that the respondents were not in

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possession. The averments in the plaint if read as a whole can be construed

to mean that the activity of construction of the compound wall was alleged to

be illegal at the hands of the appellant and therefore the relief of permanent

injunction was sought. The appellate Court in paragraph 25 of its judgment

has recorded a finding that it was the respondents who were in possession.

The suit as filed was for perpetual injunction as contemplated by Section 38

of the Specific Relief Act, 1963. The provisions of Section 304(4) of the said

Act dispense with the requirement of a notice under Section 304(1) of the

said Act when the suit is one filed under Section 38 of the Specific Relief Act,

1963. Hence the submission that the suit was not maintainable as no notice

under Section 304(1) of the said Act was issued, cannot be accepted. The

respondents were within their right in seeking permanent injunction against

the appellant. The findings recorded by the Appellate Court are based on the

evidence that was led by the parties. The second appeal does not give rise to

any substantial question of law. Same is therefore dismissed with no order

as to costs.

Shri S. N. Bhattad, the learned counsel for the respondents states

that the decree in question shall not be executed for a period of eights weeks

from today. Statement accepted.

In view of dismissal of the appeal, all pending civil applications

are also disposed of accordingly.

JUDGE Asmita