LexNAGAR PALIKA PARISHAD MIHONA AND ANR. versus MADHYA PRADESH MUNICIPALITIES ACT, 1961
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[2014] 4 S.C.R. 811 NAGAR PALIKA PARISHAD MIHONA AND ANR. V. RAMNATH AND ANR. (Civil Appeal No. 4454 of 2014) APRIL 9, 2014 .. [SUDHANSU JYOTI MUKHOPADHAYA AND V. GOPALA GOWDA, JJ.] MADHYA PRADESH MUNICIPALITIES ACT, 1961: s. 319 - Bar of suit in absence of notice - Suit for declaration of title and permanent injunction - No notice u/s 319 issued by plaintiff to NagarPalika Parishad - Held: In view A B c of bar of suit for declaration of title in absence of notice uls 319, the suit was not maintainable -- Courts below wrongly held D that the suit was for perpetual injunction - Plaintiff having claimed title, the suit cannot be termed to be suit for perpetual injunction alone - Judgments of all the three courts below, set aside - It will be open to Nagar Palika Parishad toproceed in accordance with law. E The instant appeal arose out of the order of the High Court dismissing the second appeal filed by the appellant- Nagar Palika Parishad against the judgment and decree of the trial court and the first appellate court decreeing the suit for declaration and permanent F injunction filed by respondent no. 1 against the appellant- defendant Nagar Palika Parishad. The stand of the appellant -Parishad was that respondent no. 1 had encroached upon the suit land which was a public road and did not comply with the notices issued to him in this G regarc;:I. It was submitted by the appellant that before the High Court it had specifically raised one of the substantial 811 H 812 SUPREME COUf-<.T REPORTS [2014] 4 S.C.R. A questions of law as to whether the suit filed by respondent no. I-plaintiff was maintainable for non- compliance of statutory requirement of notice as contemplated by s. 319 of the Madhya Pradesh Municipalities Act, 1961. B Allowing the appeal, the Court HELD: 1.1 Respondent No.1-plaintiff filed the suit for declaration of title and permanent injunction. In view of C bar of suit for declaration of title in absence of notice u/s 319 of the Madhya Pradesh Municipalities Act, 1961, the suit was not maintainable. The courts below wrongly held that the suit was perpetual injunction. Respondent No.1 having claimed title, the suit cannot be termed to be suit for perpetual injunction alone. The High Court also D has overlooked the valuable interest and right of public at large, to use the suit land which is a part of public st'reet. [Para 8-10] [815-D-E; 816-D-F] 1.2 Respondent No.1- plaintiff cannot derive E advantage of sub s. (3) of s. 319 which stipulates non- application of s. 319 when the suit was instituted u/s 54 of the Specific Relief Act, 1877 (old provision) equivalent to s. 38 of the Specific Relief Act, 1963. Further, in absence of challenge to the notice of eviction issued by F 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 impugned judgment passed by the High Court in second appeal as also the judgment and decree passed by the G first appellate court and the trial court are set aside. It will be open to the appellant to proceed in accordance with law. [Para 9-11] [815-E-F; 816-F-G] H CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4454 of 2014. NAGAR PAL!KA PARISHAD MIHONA v. RAMNATH 813 From the Judgment and Order dated 11.04.2012 of the A High Court of M.P. at Gwalior in SA No. 568 of 2009. S.K. Dubey, Sumit Kumar Sharma, Niraj Sharma for the Appellants. D.S. Parmar, Susheel Tamar, Ankit R., Abha R. Sharma B for the Respondents. The Judgment of the Court was delivered by SUDHANSU JYOTI MUKHOPADHAYA, J. 1. Leave granted. C 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 D 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 E 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 enc
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