NAGAR PALIKA PARISHAD MIHONA AND ANR.versusMADHYA PRADESH MUNICIPALITIES ACT, 1961

                      [2014] 4 S.C.R. 811


     NAGAR PALIKA PARISHAD MIHONA AND ANR.                          A
                               V.
                     RAMNATH AND ANR.
               (Civil Appeal No. 4454 of 2014)
                        APRIL 9, 2014
                                                     ..             B
       [SUDHANSU JYOTI MUKHOPADHAYA AND
              V. GOPALA GOWDA, JJ.]

     MADHYA PRADESH MUNICIPALITIES ACT, 1961:
                                                                    c
     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
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]

        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    4454 of 2014.
H
  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
encroachment from Khitoli Road at Mihona, District Bhind, M.P. F
(hereinafter referred to as "suit land"). As respondent No.1 -
plaintiff refused to comply with the aforesaid notice and also
failed to show any title over the encroached land, another notice
was issued on 23rd December, 1982, intimating respondent
No.1-plaintiff that if the encroachment is not removed by him it G
shall be removed by the appellant, in exercise of power
conferred under Section 109 read with Section 223 of the Act,
1961.
    4. Instead of complying with the aforesaid notices,
respondent No.1 - plaintiff filed Civil Suit No.79/90 in the Court   H
    814      SUPREME COURT REPORTS                  [2014] 4 S.C.R.


A of 1st Civil Judge, Class-I, Lahar. District Bhind for declaration
  of his title and permanent injunction for restraining the
  appellants from interfering in his possession over the suit land
  contending that the suit land was his ancestral property. The
  aforesaid suit was contested by the appellant by filing written
B statement contending, inter alia, that the suit land is a public
  road which the appellants intend to make a Pakka (Road) in
  consonance with the public policy and public interest due to
  which the action for removal of encroachment has been taken
  and that the suit was not maintainable for want of notice under
c Section 319 of the Act, 1961.
      5. The trial court on hearing the parties by its judgment and
  decree dated 20th August, 2008 decreed the suit in favour of
  respondent No.1-plaintiff. The trial court held that no notice
  under Section 319 of the Act, 1961 is required to be issued
D before filing a suit for permanent injunction. The aforesaid
  judgment was upheld by the first appellate court by the judgment
  and decree dated 31st August, 2009 in C.A. No. 20/09.
       6. The second appeal preferred by the appellant was
E dismissed by the High Court though the appellant raised one
  of the following substantial questions of law:
          • Whether the suit filed by respondent No.1 - plaintiff was
          maintainable for non-compliance of statutory requirement
          of notice as contemplated by Section 319 of the Act, 1961.
F
         7. Section 319 of the Act, 1961 bars suits in absence of
    notice and reads as follows:
          "Section 319-Bar of suit in absence of notice.-(1) No suit
          shall be instituted against any Council or any Councilor,
G         officer or servant thereof or any person acting under the
          direction of any such Council, Councilor, officer or servant
          for anything done or purporting to be done under this Act,
          until the expiration of two months next after a notice, in
          writing, stating the cause of action, the name and place of
H         abode of the intending plaintiff and the relief which he
  NAGAR PALIKA PARISHAD MIHONA v. RAMNATH                       815
     [SUDHANSU JYOTI MUKHOPADHAYA, J.]
     claims, has been, in the case of a Council delivered or left      A
     at its office, and, in the case of any such member, officer,
     servant or person as aforesaid, delivered to him or left at
     his office or usual place of abode; and the plaint shall
     contain a statement that such notice has been delivered
     or~.                                                              B
   . {2)Every suit shall be dismissed unless it is instituted within
     eight months from the date of the accrual of the alleged
     cause of action.
     {3)Nothing in this section shall be deemed to apply to any        c
     suit instituted under Section 54 of the Specific Relief Act,
     1877 {I of 1877)."
      8. Respondent No.1-plaintiff filed the suit for declaration
of title and permanent injunction. In view of bar of suit for
declaration of title in absence of notice under Section 319 the        D
suit was not maintainable. The Courts below wrongly held that
the suit was perpetual injunction though the respondent No.1-
plaintiff filed the suit for declaration of title and for permanent
injunction.
                                                                       E
     9. Respondent No.1-plaintiff cannot derive advantage of
sub Section (3) of Section 319 which stipulates non-application
of the Section 319 when the suit was instituted under Section
54 of the Specific Relief Act, 1877 (old provision) equivalent
to Section 38 of the Specific Relief Act, 1963 and reads as
                                                                       F
follows:
    "Section 38.Perpetual injunction when granted.-
    {1)Subject to the other provisions contained in or referred
    to by this Chapter, -a perpetual injunction may be granted
    to the plaintiff to prevent the breach of an obligation            G
    existing in his favour, whether expressly or by implication.
    (2)When any such obligation arises from contract, the
    Court shall be guided by the rules and provisions contained
    in.Chapter-II.
                                                                       H
    816       SUPREME COURT REPORTS                   [2014] 4 S.C.R.


A         (3)When the defendant invades or threatens to invade the
          plaintiffs right to, or enjoyment of, property, the Court may
          grant a perpetual injunction in the following cases, namely:
          (a)where the defendant is trustee of the property for the
          plaintiff;
B
          (b)where there exists no standard for ascertaining the
          actual damage caused, or likely to be causes, by the
          invasion;
          (c)where the invasion in such, that compensation in money
c         would not afford adequate relief;
          (d) where the injunction is necessary to prevent a
          multiplicity of judicial proceedings.'~
       The benefit aforesaid cannot derive by Respondent No.1-
D plaintiff as the suit was filed for declaration of title coupled with
  permanent injunction. Respondent No.1 having claimed title,
  the suit cannot be termed to be suit for perpetual injunction
  alone.
E          10. Along with the trial court and the appellate court, the
    High Court also failed to appreciate the aforesaid fact and also
    overlooked the valuable interest and right of public at large, to
    use the suit land which is a part of public street. Further, in
    absence of challenge to the notice of eviction issued by the
F   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.
        11. In view of our finding, we set aside the impugned
  judgment dated 11th April, 2012 passed by the High Court in
G second appeal as also the judgment and decree pa~sed by the
  first appellate court and the trial court. It will be open to the
  appellant to proceed in accordance with law. The appeal is
  allowed with aforesaid observations.

H .R.P.                                              Appeal allowed.