S.J Mukhopadhaya, J.— Leave granted. This appeal has been preferred by the appellants, Nagar Palika Parishad, Mihona (hereinafter referred to as “the Nagar Palika”) against the judgment dated 11-4-2012 passed by the High Court of Madhya Pradesh, Bench at Gwalior in Nagar Palika Parishad, Mihona v. Ramnath 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.
2. The case of the appellant Nagar Palika is that on finding that Respondent 1-plaintiff has made encroachment on a public road, namely, Khitoli Road, a notice under Section 187 of the M.P Municipalities Act, 1961 (hereinafter referred to as “the 1961 Act”) dated 26-11-1982 was issued to Respondent 1-plaintiff calling upon him to remove the encroachment from Khitoli Road at Mihona, District Bhind, M.P (hereinafter referred to as “the suit land”). As Respondent 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 23-12-1982, intimating Respondent 1-plaintiff that if the encroachment is not removed by him it shall be removed by the appellant, in exercise of power conferred under Section 109 read with Section 223 of the 1961 Act.
3. Instead of complying with the aforesaid notices, Respondent 1-plaintiff filed Civil Suit No. 79 of 1990 in the Court of the 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 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 Section 319 of the 1961 Act.
4. The trial court on hearing the parties by its judgment and decree dated 20-8-2008 decreed the suit in favour of Respondent 1-plaintiff. The trial court held that no notice under Section 319 of the 1961 Act is required to be issued before filing a suit for permanent injunction. The aforesaid judgment was upheld by the first appellate court by the judgment and decree dated 31-8-2009 in CA No. 20 of 2009.
5. The second appeal preferred by the appellant was dismissed by the High Court though the appellant raised one of the following substantial questions of law: “Whether the suit filed by Respondent 1-plaintiff was maintainable for non-compliance with statutory requirement of notice as contemplated by Section 319 of the 1961 Act.”
6. Section 319 of the 1961 Act bars suits in absence of notice and reads as follows:
“319. Bar of suit in absence of notice.—(1) No suit shall be instituted against any council or any councillor, officer or servant thereof or any person acting under the direction of any such council, councillor, 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 abode of the intending plaintiff and the relief which he claims, has been, in the case of a council delivered or left 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 left.
(2) Every such 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 suit instituted under Section 54 of the Specific Relief Act, 1877 (1 of 1877).”
7. Respondent 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 suit was not maintainable. The courts below wrongly held that the suit was for perpetual injunction though Respondent 1-plaintiff filed the suit for declaration of title and for permanent injunction.
8. Respondent 1-plaintiff cannot derive advantage of sub-section (3) of Section 319 which stipulates non-application of 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 follows:
“38. Perpetual injunctions 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 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.
(3) When the defendant invades or threatens to invade the plaintiff's 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) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;
(c) where the invasion is such that compensation in money would not afford adequate relief;
(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.”
The benefit aforesaid cannot be derived by Respondent 1-plaintiff as the suit was filed for declaration of title coupled with permanent injunction. Respondent 1 having claimed title, the suit cannot be termed to be suit for perpetual injunction alone.
9. 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 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.
10. In view of our finding, we set aside the impugned judgment dated 11-4-2012 passed by the High Court in Nagar Palika Parishad, Mihona v. Ramnath Second Appeal No. 568 of 2009 as also the judgment and decree passed 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 the aforesaid observations.
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