LACHHMAN DASS Vs. MUNICIPAL BOARD MUZAFFA

JUDGEMENT

(1.) THIS is a plaintiff's second appeal arising from a suit for injunction to restrain the defendant Municipal Board, Muzaffarnagar from interfering in the plaintiff's possession over any part of the land shown by letters 'CDEFG' on the plaint map. The plaintiff's case was that the land belongs to him and the defendant had constructed a kharanja thereon and thus it had encroached on the same. The trial court found that the land in suit belonged to the plaintiff but dismissed the suit on the ground that the necessary notice under section 326 of the U. P. Municipal Act had not been given. On appeal the lower appellate court has confirmed the trial court's decree dismissing the suit. The two courts below have relied on the case of Haji Ahmed and others v. Municipal Board, Allahabad (1952 A.L.J. 223 (F.B.).) for holding that the plaintiff's case was not covered by sub-section (4) of section 326 which provides that:- "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 woi'ld be defeated by giving of the notice or the postponement of the commencement of the suit or proceedings." In the present case, the only relief claimed was injunction, but the two courts below have held that the object of the suit could not be said to be defeated by giving of a notice as the plaintiff could obtain damages for the action complained of. The learned Civil Judge has quoted a passage from the Full Bench decision is Haji Ahmad Raza's case. The passage is: ''It is only in case where the loss cannot, be adequately compensated by damages that the provisions of sub-section (4) of section 326 of the Municipalities Act are attracted............" Here the plaintiff did not complain of any loss by the threatened act of the defendant. He complained of a legal injury which was most certainly likely to be caused to him by the un law full interference in his possession over the land by the defendant. The threatened act of constructing a kharanja, that is to say a pucca path-way, over the plaintiff's land would have amounted to his dispossession by the Municipal Board. The plaintiff wanted to prevent that by bringing the suit for injunction. Although the plaintiff could have got back possession by bringing a suit for possession after he had been so dispossessed by the Municipal Board It cannot be said that the object of bringing the suit for injunction would not have been defeated by giving the required notice under section 326 i.e. if the plaintiff had, given the notice and waited for the statutory period, the object of the suit for injunction would certainly have been defeated if the Municipal Board had in the meanwhile, dispossessed him by making a kharanja over his land. He could not adequately be compensated for the injury by damages. As observed by the Full Bench, in cases of loss. Where the suit is for injunction to prevent the occurrence of that loss, a notice may not be insisted upon only in cases where the threatened loss could not be adequately compensated by damages, but in case of threatened dispossession from land the principle laid down by the Full Bench could not be said to be applicable at all, for as demonstrated above if the plaintiff was dispossessed in the meanwhile, the object of the suit for injunction to prevent the defendant from dispossessing him from the land would, most certainly, have been defeated and the remedy by way of a suit for possession with or without mesne profits is not adequate compensation for the injury which a person suffers from dispossession for land, particularly in a case where by quick action prevent his dispossession by obtaining injunction. I am of opinion that the two courts below did not correctly appreciate the Full Bench decision and have misapplied it to the present case. The suit was not4bad for want of notice under section 326 of the U. P. Municipalities Act. The findings of the trial court on the other issues decided is the plaintiff's favour were not assailed before the lower appellate court, although the defendant would have, also supported the decree by assailing those findings. Learned counsel for the defendant respondent wanted to challenge these findings before me but has not been able to show how they could be said to be incorrect in any manner. In the result, the appeal succeeds and is allowed. The suit is decreed with costs throughout. A perpetual injunction will be issued to the defendant restraining it from interfering with the plaintiff's possession over the land lying to the north of the red line marked by letters 'EF' and to the west of the red line marked by the letters 'FG' on the map prepared by Sri S. P. Tyagi, Advocate Commissioner (paper no. 34-C) which shall form part of the decree.