NARAYAN GANPAT DALWALE Vs. MUNICIPAL COUNCIL

JUDGEMENT

(1.) Following substantial question of law was recorded by my learned brother earlier in this appeal:--

(2.) One Dagdabai was their ancestor. She was owner of the suit house which is situated within the local limits of Municipal Council, Jalgaon. Dagdabai, probably did not pay property tax, and so, in March 1968, the suit house was attached by the Municipal Council. On 4th July, 1968, the Municipal Council offered the suit house to public at large in an auction sale. The house was sold ultimately to respondent No. 2. The sale stood confirmed on 12th August, 1968, after following due process of law. The appellants-plaintiffs asserted that the auction was bad because the mandatory notice was not given to Dagdabai.

(3.) The appellants-plaintiffs drafted the plaint of this suit saying that the cause of action for the suit arose on 12th August, 1968, and the same continued to arise every day thereafter. They also made prayer for possession of the suit house along with declaration that the auction was bad in law and not binding on them. While drafting the plaint, they further mentioned that they would seek possession of the suit house in this suit, but would pay required court fee (on the basis of market value of the suit house) subsequently. But, before the suit was filed in the office of the Court, the prayer clause (B) for possession of the suit house was removed. The question is, what is the effect of such removal of prayer On the face of it, the appellants-plaintiffs at the eleventh hour decided not to seek possession. They were certain about it when they removed original prayer clause (B). If they did not want possession of the suit house, then whatever stated in respect of the possession of the suit house else where in the plaint stood automatically removed though it is not physically removed from the plaint.