NAGAR PALIKA PARISHAD MIHONA Vs. RAMNATH

JUDGEMENT

(1.) This second appeal under Section 100 of CPC assails the concurrent findings of both the courts below whereby the* suit filed for declaration of ancestral title and possession over the suit land with permanent injunction restraining the defendants from interfering with the easementary rights of the plaintiff, has been allowed and the appeal filed against which has been rejected. The sole contention raised by the counsel for the Municipal Council, Mihona, District Bhind is that the trial court and the first appellate court failed to see that the suit was barred by Section 319(1) of Municipalities Act, 1961 (Act of 1961 for brevity) on account of failure of the plaintiff to give notice of two months as provided therein. In support of his contention Learned Counsel for appellants Municipal Council has relied upon the decision of Division Bench in the case of Municipality Vs. Gas Authority of India Limited and other, 2006 1 MPHT 276.

(2.) Per contra Learned Counsel for respondent/ plaintiff has contended that the bar contained in Section 319(1) of the Act, 1961 cannot come in the way of plaintiff to maintain his suit as the said bar comes into operation only when the suit in question is for something done or purported to be done under the Act of 1961 and not otherwise. The further contention of the Learned Counsel for the plaintiff/ respondent herein is that suit in question was saved by the provision of sub-Section (3) of Section 319 of the Act of 1961 from the rigor of bar contained in Section 319(1) of the Act of 1961. In support of this contention reliance has been placed on the decisions in the cases of Nagar Palika Parishad, Mandsaur Vs. Sarva Daman,1973 JabLJ 13, Buddiprakash Sharma Vs. Nagar Palika, Joura, 1991 MPLJ 933 & Hari Ram Vs. Nagar Palika Prashashak, 2001 4 MPHT 269.

(3.) Bare perusal of the provision of Section 319(1) of the Act of 1961 makes it clear that the prohibitive implication contained therein can be invoked only when the suit in question seeks a remedy arising from the Act of 1961.