KANHAIYALAL Vs. NAGAR PALIKA DEWAS

JUDGEMENT

(1.) THIS is an appeal by the plaintiff whose suit for a declaration of his title to a certain land described in the plaint, for a declaration that it is unnecessary to demolish a wall erected on the land with the permission of the Municipal Committee, and for the further declaration that a resolution passed by the Dewas State Cabinet on 27th January 1948 holding that the land belonged to the State and directing the plaintiff to demolish the wall was ultra -vires, has been dismissed by the Courts below.

(2.) THE suit was dismissed on the ground that it was not filed within six months from the date of the accrual of the cause of action as required by S. 17 of the Dewas Municipality Act 1941. That section reads as follows: -

(3.) AS regards the plaintiff's claim for a declaration that the resolution passed by the Dewas State Cabinet was ultra -vires, a notice was no doubt necessary under S. 17 of the Act. But it seems to me wholly unnecessary for the plaintiff to claim this relied. Whether it was within or outside the province of the Dewas State Cabinet to pass such a resolution it is plain that the resolution would be ineffective if it is held that the plaintiff appellant is the owner of the land. It must be noted that the Dewas State Cabinet passed the resolution containing the direction to the plaintiff to demolish the wall not after accepting his title to the land but holding that the permission to erect the wall was wrongly accorded by the Municipal Committee. The direction was based on the assertion that the land belonged to the Dewas State. That being so, it cannot be said that when the plaintiff is claiming the declaration that it is unnecessary for him to demolish the wall he is in any way calling in question or complaining against any act of the cancellation of the permission, and the plaintiff's suit is, therefore, for an act done or purporting to be done under the Act.