PURI MUNICIPALITY Vs. SRADHAMANI DEVI

JUDGEMENT

(1.) The pivotal question involved in this appeal is whether learned subordinate Judge, Puri was justified in holding that in the circumstances of the case there was no necessity for notice under S. 349 of the Orissa Municipal Act, 1950 (in short, the 'Act'), by reversing the contrary conclusion of learned Addl. Munsif, Puri.

(2.) A brief reference to the factual aspect is necessary because other conclusions essentially relate to facts with no perversity attached to it, and cannot be gone into this appeal. Plaintiff (respondent herein) filed the suit in respect of 15 square liaks of land relating to plot No. 1190, under Khata No. 111 in mouza Kundheibentasahi of Puri town. Plot Nos. l191, l184 and l183 are adjoining plots of plot No. 1190, and plot No. 1193 is to its adjoining North. Nor ancestors-in-interest were the owners in possession of these plots, and plot No. 1193 measuring Ac. 0.020 decimals was sold to one Nagendra Nath Mukhopadhyaya by her grand-father Jagannath Praharaj by a registered sale-deed during his life time. They had a service latrine in plot No. l190 and an agreement was entered into between her grand-father Jagannath Praharaj and Nagendranath Mukhopadhyaya at the time of sale of plot No. l190 for allowing the Municipality sweepers to come over that plot for cleaning the latrine. She sold plot No. 1183 to one Chandramani Maharana and was in possession of plot Nos. 1184, 1190 and 1191 which are in a compact area consisting of her house and backyard. With the permission of Municipal authorities, she converted her service latrine into a septic latrine and as she did not find it necessary to keep the suit land vacant, she enclosed it with a fence. Puri Municipality through its authorities /functionaries/ agents threatened to enter into the suit land by breacking open the fence raised by her, though it had no right, title and interest over the land. She filed the suit for declaration of title, confirmation of possession over the suit, land and for permanent injunction.

(3.) The Municipality took the plea that the suit land locally called "Nadigohiri" is existing since time immemorial, and is being used for the sweepers' passage for cleaning public latrines of local people. It has been exercising its rights over the same to the knowledge of plaintiff and public at large for the above purpose. It had acquired prescriptive title over it and plaintiff's title, if any, over it was lost by efflux of time. In No. 1 settlement "Nadigahiri" is recorded as a separate plot and as such, plaintiff has no right, title and interest over it. Learned Addl. Munsif (now designated as Civil Judge (Junior Division)) held that plaintiff had right, title and interest over the land. But was of the view that before institution of the suit notice under S. 349 of the Act was mandatory and in the absence of such notice, the suit was not maintainable. Accordingly, he dismissed the suit. Learned subordinate Judge (now designated as Civil Judge (Senior Division)) confirmed the conclusions of learned Civil Judge (Junior Division) regarding right, title and interest. Additionally, he held that notice was not necessary.