TOWN AREA MANDHA Vs. MTMANGLO

JUDGEMENT

(1.) This is an appeal against an order remanding a suit for decision on the merits. It was passed under the following circumstances: The Town Area of Moudaha in the district of Hamipur found that one Munna had built a shop without permission of the Town Area Committee and prosecuted him and subsequently served on him a notice to demolish the building. Thereupon his wife, Mt. Manglo, instituted the suit out of which this appeal has arisen to obtain a declaration that the shop was her property having been sold to her in lieu of her dower as early as 1928 and that the shop was not liable to be demolished because it had been constructed before the sections which authorise the Town Area Committee to demolish unauthorised buildings came into force.

(2.) One of the pleas taken in defence was that the suit was not maintainable in a civil Court. That plea found favour with the learned Munsif and he dismissed the suit without going into the other questions raised in the case. The learned Subordinate Judge to whom an appeal was taken by Mt. Manglo set aside the decree of dismissal and remarked that the question could not be decided without certain further findings of fact, namely, whether the shop stood within the limits of the Town Area and whether it had been built before certain sections of the Municipalities Act, were made unforceablc within the Maudaha Town Area. It is against this order of remand that the Town Area has filed this appeal.

(3.) The learned Counsel for the appellant has relied strongly on a decision of this Court in Sheo Ram V/s. Sone Lal , and he contends that the decision of the first Court was right. The argument on behalf of the Town Area is that it was open to the respondent to file an appeal against an order passed against her husband and she not. having appealed was not entitled to maintain the suit.