AKSHOY KUMAR BANERJEE Vs. MAHAMMAD HEDAYATULLA

JUDGEMENT

(1.) The facts from which this appeal arises are not disputed. The plaintiff's case is that he purchased certain lands within the Tollygunge Municipality from the recor-ded owner by a kobala dated 3 September 1936. On 7 September 1936, plaintiff applied for mutation of his name in the municipal records. The transferor gave notice of the transfer by letters dated 2 December, 1936 and subsequent dates. On 17 September 1936, the municipality asked the plaintiff " to produce documentary evidence to prove his title to the property." This is a printed form suggesting that the request to produce documentary evidence is the usual procedure. On 30 September 1936, the plaintiff produced the kobala before the overseer Bishnupada Mitra. The plaintiff produced his document again on 15 January 1937 and 3rd July 1937, in both oases before the Vice-Chairman. On 13 August 1937, the Chairman wrote to the plaintiff to produce his document once more. Thereafter the plaintiff sued for certain declarations of which declarations, that he is an assessee of the Tollygunge Municipality and entitled to be mutated as such in the municipal registers, are now material.

(2.) The defendant municipality raised certain issues of fact, none of which are now material. It also raised a number of issues of law. The trial Court found that the plaintiff had cause of action and that the suit was maintainable under Section 42, Specific Relief Act, and that the plaintiff was entitled to the declarations as mentioned above. The Court of Appeal below observed that the contest on appeal was not on facts that the defendant contended that the suit was not maintainable; that the plaintiff was bound to produce his document of title under the law; that there was no cause of action and that the suit was barred under Section 42, Specific Relief Act. The Court of Appeal below observed at the outset that the crux of the whole case depended on the question whether the municipality had any right to call for the title deed from the plaintiff with regard to his petition for mutation. The learned Subordinate Judge discussed the argument in considerable detail but his finding came back ultimately to the starting point. The hearing in this Court has followed very much the same course. The Court of Appeal below found that as the municipality had not refused to mutate and as the case was still pending the plaintiff had no cause of action; further that the municipality had powers under the Act to call for the document of title; and that the finding of the learned Munsiff there is no evidence that the municipality has denied the plaintiff's right to mutation or has disposed of the mutation case. stood unchallenged by either party and consequently that Section 42, Specific Relief Act, is a bar to the suit.

(3.) In this Court the learned advocate for the appellant opened his arguments by contending that the defendant municipality was not entitled as of right to demand production of the document. He submitted that as there was no direct provision in the Municipal Act, on the principle that where a corporation is created by statute the powers of the corporation are to be found within that statute it followed that the defendant municipality had no right to insist on production of the document. The learned advocate admitted however that there was no judicial decision applying that principle to facts such as those from which the present case arose. Apart from the lack of authority for the proposition, that where a corporation is called upon to alter an entry in its registers the corporation cannot as of right require the person asking the alteration to satisfy it that everything is in order, it will be seen, from the discussion of the relevant sections of the Municipal Act that the municipality must be held to be im-pliedly authorised to call for documents in Order to satisfy itself even although the statute does not expressly authorise the municipality to do so. The learned advocate for the appellant, during the course of his arguments drew my attention to the correspondence between the plaintiff and the defendant municipality. One of these letters is relevant in this connection, namely Ex. 1 (m), dated 2 April, 1937, where the municipality asked for the document " .... so that the question of mutation can be considered according to law by the Commissioners at a meeting." It is certainly a proposition which would require affirmative authority to support it, that a municipality is not as of right entitled to call for papers in Order that it may be in a position to consider an application according to law, that is, to have all the materials before it which it considers it reasonably requires.