1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR O R D E R S.B.CIVIL SECOND APPEAL NO.88/1987 Gopi Chand & Ors. Vs. Mithan Lal & Ors. S.B.Civil Second Appeal under Section 100 C.P.C. against the judgment and decree dated 2.1.1987 passed by Additional District Judge, Dholpur in Civil Appeal No.7/85 & 6/85 modifying the decree passed by Munsiff, Dholpur dated 3.9.1973. **** DATE OF ORDER: October 8, 2009 HON'BLE MR.JUSTICE S.P.PATHAK Mr.Prag Rastogi. for the appellants Mr.S.M.Mehta,Sr.Counsel assisted by Ms.Feroz Akhtar, for the respondents BY THE COURT: 1. This civil second appeal under Section 100 C.P.C. has been filed against the judgment and decree passed by the Additional District Judge, Dholpur dated 2.1.1987 in Civil Appeals No.s 7/85 and 6/85 modifying the decree passed by the Munsiff, Dholpur dated 3.9.1973 in Civil Suit No. 132/1966/173/1972 and Suit No.47/1966/17/1972; suit for declaration, permanent injunction and demolition etc. 2. Briefly stated that facts necessary for the disposal of this appeal are that respondent Mithan Lal & others filed a Civil Suit No.132/1966 on 5.1.1966 for declaration and ownership of 2 land AKLD as marked in Ex.1 Site Plan and in alternative declaration of right easement way through door X and right of light & air through window and right of flow of water through spouts and right of user of land KBCL marked in Ex.1 Site Plan, permanent injunction and demolition of Chabutra was also sought in the plaint. The appellants' stand was that the land marked AKLD in Ex.1 Site Plan was their land and the plaintiff- respondents have opened door, windows, spouts etc. It was also the stand that the disputed land was their land and they sought permission from the municipality for making construction on it and according to the permission construction was raised. Another suit was filed by the appellants for permanent injunction against respondents on 18.1.1966 (Suit No.47/1966). In the suit, the stand of the respondents was that they had the ownership on the disputed land and it was also the stand that they had right of easement and same were being enjoyed since last 20 years and for light and air through windows and for flowing of water through spouts was their valuable right and the same was being used. The learned trial court consolidated and tried both the suits together and decreed the suit holding the appellants as owner of the disputed land. A decree against the appellants was passed on the basis of right of easement of the respondents. 3. The respondent Mithan Lal & others preferred appeal, which came to be decided by the learned Addl. District Judge on 2.1.1987. The appellants also filed cross objections. The learned Addl. District Judge, Dholpur dismissed the suit of the appellants 3 and partly allowed the appeal and cross objection and set aside the judgment and decree dated 20.9.1973. The respondents' suit was decreed on the basis of easementary right available to them and the appellants were restrained not to raise construction adjacent to the wall of the house A to D at the northern side. The appellants were also restrained not to raise any construction upto 3½ ft. in width land adjacent to the house and in case any construction was made the same was directed to be removed. The appellants were further restrained not to create any hindrance in the use of the northern side gate, which is allegedly opened by the respondents 10-15 years ago and not to deprive the respondents of light and air through windows and door at place X and further the appellants were directed not to create any hindrance in the right of flow of water through spouts. It is against aforesaid judgment and decree the present second appeal. 4. This Court while admitting the appeal formulated following questions of law on 25.4.1988:- (1) Whether the learned lower court could have held disputed land to be Government land when it was not case of the appellants and respondents? (2) Whether the learned lower court could have held that Ex.A1/B decree passed in favour of the appellants was bad there was misdescription of name of defendants and the question could be allowed to be raised and for first time in appeal? 5. I have heard Mr.Prag Rastogi learned counsel for the appellants and Mr.S.M.Mehta Sr.Counsel for the respondents and carefully perused the impugned judgment passed by the court 4 below and also perused the material available on record. REGARDING QUESTION NO.1:- 6. It has been contended by the learned counsel for the appellants that the learned appellate court completely failed to appreciate the evidence and in fact passed a judgment and decree in the absence of evidence, documents and pleadings of the parties. It is contended that as early as on 3rd August, 1950 a decree was passed in relation to the disputed land in favour of the appellants. The decree was tendered in evidence as Ex.A1/B and a site plan was also attached with the decree i.e. Ex.A/1/1. According to the learned counsel, in view of above documents, it was not within the competence of the learned appellate court to have declared the land to be the government land. 7. On the other hand, the learned Sr.Counsel Mr.Mehta has contended that the so called decree, copy of which has been filed as Ex.A1 in the trial court is void and having no binding effect on the respondents inasmuch as that the respondents were not party to the suit and the suit was not filed as per the requirement of the Dholpur Municipality Act, 1933. According to the learned Senior Counsel, Municipal committee is a body coroporate as per Section 8 of the Act and it can be sued in its corporate name and in the instant case the suit was filed by Ram Krishan the ancestor of appellants against Secretary, Municipal Board, Bari. Therefore, the suit which as per the decree appears 5 that the same was decreed ex parte, no copy of the judgment delivered was filed. It is contended that Municipality was never represented and it was a collusive decree. It is further contended that in the suit filed by the appellants no reference has been made of the judgment and decree passed in the year 1950 and this aspect of the matter even has not been denied during the course of arguments. According to the learned counsel, the documents on the file would reveal that a permission was granted for raising some construction to the appellants by the Municipality and it was specifically directed that leaving 4 ft. disputed land the appellants shall make their constructions. It has also been the contention that in the present matter two suits were filed one by the appellants and other by the respondents. Both the parties were claiming title over the suit land and in the suit filed by the appellants no declaration was sought in relation to the land in question. Therefore, they were not entitled to any injunction. According to the learned counsel, in the above circumstances, the learned appellate court has decreed the suit after setting aside the judgment and decree passed by the trial court to the extent of easementary right which had become available to them on the basis of evidence adduced by both sides. Therefore, it cannot be said that the appellate court has traversed beyond the pleadings and the relief sought by the parties in the present matter. 8. I have considered the submissions made by both sides. 6 9. The appellants in support of their contentions has placed reliance on the following decisions:- (1) Siddu Venkappa Devadiga vs. Smt.Rangu S.Devadiga (AIR 1977 Supreme Court 890) (2) Shams-u-din Khan vs. Agha Sajjid Fateh Shah (A.I.R.1924 Oudh 309) (3) Murari Mohan Dev vs. Secretary to the Govt. of India & Ors. (A.I.r. 1985 Supreme Court 931) (4) Municipal Commissioners, Dacca vs. Gangamani Choudhurani (A.I.R. 1940 Calcutta 153) (5) Municipal Board Khumber vs. Yadu Nath Singh (2004(1) CDR 148(Raj.)) (6) Ram Kirpal Choudhary & Ors. Vs. Mt.Munabati Kumri & Ors. (AIR 1958 Patna 477) 10. On the other hand, the learned counsel for the respondents has relied on the following decisions:- (1) Manahem S.Yeshoova vs. Union of India & Ors. (AIR 1960 Bombay 196) (2) The State of Kerala vs. The General Manager, Southern Railway,Madras (AIR 1976 Supreme Court 2538) (3) Dr.H.S.Rikhy vs. The New Delhi Municipal Committee (AIR 1962 Supreme Court 554) 11. Before I proceed to examine the question of law framed in this appeal, it shall be proper to carefully examine the authorities cited at Bar by both sides. 12. In the case of Siddu Venkappa Devadiga (supra) the Hon'ble Apex Court observed that High Court went wrong in making out an entirely new case of benami transaction, which was not pleaded and was not the subject-matter of the trial. This authority is entirely based on different facts and the legal position, which emerges out is that in a case where issue 7 regarding benami transaction was never pleaded nor evidence was produced. The Supreme Court considering the matter to be one of Benami transaction observed that since an entirely new case of benami transaction which was not subject matter of the trial, therefore, the High Court went wrong in making out entirely a new case. In the present matter both the parties have filed suits. Appellants' suit was in relation to permanent injunction, where declaration was not sought. The respondents' suit was for declaration and also based on easementary rights. The parties have led evidence. Copies of the judgments and decree were filed. Therefore, it cannot be said that the appellate court traversed beyond pleadings and material available on the file and made an entirely new case. 13. In the case of Shamsuddin Khan (supra) suit was filed by the Municipal Board with the name of Chairman and the defendants filed the appeal, did not take any such objection in the trial court or in the appellate court and for the first time such an objection was raised before the High Court. Therefore, the Hon'ble above High court observed that at worst, it was a case where a suit had been instituted in the name of wrong person as the plaintiff and the error could be easily corrected under the provisions of Rule 10 of Order 1. This authority is also of no help to the appellants for the reason that such an objection was raised for the first time before the High Court when the appellant had all the opportunities before the trial court as well as before 8 the appellate court for moving application for correction in the array of parties. In the instant case, the respondents were not party. The suit was also not filed as prescribed under the provisions of the Municipalities Act. 14. In the case of Murari Mohan Deb (supra), the Hon'ble Apex Court while considering order of compulsory retirement passed without following the principles of natural justice observed that surprisingly when the matter was taken up for hearing, the learned Judicial Commissioner suo moto raised the objection that in the absence of Union of India being made party, the petition was not properly constituted. In the above matter, the Hon'ble Apex Court finding that respondent No.1 was shown to be the Secretary to the Government of India, Ministry of Home Affairs. Therefore, it was a technical error in the draftsmanship of the petition by a lawyer, a Forester a class IV low grade servant should not have been made to suffer. It has also been observed that after lapse of six years, such an objection was raised, therefore, the objection was over-ruled. In the above case, one additional reason was there that the appointing authority of appellant Murari Mohan, the Chief Commissioner of the Government of Tripura as well the Chief Forest Officer, who passed the impugned order were impleaded and they represented the administration of Tripura Government as well as the concerned officers. In the instant case, no copy of the judgment of 1950 9 has been filed but a copy of the decree has been filed where the Municipality has been proceeded ex parte and suit has been filed against the Chairman of the Municipality. In view of above, the above authority is also of no help to the appellants. 15. In Municipal Commissioners, Dacca (supra), the order of assessment made by Municipal Commissioner was challenged and suit was instituted against the Chairman of the Municipal Council instead of Commissioners themselves. Therefore, the Hon'ble Calcutta High Court finding that mis- description of name is not always the true criterion for determining the party really sued. It is required to see the nature of the allegations in the plaint and the nature of relief sought should be considered. In the present matter, where appellants want to take help from a decree passed in the year 1950, which is an ex parte decree, Municipality was not represented, respondents were not party to the case, copy of the judgment has not been filed and tendered in evidence so as to come to the conclusion in what circumstance ex parte decree was passed. Therefore, in my opinion, this authority is also of any assistance to the appellants. 16. In the case of Municipal Board Khumber (supra), this court considered the provisions of the Rajasthan Municipalities Act, 1959 and sections 67(c),(d), 78 & 7. The suit was for recovery of money. The issues were framed and one of the issue was whether through Chairman the suit filed was maintainable. 10 The court observed that since the suit was instituted in the name of Board and as provided under section 67(d) of the Act, the Chairman was competent to sign it. Therefore, the suit was held maintainable. In the instant case section 3(8) of the Dholpur Municipality Act does not say that suit should be filed through the Chairman. It only provides that every Municipal Committee shall be a Body-corporate, having perpetual succession and a common seal and subject to restrictions or qualifications imposed by this or any other enactments vested with the capacity of sueing or being sued in its corporate name. Thus, in the facts and circumstances, this authority is also of no help to the appellants. AUTHORITIES RELIED UPON BY THE RESPONDENTS: 17. In the case of Dr.H.S.Rikhy (supra), the Hon'ble Apex Court while considering the provisions of the Delhi and Ajmer Rent Control Act and also considering the provisions of the Contract Act observed in Para 13 as under:- “In this connection, it is also convenient here to notice the argument that the Committee is estopped by its conduct from challenging the enforceability of the contract. The answer to the argument is that where a statute makes a specific provision that a body corporate has to act in a particular manner, and in no other, that provision of law being mandatory and not directory has to be strictly followed. The statement of the law in paragraph 427 of the same volume of Hasbury's Laws of England to the following effect settles the controversy against the appellants: 11 “Result must not be ultra vires-A party cannot be representation, any more than by other means, raise against himself an estoppel so as to create a state of things which he is legally disabled from creating. Thus, a corporate or statutory body cannot be estopped from denying that it has entered into a contract which if was ultra vires for it to make. No corporate body can be bound by estoppel to do something beyond its powers, or to refrain from doing what it is its duty to do .............” “ Thus, it appears that in the above case New Delhi Municipality was party and non-compliance of a provision of law of Punjab Municipality Act, 1911 particularly section 18, 46 & 47 were considered and the Hon'ble Apex Court observed that where a statute makes a specific provision that a body corporate has to act in a particular manner, an in no other, that provision of law being mandatory and not directory, has to be strictly followed. In the instant case section 3(8) of the Dholpur Municipality Act provides that Municipal Committee is a body corporate and it can be sued in its corporate name and the decree of 1950, which has been relied upon is not in consonance with the provisions of Section 8 of the Municipalities Act. 18. In the case of The State of Kerala (supra), the Hon'ble Apex court observed in Para 8 that yet the treatment of the different railway administrations as different units for the purpose of fastening liability on the Union of India has got significance and relevance. Viewed in that light, it would follow that the definition of the “railway administration” given in Section 3(6) of the Railways Act, 1890 does not make the 12 railway administration or its General Manager a legal entity or a corporate body or a juridical person to represent the railway administration as such in suits. The claim in a suit for recovery of money under the Act against the different railway administrations owned by the Central government in accordance with the general principle of law contained in Order 1 Rule 3 of the Code of Civil Procedure has got to be made against the person against whom the right to relief is alleged to exist. In the above case, the Union of India brought party in the session of mid period and that was considered to be fatal. 19. In the case of Manahem S.Yeshoova (supra), the Hon'ble Bombay High Court in a matter where Collector (Customs) was made party in the suit, it was observed by the Hon'ble Apex Court that Collector (Custom) is a legal entity, but is merely an office occupied by several persons from time to time as appointed by the authorities. Hence a suit cannot be filed against or in the name of the Collector of customs. 20. After carefully examining the authorities what I find is that the first appellate court has discussed almost all relevant provisions of law, facts and documents exhibited and also discussed the evidence led by the parties. The learned appellate court while deciding the appeal framed five points for determination. The point No.3 was relevant, which was in relation to the doors windows and the passage fromwhere water was passing through spouts found that same were in existence 13 since 1943-44, which were more than 20 years prior to filing of the suit and the plaintiff could establish this aspect of the matter. 21. In relation to point No.4, the learned appellate court found that the appellant is basing his claim on the basis of a decree of 1950 and that decree was of no effect as agains the respondents for the reasons that in view of provisions of Section 3(8) of the Dholpur Municipalities Act, 1933, Municipal Committee was a body corporate and same was liable to be sued in its corporate name and since suit was filed against the Secretary, he being only office bearer of the committee and the Act did not provide that suits against Municipality should be filed through the Secretary. Therefore, the decree of 1950 was of no consequence. The learned appellate court while arriving at this conclusion relied upon various decisions of the courts, reference of same having been made in the appellate judgment. It was also found that both parties knew about their case and since two suits were filed and even the appellant was granted permission by the Municipality for raising construction with the condition of leaving 4 ft. width of land, therefore, the respondents were entitled to make use of the doors, which were at place X and they were also entitled to air and light and further they were also entitled to have right of flow of water through spouts as long user of the land shown in Ex.1. 22. At this stage, the learned counsel for the appellants 14 submitted that in fact they are only challenging the part of the decree where inquiry into the matter has been ordered on the basis of conjectures and surmises. It is suffice to say that the learned appellate court while setting aside/modifying the decree has not ordered any inquiry, therefore, considering the submissions of the learned counsel I do not find that the appellate court committed any illegality and granted relief to the respondents outside the pleadings of the parties. 23. In view of above, answer to question No.1 is that the appellants' suit was only for injunction, no declaration was sought, therefore, no injunction in their favour was to be granted and further parties adduced evidence and the decree of 1950 relied upon by the appellants in their favour is not having any binding effect against the respondents as the suit was not filed in accordance with the provisions of Section 3(8) of the Dholpur Municipality Act, 1933. As per the documents tendered by the Municipality Ex30 i.e. of 24th July, 1948, it appears that Municipality passed order in relation to the land in dispute to the effect that it was municipal land. Therefore, the learned court below has not committed any illegality. REGARDING QUESTION NO.2: 24. As discussed in detail while examining question No.1 and it has been found that the land in dispute is a government municipal land and the decree relied upon by the appellants of 15 1950 is of no help to them, it may have some evidenciary value because as the suit was not filed in accordance with the provisions of Municipalities Act, 1933 and further it was decreed ex parte without impleading respondents party in the suit, only certified copy of decree in relation to judgment in the year 1950 has been filed and it does not disclose as to in what circumstances and on what basis suit was decreed. Since Municipality was not made party as per the provisions of Municipalities Act, 1933 of Dholpur and the suit was also proceeded ex parte and the present respondents were also not party to the suit, therefore, the submission of the learned counsel that appellate court was not competent to observe that the decree was bad in law is not tenable. It was not the mis-description of the party by mistake in the suit filed in the year 1950, in fact the suit was filed against the Secretary of the Municipality and he had chosen to remain absent during the proceedings, therefore, an ex parte decree has been obtained and in this regard parties have led evidence and produced of documents, therefore, it cannot be said that the appellate court has not properly considered the matter and committed illegality in holding that the decree of 1950 having no binding effect on the parties. In view of foregoing discussion answer to question No.2 is accordingly. 25. Application under Order 41 Rule 2 C.P.C. also requires to be disposed of, which was filed in the year 2007 with the prayer to frame additional substantial point of law for 16 consideration to the effect that the lower court could have granted new relief in the absence of pleading, prayer and evidence in favour of the plaintiffs Mitthan Lal and others. Reply to the application has also been filed. 26. After carefully considering the application and reply thereof and also after taking into consideration the entire facts and circumstances of the case as having been discussed hereinabove, I do not find any substance in this application, the same as well as the appeal both requires to be dismissed. In the result, the appeal stands dismissed. ` (S.P.PATHAK) J. BKS/-