IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. Second Appeal No. 70/2004 Nagar Palika Parishad, Haldwani, Kathgodam through its Executive Officer .. Appellant. Versus District Judge, Nainital and 2 others.. Respondents. Mr. Ashish Joshi, learned counsel for the appellant. Mr. M.L. Agarwal, learned counsel for the respondents. UDated: 11-8-2008 UHon’ble B.C. Kandpal, J. This second appeal arises out of the judgment and decree dated 14-6-2004, passed by District Judge, Nainital, in Civil Appeal No. 04 of 2004, whereby the appeal was allowed and the judgment and decree dated 28-2-2004 passed by Civil Judge (Junior Division) Nainital in O.S. No. 15/2003, was set aside and the suit was decreed. 2- Brief facts of the case, are that the plaintiffs/respondents instituted a suit before the Civil Judge (Junior Division), Nainital against the defendants/appellants for declaration and permanent injunction on the ground that the plaintiffs are the Bhumidhar of plot Nos. 698, 699, 700, 703 and 704, of Khata No. 10 and they are owner of the constructions raised over this land, situate in revenue village Ranibagh, Chaughanpata, Patti Chakhata Pargana and Tehsil Nainital. The said land do not fall within the boundary of Nagar Palika Haldwani. According to the plaintiffs the said land is belonging to Nitant valley, agricultural land and rural area of the forest of Tehsil Nainital. But the State Government vide notification dated 6-2-1956 under the head of ‘Kathgodam’ has illegally included the main road of Ranibagh, sloppy ravine of Gola river, and the barren land of the valley, and part of agricultural land and forest land in Nagar 2 Palika Haldwani, whereas Ranibagh is a separate revenue village of Tehsil Nainital. The houses of the plaintiffs also do not fall within the boundary of Nagar Palika Haldwani, hence the tax imposed by Nagar Palika is illegal. Therefore the plaintiffs filed for declaration that their land and houses situated in village Ranibagh, Chaudhanpata Patti Chakhata Tehsil Nainital, are not situated within the boundary of Nagar Palika Haldwani- Kathgodam and the defendants be restrained in realizing any tax from them. 3- The defendants neither appeared before the Trial Court nor filed any written statement. However the suit was dismissed by Civil Judge (J.D.) on the ground firstly that the disputed area comes within the limits of Nagar Palika Haldwani-Kathgodam and secondly that the plaintiffs did not serve the defendants with the notice U/S 80 C.P.C. 4- Feeling aggrieved, the plaintiffs preferred appeal before the District Judge Nainital, who vide impugned judgment and decree dated 14-6-2004 allowed the appeal and set aside the judgment and decree of the trial court and decreed the suit of the plaintiffs and directed that the land belonging to the plaintiffs shall not be treated the land within the limits of Nagar Palika Haldwani-Kathgodam until the specific plot numbers etc are mentioned in the notification. The first appellate court also restrained the defendants from realizing tax from the plaintiffs until the specific mention of the plots in the notification. 5- Against the judgment and decree passed by the first appellate court the defendants/appellants have preferred this second appeal before this Court. 3 6- This appeal has been admitted on the following substantial questions of law:- (1) Whether by the notification dated 2-9-1942 the area in which the premises in dispute declared under the territory of the Nagar Palika Parishad Haldwani Kathgodam ( appellant) can be ignored?. (2) Whether on the basis of notification dated 2-9- 1942 the respondents 2 and 3 can not be levied the taxes by the appellant while the other houses nearby area of the premises in dispute ( of the respondent No.2 and 3) are paying the taxes to the appellant?. (3) Whether the learned court below has decided the suit without requiring the earlier notification dated 2-9-1942 and has rightly based on the notification dated 6-2-1956 while allowing the appeal of the respondent No.2 and 3 and directed the appellant not to recover any taxes from the respondents?. 7- Heard learned counsel for the parties and perused the record. 8- The substantial question of law framed at serial no. 1 relates to notification dated 2-9-1942 and it is to be seen as to whether the disputed land has been included in that notification under the territory of the Nagar Palika Parishad Haldwani-Kathgodam or not and whether the notification can could have been ignored by the first appellate court while giving his judgment in appeal. 4 9- Learned counsel for the appellant Nagar Palika Parishad has submitted that the house of respondent Nos. 2 and 3 come under the Municipal Limits as it would be clear from notification dated 2-9-42. In support of his submission he has drawn my attention towards the sketch map paper No.53, annexed with the appeal and submitted that the description of the boundaries has been shown in the map with yellow colour. 10- The learned counsel for the respondents, on the other hand, has submitted that by the notification dated 2-9-1942 the disputed land was not included in the Municipal limits whereas the said land is situated in separate revenue village Ranibagh, Patti Chakhata Pargana and Tehsil Nainital. The map filed at the stage of second appeal has no sanctity as the same has not been filed before the trial court or at the stage of first appeal and the map has not been got proved. 11- From perusal of notification dated 2-9-1942 it reveals that disputed land has not been included within the boundary of Nagar Palika Haldwani-Kathgodam. There is no mention of revenue village Ranibagh in it. The disputed plots and the house situated over it has also not been shown in the said notification of the year 1942. The Municipal boundaries given in the above notification have clear mention of the other villages, shops and Dharmshalas, shown therein, which were included in the Nagar Palika. Therefore, ignorance of the said notification in the judgment and decree passed by first appellant court has no relevance. 12- To prove their case the respondents filed documentary evidence. Paper No. 9-C/1 reveals that the plaintiffs are recorded owners of plots in dispute within 5 revenue village Ranibagh. Paper No. 11-C/1 is the copy of Gazette Notification which shows that only Kathgodam area has been included in Nagar Palika, and the boundary starts from “Kanela rivulet bridge to provincial road Sitalahaat rivulet bridge, from there downwards to Haat rivulet and upto Gola river and from there via western bank of Gola river upwards upto western side of Kamela rivulet”. Paper No. 12-C/1 and 2 voter list shows that the names of plaintiffs have been entered at serial No. 839 to 844 within village Ranibagh. The plaintiffs also filed paper No. 17-C/4 report of Patti Patwari Chopara according to this report Khasra No. 420 is barren land and Khasra No. 615 is entered in the name of Ganga Prasad Arya as joint owner. Paper No. 13- C/1 to 13-C/16 is the copy of judgment in O.S. No. 129/97, Usha Rani Vs. District Magistrate in which it has been directed that until the defendants do not make arrangement of cleaning etc of the hotels they cannot realize the tax in this regard. The important point to be noted here is that the defendants inspite of sufficient opportunities did not contest the suit before the trial court and the facts stated by the plaintiffs remained unrebutted. 13- So far as the sketch-map paper No. 53 with this appeal filed by the Nagar Palika /appellant at the stage of second appeal is concerned, it has not been brought on record before the first appellate court and further it shows that it was prepared by Nagar Palika authorities itself and it is not decipherable as to whether the said map is the extract of some other sanctioned map of Nagar Palika or not, as the same has not been proved in evidence. Hence, the said map cannot be relied upon. 6 4- For the reasons recorded above it is held that the notification dated 2-9-1942 has not mention about inclusion of disputed land within the Nagar Palika limits, hence the ignorance of the said notification by the first appellate court has no relevance. The substantial question framed at serial No.1 is decided accordingly. 15- As regards the substantial question nos.2 and 3, in view of discussion made above, it is quite clear that the defendants/appellants have failed to establish that the disputed house and land of the plaintiffs has been included within the limits of Nagar Palika Haldwani- Kathgodam, as in the notifications dated 2-9-1942 and 6-2-1956, there is no specific mention of disputed plot numbers and the revenue village Ranibagh, therefore, the tax cannot be levied upon the plaintiffs/respondents, until there is mention of inclusion of their land within the limits of Nagar Palika. The first appellate court has rightly decreed the suit of the plaintiff and issued direction in this regard restraining the defendants/appellants from realizing tax from the plaintiffs/respondents until mention of specific plot numbers etc in the notification regarding inclusion of the said land within the limits of Nagar Palika Parishad Haldwani-Kathgodam. The substantial question mentioned at serial No.2 and 3, are decided accordingly in favour of the plaintiffs/respondents and against the defendants/appellants. 16- In view of finding given on substantial questions framed in this appeal, I do not find any infirmity and illegality in the impugned judgment and decreed passed by the first appellate court and the appeal is liable to be dismissed. 7 17- Accordingly, the appeal is dismissed. The impugned judgment and decree dated 14-6-2004 passed by first appellate court is confirmed. Cost on the parties. 18- The interim order, if any, shall stand vacated. ( B.C. Kandpal, J.) ISB 8