IN THE HIGH COURT OF JUDICATURE AT PATNA S.A. No.6 of 2006 ----- Lal Babu Prasad, son of Late Laxmi Prasad by profession cultivation and business of Village-Siwan Sonar Toli Shanti But Briksh, P.S. Siwan Town, P.O. Siwan, Pargana-Bara, District- Siwan. -- Defendant no.2- Appellant-Appellant. Versus 1. Durga Narayan Prasad, son of Late Sukhdeo Prasad. 2. Chandrawati Devi, wife of Satya Narayan Prasad (deceased). 2(a)Rajiv Kumar 2(b)Ranjan Kumar Both sons of Late Satya Narayan Prasad. 3. Prabhu Narayan Prasad, son of Late Sukhdeo Prasad. 4. Rajesh Narayan Prasad, son of Late Sukhdeo Prasad Nos. 3 & 4 both by profession cultivator of Village Kasawan Siwan Mihiatoli, P.S. Siwan Town, P.O. Siwan, District-Siwan, Pargana Bara. 5. Chunmun Devi, wife of Binay Kumar, daughter of Late Sukhdeo Prasad, Mohalla- Pankha Toli, P.S Kaji Mohammadpur, District-Muzaffarpur, Father’s Place Mehia Kumhar Toli, P.S. & P.O and District-Siwan. -- Plaintiffs-Respondents 1st Set -Respodnents 1st Set. 6. Executive Officer, Municipal Board, Siwan. -- Defendant 2nd Party- Respondent- Respondent 2nd Set. ---- For the appellant : None. For respondents No.1 to 5 : Mr. T.N.Maiteen, Senior Advocate Mr.Umeshnand Pandit, Advocate. yughFor respondent no.6 : None . ---- 10. 12.05.2009 Yesterday this second appeal was heard in part. Today, learned counsel for the appellant is absent, whereas learned counsel for the respondents is present, hence it transpires that learned counsel for the appellant has nothing more to say. 2. This second appeal has been filed by defendant no.2- appellant-appellant challenging the judgments and decree of both the learned courts below. - 2 - 3. The matter arises out of Title Suit no.318 of 1993 which was filed by plaintiffs-respondents-respondents 1st Set challenging order dated 10.09.1993 passed in B.P.Case No.40-B/93-1994 by the Executive Officer, Municipal Board, Siwan (Defendant 2nd Party) declaring the disputed land as ‘way’ and restraining the plaintiffs from dealing with sale or making any construction over the same. 4. The said suit was decreed on contest by the learned Munsif 1, Siwan vide his judgment and decree dated 23.09.2000. Against the aforesaid judgment and decree of the trial court, defendant-appellant filed Title Appeal No.77 of 2000 which was dismissed on contest with cost by the learned Additional District Judge-cum-Fast Tract Court IV, Siwan vide his judgment and decree dated 08.09.2005. 5. From the arguments as well as from the materials on record, it is quite apparent that both the learned courts below after considering the pleadings and evidence of the parties have come to the specific conclusion that defendant-appellant had failed to establish that the disputed land was a ‘way’ and he had got easementary right in respect thereof. It was also found that the suit land belonged to the plaintiff which was in his exclusive possession as owner thereof and no easementary right had accrued to the defendant-appellant. 6. The learned courts below after full consideration of the pleadings and evidence of the parties as well as the provisions of law have come to a definite finding that the Executive Officer, - 3 - Municipality,Siwan had gone beyond his jurisdiction to decide the dispute of easementary right as it had no jurisdiction to decide either the question of title or the question of easement and hence his order was absolutely and clearly illegal, null and void. 7. The learned courts below have also concurrently found that Section 34 of the Specific Relief Act was not exhaustive and the relief claimed in the suit could be granted by the court in view of Section 9 read with Order VII Rule 7 of the Code of Civil Procedure Code. It was also found that the relief sought by the plaintiff was a substantial relief and had immediate coercive effect and fell outside the purview of Section 34 of the said Act and was governed by the general provisions of the Civil Procedure Code as mentioned above. 8. So far as the provision of Section 80 of the Civil Procedure Code was concerned, learned courts below rightly held that as per the decision of this Court reported in case of Dr. Mahendra Prasad and others Vs. The Administrator Patna Corporation, reported in 1954 B.L.J.R 499, it is quite apparent that the person put incharge of the Municipality under Section 386 of the Bihar and Orissa Municipal Act, 1922 cannot acquire a status higher than that of the Municipality Commissioner and he is not a public officer within the meaning of Section 80 of the Code of Civil Procedure. 9. Learned courts below had also found that plaintiff had given notice to the Executive Officer for modification of order under challenge (Ext-2/A) and the registry receipt is Ext-2 and the same - 4 - was received by the Special Officer, Siwan Municipality and hence service of notice is admitted. 10. Relying upon a decision of this court in case of Notified Area Committee through the Vice Chairman, Notified Area Committee & anr Vs. Sri Chhatrapal Singh & Anr, reported in 2000(1) B.B.C.J.488, it has been held that from a reading of Section 377 of the Act it is manifest that the said provision provides a protection to the municipality and its officers only in a suit for damages for a tortuous act and not to other suits, including a suit for declaration. Hence, there was no necessity to give notice in this case, although plaintiff had given notice. 11. Considering the aforesaid facts and circumstances of the case, it is quite apparent that both the courts below have arrived at concurrent findings of facts on the basis of the pleadings and evidence of the parties supported by the specific provisions of law and case laws. Thus, this court does not find any illegality in the impugned judgments and decree of the learned courts below, nor does it find any substantial questions of law involved in the instant second appeal, which is, accordingly, dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. Sunil (S. N. Hussain, J.)