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Aabid Khan v/s Municipal Council, Karera & Another.


    First Appeal No. 185 of 2001

    Decided On, 18 July 2018

    At, High Court of Madhya Pradesh Bench at Gwailor

    By, THE HONOURABLE MR. JUSTICE G.S. AHLUWALIA

    For the Appellant: R.P. Rathi, Advocate. For the Respondents: C.R. Roman, Advocate.



Judgment Text

1. This first appeal under Section 96 of Civil Procedure Code has been filed against the judgment and decree dated 25/7/2001 passed by the Additional District Judge, Karera, District Shivpuri in Civil Suit No. 3-A/2000 by which the suit filed by the plaintiff/appellant for declaration of title and permanent injunction has been dismissed.

2. The necessary facts for the disposal of the present appeal in short are that the appellant/plaintiff filed a suit for permanent injunction on the ground that one plot admeasuring 20/26 square feet is situated within the limits of Municipal Council, Karera, District Shivpuri (it shall be referred to as 'disputed land') and the said plot was leased out to the plaintiff by the Municipal Council, Karera, District Shivpuri at monthly rent of Rs.30/-. The plot was leased out to the plaintiff prior to the year 1985 and the plaintiff is regularly making payment of rent to the Municipal Council, Karera from the year 1985.

3. It is submitted that by raising a temporary construction, the plaintiff is carrying on his business even prior to 1985. The plaintiff has also taken electricity connection and is carrying on the business of welding. The Municipal Council, Karera, District Shivpuri issued a notice dated 5/3/1989 under Sections 323, 187 of Municipalities Act requiring the plaintiff to vacate the premises, but when it was informed by the plaintiff that he is in possession of the said plot in the capacity of a tenant, then no action was taken by the Municipal Council, Karera and the rent was enhanced from Rs.30/- to Rs.60/- per month and, thereafter, the plaintiff is regularly making payment of monthly rent of Rs.60/-. Thereafter, the Tehsildar, Karera issued a notice to the plaintiff for his eviction, against which the plaintiff filed a civil suit for permanent injunction which was decreed and it was directed that the plaintiff shall not be dispossessed without following due procedure of law. In that civil suit, the CMO of Municipal Council, Karera, District Shipvuri had appeared as a witness in the capacity of OIC of the State Government and had deposed that the plaintiff is the tenant of the Municipal Council. Thereafter, on 19/11/2011, the defendants issued a notice to the plaintiff requiring him to vacate the premises treating the plaintiff as an encroacher. When the plaintiff filed a reply on 10/12/2014, then another notice was given to the plaintiff to vacate the premises within a period of 3 days, therefore, the plaintiff has a suspicion that without following the due procedure of law, the defendants may evict/dispossess him from the plot in question and, thus, the present suit has been filed for permanent injunction.

4. The defendants filed their written statement and pleaded that the plaintiff, after encroaching upon the land in question, has constructed a 'Tin Shade' and had also constructed 3 to 4 shops on the plot which is situated on the southern side of Jhansi-Shivpuri National Highway. It was further stated that in the year 1985, a small kiosk was kept on the land and the Municipal Council had recovered the rent at the rate of Rs.30/- per month but the same would not create any right or title in favor of the plaintiff. It is further submitted that the construction has been raised without the permission of the defendants. It is further submitted that initially the defendants had given a notice to the plaintiff to vacate the premises, but since the proceeding under Section 248 of Civil Procedure Code was already initiated by the Tehsildar, Karera, therefore, the eviction proceedings were not taken. The fact of enhancement of rent from Rs.30/- to Rs.60/- per month was admitted, however, the relationship of the landlord and the tenant was not accepted. The defendants also denied for want of knowledge about the notice issued by the Tehsildar. It was further pleaded that the judgment and decree passed by the Court below in the previous suit is not binding because the defendants were not the party in that suit. It was further pleaded that the encroachment raised by the plaintiff is required to be removed.

5. The trial Court, after recording the evidence of the witnesses, dismissed the suit filed by the plaintiff/appellant.

6. Challenging the judgment and decree dated 25/7/2001 passed by the Additional District Judge, Karera, District Shivpuri in civil suit No. 3-A/2000, it is submitted by the counsel for the appellants that the judgment dated 24th July, 1996 passed by the Additional District Judge, Pichhore, District Shivpuri in Civil Suit No. 56-A/2992 is binding as the said judgment can be said to be a judgment in rem and not in persona. Even otherwise, it is submitted that the said judgment would be relevant for the purposes of the suit under Section 43 of the Evidence Act.

7. Per contra, it is submitted by the counsel for the defendants that the earlier judgment dated 24th July, 1996 passed in Civil Suit No. 26-A/1992 is neither binding on the respondents nor is relevant for the purposes of the suit. The previous judgment dated 24th July, 1996 was a judgment in persona and not a judgment in rem. It is further submitted that the appellant/plaintiff shall be evicted/dispossessed in accordance with law.

8. Heard the learned counsel for the parties.

9. So far as the contention raised by the counsel for the appellant/plaintiff that the judgment dated 24th July, 1996 passed in Civil Suit No. 26-A/1992 is binding on the parties is concerned, the said submission is misconceived and cannot be accepted, thus rejected.

10. Section 11 of the Civil Procedure Code reads as under:-

'11. Res judicata- No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.'

11. Thus, in order to apply the principle of res judicata, the plaintiff must prove that there was a former suit in which the matter was directly and substantially between the same parties or between the parties under whom they or any of them claim.

12. In the present case, it is undisputed that the Municipal Council, Karera, District Shivpuri was not made a party to Civil Suit No. 26-A/1992, then one of the basic requirement is that the former suit should be between the same parties is not fulfilled. Accordingly, it is held that the judgment and decree dated 24th July, 1996 passed in Civil Suit No. 26-A/1992 would not apply as res judicata.

13. It is next contended by the counsel for the plaintiff that in view of Section 43 of the Evidence Act, the judgment passed in former suit would be relevant for the purposes of this case, as the CMO of the Municipal Council, Karera, District Shivpuri had appeared as an OIC of the State Government and had admitted that the plaintiff/appellant is the tenant of the Municipal Council.

14. The submission made by the counsel for the plaintiff/appellant cannot be accepted.

15. Since the CMO of the Municipal Council was appointed as the OIC, who in fact appeared on behalf of the State Government and he was not representing the Municipal Council, Karera, District Shivpuri and specifically when the Municipal Council, Karera, District Shivpuri was not made a defendant in that suit, therefore, any evidence given by one of its officer in the capacity of the OIC of the State Government would not be binding on the Municipal Council, Karera, District Shivpuri. Even otherwise, as per the provisions of Section 109 of the Municipalities Act and M.P. Municipalities (Transfer of Immovable Property) Rules, 1996, if an immovable property is to be let out, then the same can be done by public auction and it cannot be let out or sold to any person without holding a public auction and if the municipality is of the view that public auction is not in the interest of the municipality, then the permission of the State Government is required to be obtained. Since, in the present case, it is not the case of the plaintiff that he had taken the disputed land on rent/lease in a public auction, therefore, it cannot be said that the plaintiff was the tenant of the defendant/Municipal Council, Karera, District Shivpuri. From the perusal of these receipts which have been marked as Ex.P-3 to P-6, it is clear that the plaintiff had paid rent to the Municipal Council, Karera, District Shivpuri for the kiosk, which is a small shop in a public place. There is nothing on record to show that the appellant had ever paid any rent for the land on which the said kiosk was standing. Thus, it is clear that the plaintiff has failed to prove that the disputed land was ever leased out or let out to the appellant by the Municipal Council, Karera, District Shivpuri at any point of time and, accordingly, the plaintiff has also failed to prove that any construction, which was raised by him on the said land, was done after obtaining due permission from the Municipal Corporation, Karera, District Shivpuri as no document in this regard has been placed on record. Accordingly, this Court is of the considered opinion that the plaintiff has failed to prove that the disputed land was leased out to him at any point of time.

16. It is next contended by the counsel for the appellant/plaintiff that even assuming that the plaintiff was an encroacher on the disputed land, even then he cannot be dispossessed without following due procedure of law.

17. The submission made by the counsel for the appellant/plaintiff is irrelevant in the facts and circumstances of

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the case. 18. In the present case, it is the case of the plaintiff himself that the defendants/respondents have issued a notice to remove the encroachment within a period of 3 days, otherwise, further proceedings shall be taken as per the law. It is not the case of the plaintiff that the defendants are trying to dispossess him without following the due procedure of law. Under these circumstances, this Court is of the considered opinion that the plaintiff has miserably failed in establishing his claim and, accordingly, the judgment and decree dated 25/7/2000 passed by the Additional District Judge, Karera, District Shivpuri in Civil Suit No. 3-A/2000 is hereby affirmed. 19. This Court, by orders dated 13/8/2001 and 12/12/2006, had directed the parties to maintain the status quo till the pendency of this appeal. 20. The interim orders dated 13/8/2001 and 12/12/2006 are hereby vacated. 21. The Office is directed to draw the decree. 22. The parties shall bear on their own cost. 23. The appeal fails and is hereby dismissed.
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