1. This appeal filed under Section 100 of the Code of Civil Procedure, 1908 takes exception to the judgment dated 2-03-2003 in Regular Civil Appeal No.215/1999 thereby partly modifying the decree passed by the trial Court in Regular Civil Suit No.122/1996 and directing the appellants herein to pay to the respondent a sum of Rs.70,000/with 6% interest thereon.

2. The respondent is the original plaintiff who claims to have purchased the plot no.71 within the limits of Gram Panchayat Drugwada on 16-12-1985. The plaintiff also claims to have purchased plot no.72. These plots were beyond the limits of appellant – Municipal Council. On account of extension of the territorial limits of the Municipal Council, these plots came within its jurisdiction. The Municipal Council issued a notice to the plaintiff on 1-6-1995 in which it was informed that these plots were reserved for a Primary School and as the plaintiff had put barbed wire fencing without permission of the Municipal Council, the same should be removed. Prior to receipt of this notice, the Municipal Council illegally removed the fencing. Hence, after issuing notice under provisions of Section 304 of the Maharashtra Municipal Council Nagar Panchayats and Industrial Township Act, 1965 (for short, the said Act), the plaintiff filed suit for recovery of Rs.70,000/being the loss caused by the Municipal Council on account of its illegal action.

3. In the written statement filed by the defendant, it was pleaded that the Plot Nos.71 & 72 vested with the Municipal Council and were reserved for public use. It was denied that the Municipal Council committed any illegal act of removing the fencing. Reference was made to a notice dated 26-5-1995 calling upon the plaintiff to remove the fencing within three days and as the same was not done, the Municipal Council had taken action. It was further pleaded that the suit as filed was not within limitation as prescribed by the said Act.

4. The trial Court framed various issues after which the parties led evidence. It was held that the defendant in a wrongful manner removed the barbed wire fencing and, therefore, the plaintiff was entitled for damages. The trial Court decreed the suit and directed payment of aforesaid amount with future interest @18% per annum. In the appeal preferred by the Municipal Council, the appellate Court reaffirmed the aforesaid findings. It, however, reduced the rate of future interest @6% per annum while partly allowing the appeal.

5. The following substantial questions of law were framed while admitting the appeal:

(1) Whether the suit filed by the plaintiff is maintainable when there is a bar to file the suit against the Municipal Council under Section 303 of the Maharashtra Municipalities Act, 1965?

(2) Whether the judgment and decree of both the Courts are sustainable which is passed without considering important admission of the plaintiff which goes to the root of the case and whether the Courts below are justified in passing the judgments and decree in favour of the plaintiff when there is evidence contrary to the pleadings by the plaintiff?

6. After hearing the learned Counsel for the parties, on 25-6-2017 substantial question No.3 was framed under provisions of Section 100 (5) of the Code and hearing was adjourned so as to grant an opportunity to the respondent to answer the aforesaid substantial question. Question No.3 reads thus :

The plaintiff having issued notice under Section 304 of the Maharashtra Municipal Councils, Nagar Panchayats & Industrial Townships Act, 1965 on 1st July, 1995 (Exh.52), whether the suit filed on 6th April, 1996 was within limitation prescribed by Section 304(1) (a) of the said Act?

The learned Counsel for the parties were thereafter heard on all the substantial questions of law.

7. Shri A. B. Patil, learned Counsel for the appellant submitted that both the Courts erred in coming to the conclusion that the action of the Municipal Council in removing the barbed wire fencing was illeg