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GAUHATI HIGH COURT
P.C.Phukan, J.
Ingudam Lukhoi Singh -Appellant
Versus
Ingudam Tomba Singh and Ors. -Respondent
Second Appeal No. 3 of 1992
Decided On : 25-05-1999
MANIPUR MUNICIPALITIES ACT, 1976 - SECTION 196 - NOTICE TO MUNICIPALITY - SUIT AGAINST MUNICIPALITY - MAINTAINABILITY - NOTICE UNDER SECTION 196 IS REQUIRED TO BE GIVEN FOR THE BENEFIT OF THE MUNICIPALITY AND NOT FOR THE BENEFIT OF ANY OTHER DEFENDANTS.
Fact of the Case:
The plaintiff filed a suit claiming that he is entitled to the share of the shop, his brother late Chaoba Singh's sons defendant Nos. 1 to 6 are entitled to 1/4th share and his sisters defendant Nos 7 and 8 are entitled to 1/4th share each. The plaintiff also prayed for partition of the shop among them. The defendant Nos 1 and 4 contested the suit by filing a written statement. According to them late Thangong Singh possessed the shop, and after his death late Chaoba Singh alone has been in possession thereof. Chaoba Singh was not a lessee, but was merely a licensee. After his death, his son defendant No.l and his daughter defendant No.4 have been possessing the shop. The plaintiff is not entitled to any share thereof. The defendant Nos 1 and 4 further have contended that the shop in question is not heritable and hence there is no question of its partition and that since the plaintiff is questioning the Imphal Municipality's act of recording the name of the late Chaoba Singh only in respect of the shop, the suit is barred for want of notice under section 196 of the Manipur Municipalities Act, 1976.
Finding of the Court:
The court held that the suit was not maintainable for want of notice to the Imphal Municipality under section 196 of the Manipur Municipalities Act, 1976, and hence this substantial question of law formulated by this Court has to be answered in the negative. Although in the plaint it was prayed that the order dated 15.7.80 in Transfer Case No. 9 of 1980 recording the name of only Chaoba Singh in place of Thangong Singh in Imphal Municipal null and void, this was not pressed in the trial, no issue was framed in this regard, no relief was claimed against Imphal Municipality while decreeing the plaintiff's suit. In fact, in the plaint also Imphal Municipality has been made only a proforma defendant.
Issues: Whether the suit was not maintainable for want of notice to the Municipality under Section 196 of Municipalities Act ?
Ratio Decidendi: The court held that a notice under section 196 of the Manipur Municipalities Act, 1976 is required to be given for the benefit of the Municipality (proforma defendant No. 9 Imphal Municipality) and not for the benefit of any other defendants. Imphal Municipality, however, neither in the trial Court, nor in the first appellate Court and also not in this Court has raised any objection that the suit was not maintainable for want of notice on it under section 196 of the Act.
Final Decision: The court dismissed the second appeal and confirmed the impugned judgment and decree passed by the first appellate Court.
2. This second appeal is directed against the judgment and decree dated 19.6.92 passed by the learned Additional District Judge, Manipur East, in the First Appeal No. 19/89/6/89. Learned Additional District Judge decreed the Original Suit No. 16 of 1987 and set aside the judgment and decree dated 24.7.89 passed by the learned Munsiff at Imphal dismissing the said suit.
3. The case of the plaintiff (respondent No. 1 in this second appeal) in brief is that his father Thangong Singh died about 15 years ago leaving him, his brother Chaoba Singh (father of defendant Nos 1 to 6) and his two sisters respondent Nos 7 and 8. Chaoba Singh died in. 1986. Late Thangong Singh was a lessee in respect of Imphal Municipality Shop No. 2B. After his death, the plaintiff,-Chaoba Singh and defendant Nos 7 and 8 jointly inherited the said shop without partition of their respective shares. After the death of Chaoba Singh, the plaintiff and Chaoba Singh's son defendant No. 1 jointly possessed the said shop. On 30.5.85 the defendant No.l asked the plaintiff not to enter the shop. On 2.6.87 the plaintiff came to know that the defendant No.l's father late Chaoba Singh during his life time got only his name surreptitiously recorded in place of late Thangong Singh in respect of the said shop in Municipal records vide Transfer Case No. 9 of 1980 dated 15.7.80 falsely claiming himself to be the sole heir of late Thangong Singh without knowledge of the plaintiff. Plaintiff then filed the above suit claiming that he is entitled to the share of the shop, his brother late Chaoba Singh's sons defendant Nos. 1 to 6 are entitled to 1/4th share and his sisters defendant Nos 7 and 8 are entitled to 1/4th share each. The plaintiff also prayed for partition of the shop among them.
4. The pro-defendant No. 9 Executive Officer, Imphal Municipality, did not contest. The defendant Nos. 7 and 8 supported the plaintiff's case. The defendant Nos. 2, 3 and 5 did not file any written statement. Only defendant Nos. 1 and 4 contested the suit by filing a written statement. According to them late Thangong Singh possessed the shop, and after his death late Chaoba Singh alone has been in possession thereof. Chaoba Singh was not a lessee, but was merely a licensee. After his death, his son defendant No.l and his daughter defendant No.4 have been possessing the shop. The plaintiff is not entitled to any share thereof. The defendant Nos 1 and 4 further have contended that the shop in question is not heritable and hence there is no question of its partition and that since the plaintiff is questioning the Imphal Municipality's act of recording the name of the late Chaoba Singh only in respect of the shop, the suit is barred for want of notice under section 196 of the Manipur Municipalities Act, 1976. On the pleadings of h the parties, the following issues were framed :
1. Whether the plaintiff and the defendant Nos. 1 to 8 are the only legal heirs of late Ingudam Thangong Singh ?
2. Whether the defendant Nos 2, 3,5 and 6 are the daughters of late Ingudam Chaoba Singh?
3. Whether the suit land is heritable one ?
4. Whether the plaintiff and defendant No. 1 jointly possessed the suit land after the death of Ingudam Chaoba Singh ?
5. Is there any defect of parties in the present suit ?
6. Whether the suit is barred by limitation?
7. Whether the suit is not maintainable for want of notice to the defendant No.9 for filing suit against him?
8. Is there any cause of action to institute the present suit ?
9. Whether the plaintiff is entitled to the relief's claimed? If so to what extent ?
5. On consideration of the evidence of the plaintiff, his two witnesses PWs. 2 and 3, a certificate Ext Al (1) from the Imphal Municipality that late Tha
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