A suit against a municipality for declaration and injunction requires a notice under Section 271 of the Rajasthan Municipalities Act, 1959, and the exception for injunction suits under sub-section (3) does not apply to such suits.

1. - This second appeal is directed against the Judgment and Decree dated 03/09/2009 passed by the learned District Judge Jaipur District, Jaipur (hereinafter referred to as 'the learned appellate Court') in Civil Regular Appeal No. 61/2008 whereby, the learned appellate Court has confirmed the judgment and decree dated 31/05/2008 passed by the Additional Civil Judge (Junior Division) No. 2, Jaipur District, Jaipur (hereinafter referred to as 'the learned trial court') in civil suit No. 125/2005, dismissing the suit of plaintiff-appellant for declaration and mandatory injunction.

2. The facts in brief, giving rise to the this second appeal are that the appellant-plaintiff filed a civil suit for declaration and permanent injunction against the defendant-respondent seeking relief for declaring him as the owner of the disputed property on the basis of adverse possession. It is prayed that defendant be directed to regularise the disputed property in his favour. He also prayed for permanent injunction directing respondent-defendant not to disposses him from the disputed property and not to demolish the construction raised by him on the disputed property and also to restrain the defendant from interfering with the use and occupation of the disputed property. It is also stated in the plaint that plaintiff is in possession since last 80 years over the disputed property.

3. The defendant-respondent resisted the suit by filing written statement wherein, the defendant denied the facts mentioned in the plaint and stated that the description and site plan of the disputed property is wrong. The defendant regularised the Kham Makan of the plaintiff considering his possession prior to 1968 but in the Board Meeting dated 30/09/2004, the regularisation was not confirmed. Consequently, money which was taken from the plaintiff, was returned to him and the order of regularisation was set aside. In view of this, the plaintiff has no right to get declaration in his favour on the basis of adverse possession. It is also stated that prior to filing of the suit, notice under Section 271 of the Rajasthan Municipalities Act, 1959 (for short 'the Act of 1959) was not served by the plaintiff to the defendant therefore, the suit is not maintainable for want of required notice.

4. The learned trial Court vide its judgment and decree dated 31/05/2008 dismissed the suit filed by the plaintiff-appellant against which an appeal was filed by the plaintiff-appellant which was also dismissed by the learned appellate Court by the impugned judgment and decree. Hence, this second appeal.

5. Heard the learned counsel for the parties and perused the material on record.

6. It is submitted by the learned counsel for the plaintiff-appellant that both the Courts below have committed error of law in dismissing the suit on the ground that before filing the suit the plaintiff-appellant had not served a notice under Section 271 of the Act of 1959. Both the Courts below have committed error of law in not deciding the suit on merits. The findings of both the courts below as to the requirement of notice under Section 271 of the Act of 1959 are perverse and arbitrary and bad in law. It is submitted by the learned counsel for the plaintiff-appellant that serving notice under Section 271 of the Act of 1959 is a mere procedural requirement and the same does not go to the root of the jurisdiction. The objection with regard to the notice under Section 271 of the Act can be waived. He has placed reliance on Suresh Chandra & Dhan Raj v. Shri Hanuman Prasad 2006 (4) WLC (Raj.) 452.

7. On the other hand, learned counsel for the respondent has supported the judgments and decrees passed by the Courts below.

8. I have considered rival submissions made by the learned counsel for the parties and perused the material on record minutely and carefully.

9. It is beneficial to reproduce Section 271 of the Act of 1959:

"271. Suits against board or its officers-(1) No suit shall be instituted against a