Point of Law: Family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division.

JUDGMENT :

1. This Civil Writ Petition has been preferred claiming for the following reliefs:-

“It is, therefore, most respectfully prayed on behalf of petitioner that the writ petition may kindly be allowed and:-

a/-By an appropriate writ, order or directions in the nature of certiorari, the impugned Order dated 01.03.2014 (Annex.4) passed by the learned Additional Civil Judge (Jr. Div.), Bhilwara in Civil Original Case No. 21/2009 may kindly be quashed and set-aside.

I/A-Further by an appropriate writ, order or direction, the Hon’ble Court may please to pass an appropriate order to the trial court to reject the above suit on the aforesaid facts and circumstances of the case and settled position of law.

b/-Pending the petition, if any order is passed or any action is taken against the petition prejudicial to his interest, the same may kindly be quashed and set-aside.

c/-Any other appropriate order or direction, which this Hon’ble Court considers just and proper in the facts and circumstances of this case, may kindly be passed in favour of the petitioner.

d/-Costs of the amended writ petition may kindly be awarded to the petitioner.

2. Brief facts of the case as placed before this Court by the learned counsel for the petitioner are that the respondent-plaintiff preferred a suit for permanent injunction, registered as 18/2001, before the learned Trial Court with regard to property (bunch of shops) situated at Ward No. 27 near Animal Hospital, Bhilwara praying that the Municipal Council, Bhilwara shall not interfere without due process of law in their peaceful possession of the land in question. And that, during the course of trial, an application under Order 7 Rule 14 CPC was preferred by the respondent-plaintiff for taking family settlement as evidence on the record, which came to be allowed by the learned Court below vide the impugned order dated 01.03.2014 (at Annex.4)

3. Learned counsel for the petitioner assails the impugned order on two grounds; that under Section 271 of the Rajasthan Municipalities Act, 1959 as well as under Section 304 of the Rajasthan Municipalities Act, 2009, two months notice is mandatory for filing a suit, and that the family settlement was incorrectly taken on the record by the learned Court below despite the same being an unregistered and unstamped document.

For the sake of brevity, the said Sections are reproduced hereunder:-

271. Suits against Board or Its officers--

(1) No suit shall be instituted against a Board, or against the Chairman, Vice-Chairman, member, officer or servant of a Board or against any person acting under the direction of any of them in respect of an act done or purporting to have been done in its or his official capacity until the expiration of two months next after notice thereof in writing has been in the case of a Board, left at its office and, in the case of the Chairman, Vice-Chairman, member, officer, servant or person, delivered to him or left at his office or place of abode, explicitly stating the cause of action, the nature of the relief sought, the amount of compensation claimed and the name and place of abode of the intending plaintiff, and the plaint shall contain a statement that such notice has been so delivered or left.

(2) No action such as is described in Sub-section (1) shall, unless it is an action for the recovery of immovable property or for a declaration of title, be commenced otherwise than within six months next after the accrual of the cause of action.

(3) Nothing in Sub-section (1) shall be construed to apply to a suit wherein the only relief claimed is an injunction of which the object would be defeated by the giving of the notice or the postponement of the commencement of the suit or proceeding."

304. Suits against Municipality or its officers.-

(1) No suit shall be instituted against a Municipality or against the Chairperson, Vice-Chairperson, member, officer or servant of Municipality or against any person acting under the direction of any of them in