Back
Allahbad High Court
V.G.OAK,D.D.SETH
Municipal Board, Meerut - Appellant
Versus
Bir Singh - Respondent
Decided On : 11/25/1964
OWNERSHIP OF MANURE - MUNICIPAL BOARD - RIGHT TO REMOVE - EXECUTION PROCEEDINGS - RES JUDICATA - ESTOPPEL - INJUNCTION - SPECIFIC RELIEF ACT, S. 56.
Fact of the Case:
The Municipal Board of Meerut (Board) occupied a plot of land as Amjad's lessee or licensee. The Board used to deposit night-soil on this plot, which got converted into manure. In 1918, respondents filed a suit for Board's ejectment from the plot, which was decreed in appeal. The respondents obtained possession over the plot through Court on 2-4-1947. At that time, some manure was lying on the plot. The Board moved a series of applications to enable it to recover the manure. On one of those applications, the Munsif passed an order permitting the Board to remove the manure in 20 days. When the matter went before the Civil Judge of Meerut in appeal, he permitted the Board to remove the manure on condition that it should keep the price in deposit till further orders. The respondents filed an Execution Second Appeal before the High Court, which was allowed in April 1950. Orders of the lower Courts were set aside and the Board's objection was dismissed. On the basis of this Court's order dated 24-4-1950, the respondents moved an application for restitution under Ss. 144 and 151, Civil P.C. The respondents requested the Court for payment of the sum of Rs. 35,000 as compensation, damages and price of the manure removed by the Board. The application for restitution was opposed by the Board, but was allowed by the City Munsif of Meerut on 7-8-1951. The Court directed recovery of Rs. 35,000 from the Board. The Board instituted two separate proceedings to avoid the order for restitution dated 7-8-1951. Firstly, it filed a Miscellaneous Appeal against that order. Secondly, the Board filed a regular suit for an injunction restraining the respondents from realizing from the Board the sum of Rs. 35,000, as directed by the City Munsif, Meerut. The Board's case is that the manure in question belonged to it.
Finding of the Court:
1. The manure in question belonged to the Board before it reached the respondents' plot. 2. The Board's ownership of the manure remained unaffected by the execution proceedings of 2-4-1947. 3. The Board is the owner of the sale proceeds of the manure. 4. The Board should not be compelled to part with the money. 5. The present suit is not barred by S. 47, Civil P.C., Section 144 Civil P.C., S. 56 Specific Relief Act or by the general principal of res judicata. 6. An injunction should be granted in plaintiff's favour as prayed.
Issues: 1. Whether the manure in question belonged to the Board before it reached the respondents' plot? 2. Whether the Board's ownership of the manure remained unaffected by the execution proceedings of 2-4-1947? 3. Whether the Board is the owner of the sale proceeds of the manure? 4. Whether the Board should be compelled to part with the money? 5. Whether the present suit is barred by S. 47, Civil P.C., Section 144 Civil P.C., S. 56 Specific Relief Act or by the general principal of res judicata? 6. Whether an injunction should be granted in plaintiff's favour as prayed?
Ratio Decidendi: 1. The practice appears to be that municipal sweepers collect night soil from latrines of private houses. The night soil so collected is deposited at some convenient place. The question arises whether the right soil collected by municipal sweepers belongs to the Municipal Board. 2. In view of S. 116, U.P. Municipalities Act, it must be held that night son collected by Municipal sweepers from various places vested in the Board. 3. Clause (h) of S. 108, Transfer of Property Act is intended to be a complete statement of the tenant's right as regards removal of structures. It the right given by cl. (h) is exhausted, the tenant cannot have a further right to remove the fixtures. It the tenant does not remove them within a reasonable time after termination of the tenancy, he has no right to remove them. 4. The principle to be deduced from these decisions is this. If the judgment-debtor's grievance relates to excessive execution, his remedy is by way of an application under S. 47, Civil P.C. But if the decree-holder's act does not relate to execution, discharge or satisfaction of the decree, but constitutes, a tort, the judgment-debtors' remedy is a regular suit. 5. No doubt Ex. A40 contains an observation to the effect that the Munsif had previously decided that the Board was not entitled to remove the manure. But we have pointed out that, no such point was actually decided by the Munsif by his orders (Exs. A-29 and A-31). Those orders were merely to the effect that the Court was refusing to help the Board to recover the manure. Neither the Munsif nor the High Court decided the question of ownership of the manure. 6. The condition regarding the competency of the former Court to try the subsequent suit is one of the limitations engrafted on the general rule of res judicata by S. 11 of the Code and has application to suits alone. When a plea of res judicata is founded on general principles of law, all that is necessary to establish is that the Court that heard and decided the former case was a Court of competent jurisdiction. 7. The present plaintiff is not seeking to obtain any restitution. On the contrary, the plaintiff is trying to prevent restitution in favour of the defendants. The present plaintiff could not obtain any relief by filing an application under S. 144, Civil P.C. 8. The order for restitution dated 7-8-1951 is proper. On the other hand the Board has proved that the manure in dispute belonged to it. The Board's ownership remained unaffected by the execution proceedings of 2-4-1947. It follows that the Board is the owner of the sate proceeds of the manure. The Board should not be compelled to part with the money.
Final Decision: Appeal allowed. First Appeal No. 304 of 1956 is allowed. We grant a perpetual injunction restraining the defendants from realising or compelling the plaintiff to pay the sum of Rs. 35,000 or any other amount representing the whole or any part of the price of the right soil belonging to the plaintiff and disposed of in the year 1947. Parties shall bear their own costs in all the Courts in the two connected proceedings (proceeding for restitution and the regular suit).
OAK, J. :- The question for consideration in these two connected appeals is whether the Municipal Board of Meerut is entitled to retain the price of certain manure, that was stored in the year 1947 on a piece of land at Meerut. In both the appeals the Municipal Board is the appellant; and Bir Singh and three others are the respondents.
2. One Amjad was the owner of the plot, on which the manure in question had been deposited. Bir Singh and other respondents are Ajmad's successors-in-interest. For many years the Municipal Board of Meerut (hereafter referred to as the Board) occupied the plot as Amjad's lessee or licensee. The Board used to deposit night-soil on this plot, the night-soil got converted into manure. In 1918 respondents filed a suit in the Court of Munsif, Meerut for Board's ejectment from the plot. That suit was dismissed by the trial Court, but decreed in appeal by the Judge, Small Cause Court, Meerut. The decree for possession was put into execution by the respondents in March 1947. The respondents obtained possession over the plot through Court on 2-4-1947.
3. At that time some manure was lying on the plot. The Board moved a series of applications to enable it to recover the manure. On one of those applications, the Munsif passed an order permitting the Board to remove the manure in 20 days. When the matter went before the Civil Judge of Meerut in appeal, he permitted the Board to remove the manure on condition that it should keep the price in deposit till further orders. The present respondents filed an Execution Second Appeal before this Court. That Second Appeal was allowed by this Court in April 1950. Orders of the lower Courts were set aside and the Board's objection was dismissed.
4. On the basis of this Court's order dated 24-4-1950, the respondents moved an application for restitution under Ss. 144 and 151, Civil P.C. The respondents requested the Court for payment of the sum of Rs. 35,000 as compensation, damages and price of the manure removed by the Board. The application for restitution was opposed by the Board, but was allowed by the City Munsif of Meerut on 7-8-1951. The Court directed recovery of Rs. 35,000 from the Board.
5. The Board instituted two separate proceedings to avoid the order for restitution dated 7-8-1951, Firstly, it filed a Miscellaneous Appeal against that order. Secondly, the Board filed a regular suit for an injunction restraining the respondents from realizing from the Board the sum of Rs. 35,000, as directed by the City Munsif, Meerut. The Board's case is that the manure in question belonged to it. Defendant No. 4 happened to be the Executive Officer of the Board in 1941, and again from 1347 to 1951. The Board was prevented from knowing anything about the execution proceedings. The Board had no knowledge about delivery of possession on 2-4-1947, for some time. The decision of the High Court dated 24-4-1950 was based on technical ground, and was not a decision on merits. The Board's claim was resisted by the defendants. It was pleaded that the suit is barred under Ss. 47 and 144, Civil P.C., and by S. 56, Specific Relief Act. Those connected proceedings were decided by the learned First Civil Judge of Meerut in favour of the defendants, and against the Board. The Court held that the order passed by the trial Court for restitution was proper. It was further held that the regular suit was barred by S. 47, Civil P.C., and S. 58, Specific Relief Act. By two separate judgments dated 25-4-1950, the learned Civil fudge dismissed the regular suit and the miscellaneous appeal.
6. The present appeals before us are directed against these two decisions of the learned First Civil Judge, Meerut dated 25-4-1956. First Appeal No. 304 of 1956 arises out of the regular suit. Second Appeal No. 1031 of 1956 is directed against the decision dismissing the Miscellaneous Appeal No. 140 of 1951. Since most of the questions of fact and law are common, the two connected appeals can be conveniently
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
