1. This second appeal under section 100 of CPC assails the concurrent findings of both the Courts below whereby the suit filed for declaration of ancestral title and possession over the suit land with permanent injunction restraining the defendants from interfering with the easementary rights of the plaintiff, has been allowed and the appeal filed against which has been rejected.

2. The sole contention raised by the counsel for the Municipal Council, Mihona, District Bhind is that the trial Court and the first appellate Court failed to see that the suit was barred by section 319 (1) of Municipalities Act, 1961 (Act of 1961 for brevity) on account of failure of the plaintiff to give notice of two months as provided therein. In support of his contention learned counsel for appellants Municipal Council has relied upon the decision of Division Bench in the case of Municipality Vs. Gas Authority of India Limited and other 2006(1) JLJ 42 = 2006(1) MPHT 276.

3. Per contra learned counsel for respondent/ plaintiff has contended that the bar contained in section 319(1) of the Act, 1961 cannot come in the way of plaintiff to maintain his suit as the said bar comes into operation only when the suit in question is for something done or purported to be done under the Act of 1961 and not otherwise. The further contention of the learned counsel for the plaintiff/ respondent herein is that suit in question was saved by the provision of sub section (3) of section 319 of the Act of 1961 from the rigor of bar contained in section 319(1) of the Act of 1961. In support of this contention reliance has been placed on the decisions in the cases of Nagar Palika Parishad, Mandsaur Vs. Sarva Daman 1973 JLJ SN. 13, Buddiprakash Sharma Vs. Nagar Palika, Joura 1991 MPLJ, 933 & Hari Ram Vs. Nagar Palika Prashashak 2001(4) MPHT 269.

4. Bare perusal of the provision of section 319(1) of the Act of 1961 makes it clear that the prohibitive implication contained therein can be invoked only when the suit in question seeks a remedy arising from the Act of 1961.

5. In the instant case prayer in the plaint indicates that the suit was instituted seeking a decree for declaration of ownership and possession of property and for permanent injunction against the defendants.

6. The Act of 1961 does not contemplate the Municipal Council or any officer or servant of the Council to grant or refuse the prayer as sought in the plaint by the plaintiff. Thus the grant or refusal of the declaration of title, possession and permanent injunction in respect of a particular land is not contemplated as an act which can be done or purported to be done under the Act of 1961 by the council or any of the authority constituted under the Act.

7. It is further relevant to consider the submission of the counsel of the plaintiff/ respondent herein regarding the connotation of sub section 319 of the Act of 1961.

8. Sub-section (3) of section 319 is an exception to the extent of excluding the bar in section 319(1) in cases of suits instituted under section 54 of the Specific Relief Act, 1877 which is equivalent to section 38 of the Specific Relief Act, 1963 (Act of 1963 for brevity). section 38 of the Act of 1963 pertains to suit for perpetual injunction.

9. The suit of the plaintiff was for declaration of title and perpetual injunction which falls squarely within the type of suit contemplated under section 38 for declaratory decree. Thus the nature of suit of the plaintiff being inter alia of perpetual injunction absolved the plaintiff from the requirement of section 319(1) of the Act, 1961 and therefore, the bar contained in section 319(1) has no application.

10. The statutory provision contained in section 319(1) of the Act, 1961 being crystal clear and in favour of the plaintiff/respondent herein, this Court deems it appropriate to consider the Division Bench Decision in the case of Municipality Vs. Gas Authority of India Limited and other 2006(1) JLJ 42 = 2006(1) MPHT 276 on which heavy relian