The court upheld the plaintiff's title against the Municipal Corporation's claim, emphasizing the binding nature of prior findings and the illegality of the notice for unauthorized construction.

JUDGMENT

1. The appellant, Municipal Corporation, Gwalior, has filed this appeal challenging the judgment and decree, dated 14.07.1999 passed by learned 8^th Additional District Judge, Gwalior, in Civil Suit No.14-A of 1992 whereby the suit for declaration of title and permanent injunction filed by respondent no.1 has been decreed.

2. For convenience, the respondent no.1 is referred as plaintiff and appellant is referred as defendant in this judgment. The suit property would mean building/ Farm House constructed over Municipal No.48/993/1, Hem Singh ki Pared, Jambur Khana, Lashkar, Gwalior.

PLAINTIFF’S CASE

3. The case as pleaded by plaintiff in plaint is that the land bearing Survey No.1361 (6 biswa), 1362 (1 bigha 2 biswa), 1363 (15 biswa), 1364 (12 biswa), 1365 (16 biswa), 1366 (12 biswa), 1367 (4 biswa), 1369 (11 biswa) total ad- measuring 4 bigha 18 biswa situated at Hem Singh ki Pared, Mama ka Bazar, Lashkar, Gwalior, was initially owned by one Mahadev son of Narayan Rao. It is pleaded that Mahadev had a decree of title in his favour passed in Case No.148/59 on 9.7.1959. It is further pleaded that Mahadev son of Narayan Rao sold the aforesaid land alongwith Farm House constructed thereon to plaintiff’s elder brother Naresh Kumar vide registered sale deed, dated 30.7.1959. After having purchased the aforesaid land with Farm House, it is pleaded that the plaintiff and his family started residing in the house and cultivating the land.

4. It is further pleaded in the plaint that on dispute having arisen in the family, the plaintiff and his brother Ramesh Chand had earlier filed a Civil Suit No.9-A of

1984 against their elder brother Naresh Kumar which was decided vide judgment, dated 23.09.1987, by the court of First Civil Judge, Class-2, Gwalior wherein the property was declared to be the joint family property and each brother was declared to have 1/3^rd share therein. Thus, the plaintiff claims to be the owner in possession of suit property by virtue to sale deed, dated 30.07.1959. The plaintiff has further pleaded that the suit property is registered in municipal register as House No.993/1, Ward No.48 and the defendant Corporation is recovering Rs.900/- per year as property tax. Further, it is pleaded that the Corporation itself granted permission to construct boundary wall surrounding his plot and also issued a certificate certifying plaintiff’s title over the suit property.

5. It is further pleaded by plaintiff that on account of political rivalry, certain persons in collusion with employees of Municipal Corporation, got the impugned notice, dated 29.08.1992, issued under the seal of Commissioner alleging violation of Section 293 of Municipal Corporation Act (in short ‘Act’) and threatened to demolish the alleged unauthorized construction. It is pleaded that the plaintiff immediately gave reply to the said notice on 10.09.1992 stating that no new construction has been made by him and there is no violation of Section 293 of the Act on his part. He also raised issue of jurisdiction of the officer to have issued the said notice. The plaintiff also served a notice under Section 401 of the Act to defendant Corporation. The employees of defendant Corporation are bent upon to damage his property and, therefore, the present suit for declaration and permanent injunction was filed.

DEFENDANT’S CASE

6. The defendant Corporation denied the plaint allegations by filing written statement. It is the case of Corporation that land bearing Survey No.1361 & 1396 situated at Hem Singh ki Pared, Mama ka Bazar, Lashkar, Gwalior, is not owned and possessed by plaintiff and on the contrary the suit land is the property of Corporation because it is registered as Nazul in column 2 of khasra of samvat 2040. Denying plaintiff’s title, it was pleaded that Mahadev did not have right to sell land to the plaintiff’s brother because it is the Corporation land. It was further pleaded that the cases on which the plaintiff has relied upon are not binding upon it b