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S.B. Civil Misc. Appeal No.633/2006

Gram Panchayat Banar and another.

vs.

Chuna Ram and others.

Date : 28.7.2006

HON'BLE MR. PRAKASH TATIA, J.

Mr. CR Jhakar, for the appellants.

Mr. BV Thanvi, for the respondents.

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At the request of the learned counsel for the parties,

this appeal is heard finally and decided.

The trial court dismissed the suit of the plaintiffs on

the ground that the plaintiff did not serve the notice

under Section 109 of the Rajasthan Panchayat Act before

filing the suit against the Gram Panchayat and the Sarpanch

of the Gram Panchayat as well as other government officers

for which notice under Section 80 CPC is required. The

first appellate court set aside the judgment and decree of

the trial court rejecting the plaint on the ground that the

action of the Gram Panchayat does not find place in the

First Schedule of the powers of the Gram Panchayat given in

the Panchayat Act and, therefore, where the action of the

Gram Panchayat of raising Sabha Bhawan is within their

jurisdiction or not, is the issue involved and that can be

decided in the suit.

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It is not in dispute that during the pendency of this

litigation, the petitioners/defendants have already

constructed the building. The plaintiff also submitted

application for amendment of the plaint seeking relief of

the removal of building also. In these facts and

circumstances, it appears that the entire action of the

Gram Panchayat is under challenge. There is no reason to

not to follow the procedure prescribed for filing the suit

against the Gram Panchayat and its officers, particularly

in this case, now there remains no urgency. The plaintiff

should follow the procedure before fiing the suit against

the Gram Panchayat.

In view of the above, this appeal is allowed, the order

of the first appellate court dated 14.2.2001 is set aside

and the plaint shall stand rejected for want of notice

under Section 109 of the Panchayat Act.

However, it is made clear that the plaintiff shall have

liberty to file fresh suit after serving notice under

Section 109 of the Panchayat Act and notice under Section

80 CPC to the defendant no.4 – State of Rajasthan.

(PRAKASH TATIA), J.

S.Phophaliya