10 Aug 2121

It is claimed that the drain served as the western boundary of all properties in the area and that the person is attempting to change that position and is thus entitled to a restraint, which is not barred by law - Supreme Court of India

Case : Ratul Mahanta v. Nirmalendu Saha Civil Appeal No. 4627 of 2021 (Arising out of SLP (Civil) No. 24735 of 2014)

Court : Supreme Court of India

Bench : Justice Hemant Gupta and Justice A.S. Bopanna

Decided on : 10 Aug 2121

The Relevant Statutes

Section 96 (1), 9 and Order 43 Rule 1, Order VII Rule 11(d) of the Civil Procedure Code, 1908

Section 341, 322, 246, 247, 248, 341, 245(5), 438 of the Guwahati Municipal Corporation Act, 1971

 Section 85, 6, 7, 83 of the Wakf Act, 1995

Brief Facts & Procedural History

1. The appellant filed title suit No.334 of 2011 against the respondent herein in the Court of learned Munsif No.2, Kamrup Guwahati, seeking a declaration that there is a common public drain on the western boundary of the suit Schedule properties A, B, and C that the plaintiff can utilise. A declaration is also sought to the effect that the defendant cannot stop the public drain on the defendant's Schedule "C" property, which is connected to the plaintiff's land, at any time. In addition, the appellant has requested a permanent order against the defendant to allow water to flow freely in the aforementioned drain up to the main GMC drain.

2. After appearing, the respondent contested the plaintiff's claim on the merits. In addition, the respondent argued that the civil court lacked jurisdiction to hear the case because of the restrictions of the Guwahati Municipal Corporation Act of 1971. Because the appellant had already requested a temporary injunction in the same matter, the trial judge granted it after careful review, without respect to the jurisdictional argument. The respondent had challenged the injunction order by filing an appeal with the Lower Appellate Court under Section 96 (1) of the Civil Procedure Code, 1908, and Order 43 Rule 1 of the Civil Procedure Code, 1908.

3. In the abovementioned appeal, the respondent, who was also the appellant, argued that the learned Munsif's order was not justifiable because the issue of the suit's maintainability in light of the Guwahati Municipal Corporation Act, 1971's provisions prohibiting civil court jurisdiction was at the heart of the case. It was argued that the same had to be considered and decided before any other relief sought in the claim could be considered. In the abovementioned miscellaneous application No.33/2011, the lower appellate court, through its order, concluded that the learned Munsif should decide the jurisdiction issue first. As a result, the lower appellate court remanded the case without entering into the merits, setting aside the decision in question in the aforementioned appeal to decide the question of jurisdiction before considering any additional relief.

4. The appellant, in this case, filed a revision petition with the Gauhati High Court, claiming to be aggrieved by the aforementioned ruling. While taking into account the opposing arguments, the learned Judge concurred with the lower appellate court's finding that the civil court's jurisdiction to hear the case should be determined at the outset. As a result, the revision petition was dismissed. The parties were allowed to present their arguments in front of the erudite Munsif.

5. By that, the learned Munsif has addressed the issue of jurisdiction and has concluded, by order, that the bar intended by the Guwahati Municipal Corporation Act, 1971 does not apply to the facts presented, given the nature of the remedy sought. As a result, the knowledgeable Munsif has ruled that the civil court has jurisdiction to hear the parties' lawsuit.

6. The respondent, in this case, filed a revision petition with the Gauhati High Court, claiming to be aggrieved by the aforementioned ruling. By his order, the learned Judge has implied that the civil court's authority has been removed and that parties can only seek redress under the Guwahati Municipal Corporation Act, 1971's procedures. In light of this, the revision petition's order was reversed, the suit was dismissed, and the appellant was allowed to air his grievance under the relevant sections of the Guwahati Municipal Corporation Act, 1971, if so advised. As a result, the plaint in the title suit was ordered to be dismissed. As a result, the appellant has filed an appeal with this Court, claiming to be aggrieved by the ruling of the Gauhati High Court.

The Issue(s) of the Case

Whether the impugned order dated 08.04.2014 passed by the Gauhati High Court valid?

The Observations of the Court

1. Honourable Supreme Court of India observed that the relief sought in this case is in the form of declaratory relief in an inter se disagreement between the parties. The statutory authority's consideration is of a summary character, as stipulated under the Guwahati Municipal Corporation Act, 1971. Furthermore, the right of appeal is limited to any notice given by the Commissioner or any action taken or planned to be taken by the Commissioner, effectively limiting the right of appeal to the owner of the drain against whom action is proposed.

2. Honourable Supreme Court of India also observed that the averments in the plaint and the prayer show that the appellant is not trying to create a right over the defendant's drain, nor is there any dispute presented about GMC's drain. But the case as presented is that the appellant's property, Ms Suwola Devi's property, and the defendant's property, which are shown as suit schedule 'A', 'B', and 'C' properties, are contiguous to one another, and on the western side of the property, starting from the appellant's property, there is a drain, which is shown as the boundary, and it facilitates a drainage system. Based on the information that will be presented, such relief will be considered in the litigation. As a result, no statute prohibits such remedies.

3. Honourable Supreme Court of India also observed that it is evident that the High Court erred in invoking the provisions of Order VII Rule 11 (d) of the Civil Procedure Code to dismiss the plaint, where there is no express or implied bar under any legislation in the immediate facts. The learned Munsif, on the other hand, was justified in his order dated 16.11.2013 in T.S. No. 334/2011 declaring the complaint maintainable.

The Decision Held by the Court

1. Honourable Supreme Court of India held that the judgement of the Gauhati High Court in Guwahati, dated June 6, 2014, in CRP No.128/2014, has been set aside. The plaint in title suit No.334/2011 has been returned to the learned Munsif No.2 Kamrup Guwahati's file. The parties, in this case, must appear before the learned Munsif without further notice on September 1, 2021, as the initial date for appearance, following which the suit will be decided on its merits.

2. As a result, the appeal is granted with no order as to expenses.

3. If there are any pending applications, they will be dismissed.

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