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Jhunwa and ors. Vs. the Municipal Board - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in71Ind.Cas.291
AppellantJhunwa and ors.
RespondentThe Municipal Board
Excerpt:
u.p. municipalities act (ii of 1916), section 326 - right to collect carcasses of dead animals, nature of--suit relating to such right--limitation. - - 2. it has been brought to our notice that there is a deficiency of court-fees in the appeal of the municipal board filed in the lower court which should be made good here. the decree of this court shall not be prepared until this deficiency is made good by the municipal board......of 1921 are connected and arise out of one suit brought by the plaintiffs-appellants against the municipal board of dhampur and the lessee from the board for a declaration that the plaintiffs-appellants were entitled to collect the carcasses of dead animals within the municipal board of dhampur and that the lease granted by the municipal board to buddhan was invalid and inoperative against the plaintiffs and should be cancelled. they further asked for damages and a perpetual injunction against the board preventing them from issuing any fresh leases. the learned munsif decreed the suit. on appeal the learned district judge dismissed the suit on the ground that it was barred by limitation under section 326 of the municipalities act. there were two appeals before the learned district.....
Judgment:

1. The two Appeals Nos. 1625 and 32 of 1921 are connected and arise out of one suit brought by the plaintiffs-appellants against the Municipal Board of Dhampur and the lessee from the Board for a declaration that the plaintiffs-appellants were entitled to collect the carcasses of dead animals within the Municipal Board of Dhampur and that the lease granted by the Municipal Board to Buddhan was invalid and inoperative against the plaintiffs and should be cancelled. They further asked for damages and a perpetual injunction against the Board preventing them from issuing any fresh leases. The learned Munsif decreed the suit. On appeal the learned District Judge dismissed the suit on the ground that it was barred by limitation under Section 326 of the Municipalities Act. There were two appeals before the learned District Judge, as the Municipal Board and the lessee had filed separate appeals. Both the appeals were decreed by the learned District Judge and the plaintiffs have, therefore, preferred these two connected appeals. The point raised in both of them is the same, namely, that Section 326 of the Municipalities Act does not apply to the case of the plaintiffs. The contention is, that the tright to collect the carcasses within the Municipal bounds of Dhampuris a right relating to immoveable property, while the provisions of Section 326, with regard to six months' limitation, apply to other actions thin those relating to immoveable property, or any title to the immoveable property. The learned Vakil for the plaintiffs-appellants contends that, as soon as an animal dies, and its carcass falls to the ground, the right to collect that carcass from the ground is a right relating to immoveable property. We are unable to agree with his contention, the mere fact of the carcass being on the ground and being collected from the ground would not show that it is attached to the soil, or the right to collect the carcass is a right appertaining to immoveable property. In our opinion, the claim of the plaintiffs-appellants was rightly dismissed as barred under Section 326 of the Municipalities Act. The appeal, therefore, fails and is dismissed with costs, including fees in this Court on the higher scale.

2. It has been brought to our notice that there is a deficiency of Court-fees in the appeal of the Municipal Board filed in the lower Court which should be made good here. The decree of this Court shall not be prepared until this deficiency is made good by the Municipal Board. It will then be recoverable as costs from the opposite party.


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