A. Misra, J.
1. Defendant Nos. 3 and 4 are the appellants. Plaintiff-respondent No. 1 filed the suit for declaration of title, confirmation of possession or in the alternative for recovery of possession of the disputed land measuring 24' x 9' appertaining to khata No. 93. plot No. 1026 in Markandeswar Sahi of Puri town. He also claimed Rs. 100/- as damages from defendant Nos. 1 and 2 and a permanent injunction restraining the defendants from interfering with his possession and damaging any of the trees or plants grown on the suit land.
2. Plaintiff's case, in brief, is as follows: The strip of land in dispute adjoins his house on the west while defendant Nos. 3 to 5 have their houses on the eastern side of the plaintiff's house on plot No. 1027. Defendant No. 6 is the landlord of both the plots Nos. 1026 and 1027. The piece of land on which plaintiff's house is situate was originally leased out to one Jaina Parida, who constructed a house thereon with the permission of the municipality sometime in 1940 and inducted the plaintiff as a tenant in 1943. Subsequently. Jaina Parida sold the house and structures to the plaintiff and reconveyed the land to the landlord (defendant No. 6). Plaintiff took the said land on lease from defendant No. 6 in 1945. The suit land which forms a part of plot No. 1026 lying fallow. With the permission of the landlord plaintiff occupied the suit land and raised a garden in the year 1943 and took a regular lease of the same in the year 1945. Defendant No. 4 who was serving as an Amin of the Puri Municipality influenced the Chairman and Executive Officer who issued a notice on him making a false claim that the suit land constituted sweeper's passage and called upon him to remove the garden. Plaintiff, in reply, intimated that having taken lease of the suit land, he has title to the same and the municipality had no right. The municipality forcibly destroyed the fence and plants existing on the disputed land and on 6-3-56 deliberately got some night-soil baskets placed there. Hence, plaintiff filed the suit claiming the aforementioned reliefs.
3. Defendant No. 6 supported the plaintiff's claim. Defendant Nos. 1 and 2, the Executive Officer and Councillors of the Puri Municipality through their Chairman in their written statement pleaded that the suit is not maintainable in the absence of a notice, as required under Section 349 of the Orissa Municipal Act, that the claim for damages is barred under Article 11 and Section 349 (2) of the Municipal Act; that Jaina Parida, while applying for sanction of his plan in 1940 made over a portion of the suit land measuring 12' x 8' together with a strip of land to its adjoining north to the municipality to provide a sweeper's passage, and as such, the ownership vested in them and in the alternative they claim to have prescribed a title by adverse possession for more than twelve years. They further state that as plaintiff committed encroachment in the year 1952 and failed to remove it in spite of notice, they got it removed through their employees in accordance with the provisions of law. The claim of damages is also alleged to be excessive.
Defendant Nos. 3 to 5, while in general supporting the contentions of the municipality alleged that out of the total area of 130 decimals appertaining to plot No. 1027, defendant No. 6 had leased out 120 decimals to them and Jaina Parida and left the balance of 10 decimals for common use. The said land vested in the municipality by being used as a sweeper's passage. They further claim that they have acquired an easementary right of passage over the suit land by user for more than twenty years. Defendant No. 7, an adjoining owner who was impleaded subsequently, while claiming ease-mentary right of passage also claims that 1.5 decimals of the suit land appertains to his portion of the plot No. 1026 in which plaintiff has no title.
4. The trial court recorded the following findings (1) Plaintiff has title to and possession of the suit land which forms part of plot No. 1026; (2) the municipality has not acquired any title to the suit property by adverse possession or otherwise; (3) defendant Nos. 3 to 5 and 7 have failed to prove acquisition of ease-mentary right of passage over the suit land; (4) the claim for damages is barred under Section 349 (2) of the Orissa Municipal Act; (5) the suit was not maintainable for want of service of notice under Section 349 (1) and (6) the suit is not maintainable as the municipality has not been properly impleaded. On the aforesaid findings, it dismissed the suit. On appeal by the plaintiff, the lower appellate court concurred in the findings that the suit land appertains to plot No. 1026: that plaintiff has got title to and possession of the same; that the claim for damages is barred under Section 349 (2) of the Municipal Act; that defendant Nos. 1 and 2 have not acquired any title to the suit property and that defendant Nos. 3 to 5 and 7 have not proved any easementarv right of passage. It held that in a suit of the present nature, notice under Section 349 (1) of the Municipal Act was not necessary. It, however, held that the suit against the municipality is not maintainable as they have not been properly impleaded in the suit.
On these findings the appeal was allowed in part decreeing the suit against defendant Nos. 3 to 5 and 7 declaring plaintiff's title to the suit land, confirming his possession and restraining the saiddefendants from interfering with the plaintiff's possession. The suit was dismissed against defendant Nos. 1 and 2 as not maintainable.
5. Appellants challenge the judgment and decree of the lower appellate court mainlv on the ground that having held that the suit is not maintainable against defendant Nos. 1 and 2, the same cannot be decreed against the appellants as it would result in inconsistent decrees; it erred in accepting the commissioner's report finding that the suit land ascertains to plot No. 1026 and that it has not considered the defence evidence in deciding their claim of easementarv right and also the right of the municipality to maintain a sweeper's passage in derogation of the title and possession of the owner. Plaintiff-respondent No. 1 filed cross-objection challenging the finding of the lower appellate court against the maintainability of the suit on a technical ground that the municipality has not been properly described. He also filed a petition during the course of hearing for amendment of description of the municipality which is said to be a purely technical defect which had inadvertently crept in. Defendant Nos. 1 and 2 who are respondent Nos. 3 and 4 herein have filed a cross-appeal challenging the findings of the lower appellate court relating to the requirement of notice under Section 349 of the Orissa Municipal Act, acceptance of the survey-knowing commissioner's report and acquisition of valid title to the suit land by the plaintiff.
6. I will now proceed to deal with the appeal, cross-appeal and cross-objection filed by the different parties.
7. There is no dispute that defendant No. 6 is the landlord of plot Nos. 1026 and 1027 and that plaintiff and defendant Nos. 3 to 5 and 7 are in occupation of portions of these two plots under different leases held from the landlord. There is also no dispute that the suit strip of land belonged to the same landlord though there is a difference between the parties as to which plot the same appertains. According to the plaintiff, he has taken lease of the suit strip of land which appertains to plot No. 1026. Though defendant-appellants do not claim any title to the suit land, they allege that it appertains to plot No. 1027 which had been surrendered to the municipality for a sweeper's passage in the year 1940 and in the alternative they claim an easementary right of passage over it. The courts below have recorded concurrent findings that the suit land appertains to plot No. 1026; that plaintiff has subsisting title and is in possession of the same and that the defendants have not acquired any easementary right of passage. These concurrent findings are not assailable in second appeal, and as such, I do not find any merit in the contentions of the appellants.
8. Next I proceed to deal with the cross-appeal filed by respondent Nos. 3 and 4 who were defendant Nos. 1 and 2 in the trial court and the cross-objection filed by plaintiff-respondent No. 1. In the cross-appeal, respondent Nos. 3 and 4 mainly challenge the finding of the lower appellate court that service of notice u/s. 349 of the Orissa Municipal Act (hereinafter to be referred to as the Act) was not necessary before institution of the suit. In the cross-objection, plaintiff-respondent No. 1 has assailed the finding of the lower appellate court about non-maintainability of the suit against defendant Nos. 1 and 2 and they have not been properly impleaded in the suit. The points that arise for consideration on the cross-appeal filed by respondent Nos. 3 and 4 and cross-objection filed by plaintiff respondent No. 1 are as follows: (1) Whether absence of service of notice under Section 349 (1) of the Act is fatal to the maintainability of the suit; (2) whether the suit is not maintainable against defendant Nos. 1 and 2 on account of the wrong description of defendant No. 2 and 3 whether the prayer for amendment of the description of defendant No. 2 can be allowed at this stage.
9. Point No. 1:-- It is contended that the notice under Section 349 (1) of the Act being mandatory, no suit or other legal proceeding against the municipal councillors or its officers or servants in respect of acts done or purporting to be done in execution or intended execution of the provisions of the Act. Rules. Regulations, bye-law, etc. is maintainable without service of a notice. According to learned counsel for respondent Nos. 3 and 4, the municipality served a notice on the plaintiff to remove the alleged obstruction to the sweeper's passage and when he failed to comply with it steps were taken to get the same removed by its employees. This action of the municipality being within its competence in view of the provisions contained in Section 344 of the Act, it was an act done or purported to have been done in execution or intended execution of the provisions of the Act. Therefore. Section 349 (1) is attracted and service of a notice was a mandatory requirement for maintainability of the suit.
Learned counsel for respondent No. 1, on the other hand, urges that out of the two reliefs sought by him in the plaint, one relating to the claim for damages may come within the purview of Section 349 (1), and to that extent without service of notice, the claim for damages was not maintainable. So far as theother relief of declaration of title, confirmation of possession or in the alternative recovery of possession is concerned, the action of the municipality was nothing more than a pure act of trespass and trespass cannot be construed to be an act done or purported to be done in execution or intended execution of the provisions of the Act. Rules. Regulations, etc. A similar question arising under Section 377 of the B & O Municipal Act which in substance, corresponds to Section 349 of the Act came up for consideration before this Court in the decision reported in Salim Mohammed v. Cuttack Municipality. (1949) 15 Cut 39. It was held that Section 377 of the B & O Municipal Act which laid down the requirement of notice of a contemplated suit was applicable only in those cases where plaintiff claimed damages or compensation for wrongful acts committed by the commissioners or their officers in the exercise or honestly supposed exercise of their statutory powers that is acts done by the commissioners, 'colori offici' and that an act of trespass by a municipality cannot be said to be an act done under the Act.
A comparison of Section 377 (1) of the B & O Municipal Act and Section 349 (1) of the Act shows that both the sections make it imperative on the part of the plaintiff to serve a notice before institution of a suit in respect of acts done in execution or intended execution of the provisions of the Act. Rules, Regulations, bye-laws, etc. The slight difference in the language is that the section under the old Act mentions only acts done, while the provision in the new Act refers to acts done or purported to have been done. This difference in my opinion does not bring about any material change in the requirement of notice under the old and new Acts. An act of trespass cannot be construed as an act done or purported to have been done in execution or intended execution of the provisions of the Act Rules, Regulations, etc. as those provisions do not envisage or authorise acts of trespass.
Reliance was sought to be placed by learned counsel for respondent Nos. 3 and 4 on a single Judge decision of this Court in S. A. No. 573 of 1966 disposed of on 31-8-1970 (Orissa) where It was held that the requirements of Section 349 (1) not having been satisfied, the suit was not maintainable. The facts of that case are distinguishable and can have no application to the question that arises here. In that case, a notice was served under Section 344 (2) of the Act on certain persons to remove the alleged encroachments made on the public road belonging to the municipality. The encroachers filed a suit disputing the fact of encroachmentand seeking an injunction restraining the municipality from taking steps to remove the encroachments. That was not a case where the municipality had committed trespass, but a case where the suit was filed against the municipality in respect of acts done or purported to have been done under the provisions of the Act and Rules. In those circumstances, it was held that a notice under Section 349 (1) of the Act was a pre-condition to the institution of a suit.
In the present case, however, the municipality is alleged to have committed a trespass, an act which conceivably cannot be said to have been done or purported to have been honestly done under the provisions of the Act. For the reasons discussed above. I agree with the lower appellate court that the relief of declaration of title and recovery of possession being based on the cause of action of the alleged trespass by the municipality on his private rights, service of a notice under Section 349 (1) of the Act is not a precondition for maintainability of the suit. I find no merit in the cross-appeal filed by respondent Nos. 3 and 4
10. Point Nos. 2 and 3: -- While finding that plaintiff has subsisting title to and possession of the suit land and the municipality has not acquired any title by virtue of surrender or by adverse possession, the lower appellate court has ordered dismissal of the suit against defendant Nos. 1 and 2 on the ground that defendant No. 2 has not been properly impleaded. Defendant No. 1 is the Executive Officer. Puri Municipality, while defendant No. 2 is described as Councillors of the Puri Municipality through their Chairman. So far as the description of defendant No. 1 is concerned, it is not very material, once the claim for damages has been rejected. The courts below have held that the suit is not maintainable against the municipality on the ground that it has not been impleaded as contemplated in Section 9 of the Act. Under Section 9, the Councillors of the municipality constitute a body corporate by the name of the Municipality by reference to which it is known and may sue or be sued in its corporate name. It is not disputed that the proper manner of impleading the municipality was to have impleaded it by its corporate name instead of suing it as Councillors of the Puri Municipality through its Chairman. During the course of arguments of this Second Appeal, a petition has been filed to amend the plaint by inserting the words 'known as Puri Municipality by name' in between the words 'Councillors of Puri Municipality' and 'through their Chairman'. The amendment proposed is purely a technical one which is more in the nature of correction of an error thansubstitution or addition of a party. In the decision reported in Mohideen v. V. O. A. Mohomed. AIR 1955 Mad 294, it was observed:
'If however imperfectly and incorrectly a party is designated in a plaint, the correction of the error is not the addition or substitution of a party, but merely clarifies and makes apparent what was previously shrouded in obscurity by reason of the error or mistake. The question in such a case is one of intention of the party and if the court is able to discover the person or persons intended to sue or to be sued, a mere mis-description of such a Party can always be corrected provided the mistake was a bona fide one'.
In the decision reported in Manohar Lal v. N. B. M. Supply. Gurgaon. AIR 1969 SC 1267 there was a mis-description of the plaintiff in instituting the suit which was sought to be amended subsequently, It was observed:
'A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The court always gives leave to amend the pleadings of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder he had caused injury to his opponent which may not be compensated for by an order of costs. However negligent or careless may have been the first omission, and however late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side'.
In the present case, by allowing the amendment now praved for no injustice or prejudice can accrue to the municipality, because as it transpires from the record, it has contested the suit on merits as if it was a party and on merits its claims have been negatived. There is no suggestion that the mis-description in the plaint was due to any mala fides on the part of the plaintiff. Considering these aspects. I allow the amendment as prayed for in the description of defendant No. 2 by inserting the corporate name of the municipality. Having allowed this amendment, the defect on which the suit against the municipality was dismissed no longer exists. Therefore, in view of the other findings, the cross-objection is to be allowed and the suit decreed against the municipality as well.
11. In the result, the appeal and the cross-appeal filed by respondent Nos. 3 and 4 are dismissed. The cross-objection filed by plaintiff-respondent No. 1 is allowed and the order of the lower appellate court dismissing the suit is set aside. The decree of the lower appellate court be modified as follows. The suit be decreed in part against defendant Nos. 1. 2, 3 to 5 and 7 with proportionate costs declaring plaintiff's title and confirming his possession to the suit land. In the circumstances of the case, each party will bear his costs of this Court.