S.N. Andley, J.
(1) If the suit filed by the respondent is 'a suit for the recovery of immovable properly or for a declaration of title thereto' sub-section (2) of section 478 of the Delhi Municipal Corporation Act 1957 will nto be a bar thereto. The main question, thereforee, to be determined in this appeal is whether the suit out of which this appeal arisesis a suit for the recovery of immovable property or for a declaration of title thereto.
(2) The plaintiff-respondent had filed the present suit on 8th June.. 1961 praying for amandatory injunction against the defendant 'to remove the construction of the road already constructed and clearing the above-said plto to bring the same in the original condition and a perpetual injunction restraining the defendants from erecting any other building on the above-said plot.' The only issue which is material for this appeal is whether the suit is barred by limitation under section 478(2) of the said Act and this was the only issue which was decided by the learned subordinate Judge in his judgment dated July 16, 1962 and by the learned Senior Subordinate Judge, in appeal, in his judgment dated April 11, 1963. The findings of the learned Subordinate Judge on this issue appear, at least from the certified copy of the judgment on the file, to be contradictory. At one place he finds that the construction started in December, 1959 and at another that it started in August, 1959. For the purpose of this appeal, the difference in the two d:'.tes is immaterial. The plaintiff-respondent alleges that he came to know of the encroachment by the appellantcorporation on November 28, 1960 and served a notice on December 1, 1960. Thereafter he filed the suit, as stated above, on. 8th June, 1961. Now sub-section (2) of section 478 of the said Act provides that no suit such as is described in sub-section (1) shall , unless it is a suit for the recovery of immovable property or for a declaration of title thereto, be instituted after the expiry of six months from the date on which the cause of action arises. The cause of action would undoubtedly arise from the date of the alleged encroachment and nto from its knowledge to the plaintiff-respondent. thereforee, it is immaterial whether the date of the encroachment is August, 1959 or December, 1959. In either case, if the suit is nto a suit for the recovery of immovable property or for a declaration of title thereto, it will undoubtedly be barred by reason of the provisions of sub-section (2) of section 478.
(3) The nature of a suit is to be determined from the allegations made in the plaint and, particularly, the relief claimed. The word 'for in sub-section (2) of section 478 is, in my view, directly related to the prayer which is made by a plaintiff filing a suit against the Corporation. It is, thereforee, necessary to examine the plaint which was filed by the respondent.
(4) In paragraph I, the respondent asserts his title to the plto of land in question. In paragraph 2, he complains of the construction of a road through the above plto by the appellant-Corporation. In paragraph 3, he denies the right of the Corporation to do so. In paragraph 4, he asserts his right to have the plto cleared and further asserts that the Corporation is liable to remove the construction and clear the plto and leave it in the original condition at their cost. In paragraph 5, he speaks of his knowledge about the alleged encroachment on November 28, 1960. In paragraph 6, he claims jurisdiction because of the location of the property. In paragraph 7 he fixes the value of the suit for purposes of jurisdiction and court-fee at Rs. 150.00 and pays the court-fee of Rs. 15.00 thereon. The prayer clause has already been set out above.
(5) The fact that the plaintiff-respondent has asserted his own title in the plaint would not, in my opinion, be conclusive of the matter. For the purpose of claiming the relief of injunction, it is necessary for the. plainfiff to assert a title but such an assertion is merely incidental to the relief that has been prayed for.
(6) I may notice only one case in this connection which is Hem Chandra Dev v. Dhirendra Chandra Das and others (1) where the plaintiff filed a suit alleging that the defendant-executors had committed a breach of their duty to administer the estate, and he prayed for a decree for the administration of the estate by and under the direction of the Court; for accounts, and for appointment of a receiver during the pendency of the suit. A part of the estate comprised of an item of immovable property which was outside the local limits of the jurisdiction of the Calcutta High Court. The question, thereforee, arose whether the Calcutta High Court had jurisdiction to entertain the suit. The learned Judges held that such a suit was nto a suit for determination of a right to or interest in immovable property merely because the estate comprised of one item of immovable property situate outside the local limits of the jurisdiction of Calcutta High Court. What they considered was the cause of action for the suit which was the alleged breach of the duties of the executors to administer the estate in due course of law. The learned Judges held that in that suit it may be necessary for the Court to issue directions for the administration of the entire estate and such directions may involve the immovable property which was outside the jurisdiction of the Court. Yet, it was held that the Court will nto cease to have jurisdiction because the enquiry as to the immovable property would be incidental to the main object of the suit. Merely because of such an enquiry, the suit would nto become a suit for determination of a right to, or interest in the immovable property.
(7) The learned Senior Subordinate Judge has construed the plaint. According to him the suit involves a cause of action regarding title to immovable property. According to the learned Senior Subordinate Judge, what the plaintiff-respondent wanted the Court to do for him was to remove the encroachment and to restore the land to him. The latter part of the observation is clearly incorrect. There is no prayer in the suit for restoration of the land to the plaintiff-respondent.
(8) Looking at the plaint can it be said that it is a plaint in a suit for the recovery of immovable property or for a declaration of a title thereto? In my opinion, clearly, such a conclusion is nto possible. The averments as to title are necessary for getting the relief of injunction as well as for recovering possession of the property but it is for the plaintiff to choose his relief. He could have filed a suit praying that the land be restored to him in which case it would have been a suit for the recovery of movable property or he could have prayed for a declaration of his title thereto. On this plaint, none of these reliefs can be granted to the plaintiff. thereforee, the plaint remains what it purports to be, that is, a plaint in a suit for injuction for removal of the construction and for a restraint on the erection of any other building. It is nto a suit either for the recovery of immovable property or for a declaration of title thereto. In these circumstances, sub-section (2) of section 478 of the Act will apply in full force and the suit would have had to be filed within six months from the date on which the cause of action arose. As stated above, according to the findings of the learned Subordinate Judge, the cause of action arose either in August, 1959 or in December, 1959. Whatever be the date the suit has undoubetdly been filed after the expiry of six months from the accrual of the cause of action and thereforee, it was instituted after the time prescribed by section 8(2). In these circumstances, issue No. 3 was rightly decided by the learned Subordinate Judge and the suit is clearly barred by the provisions of section 478(2) of the said Act.
(9) In the result the appeal is allowed, the judgment of the learned Senior Subordinate Judge is set aside and that of the learned Subordinate Judge restored. In view of the fact that nobody has appeared for the respondent there will be no order as to costs.