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Jagannath Saha Vs. Chairman of Berhampur Municipality - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in4Ind.Cas.55
AppellantJagannath Saha
RespondentChairman of Berhampur Municipality
Excerpt:
specific relief act (i of 1877), section 56 - suit for declaration of title to land--bengal municipal act (iii b.c. of 1884), section 44--chairman not competent to lease or sell--estoppel. - .....(4) that the finding as to the plaintiff's want of title is not a legal finding, and (5) that the judge's finding, that the disputed land is part of a road, is not warranted by the facts.3. the pleader for the respondent admits that the suit is not barred by section 56 of the specific relief act, but contends that the settlement made by the chairman is not binding on the municipality. this contention is clearly a good one. the chairman had no power to sell and lease the land to the plaintiff. only the commissioners at a meeting could do so. the chairman is expressly barred.. by section 44 from exercising such a power. the matter was, no doubt, laid before the commissioners at a meeting, but they passed no resolution. they postponed consideration of the matter. about 2 years and 4 months.....
Judgment:

1. The facts of this case are fully set out in the judgment of the Court below. It is sufficient to say here that the plaintiff practically sues for a declaration that the land on which he has built a house is his and not a public road and for the withdrawal of an order issued by the Magistrate at the instance of the Municipal Commissioners of Berhampore directing him to demolish it. The District Judge has dismissed the suit, because he considers that the order complained of was passed by the District Magistrate in a judicial capacity, because he has not been made a party and because no suit for an injunction lies against him in the Munsif's Court.

2. The plaintiff appeals on the grounds (1) that the suit is not barred under Section 56 of the Specific Relief Act, (2) that the settlement of the land made with him by the Chairman of the Municipal Commissioners is binding on the Municipality, (3) that the plaintiff is not estopped from disputing the defendant's title to the land, (4) that the finding as to the plaintiff's want of title is not a legal finding, and (5) that the Judge's finding, that the disputed land is part of a road, is not warranted by the facts.

3. The pleader for the respondent admits that the suit is not barred by Section 56 of the Specific Relief Act, but contends that the settlement made by the Chairman is not binding on the Municipality. This contention is clearly a good one. The Chairman had no power to sell and lease the land to the plaintiff. Only the Commissioners at a meeting could do so. The Chairman is expressly barred.. by Section 44 from exercising such a power. The matter was, no doubt, laid before the Commissioners at a meeting, but they passed no resolution. They postponed consideration of the matter. About 2 years and 4 months after that, the plaintiff was allowed to construct a drain round the, house. This does not operate as an estoppel against the defendants, because the plaintiff built his house on the Municipal road before constructing the drain. He was not led to erect the house by the Commissioners' permission to make the drain. The plaintiff has been found by both Courts to have no title to the land on which he has built the house. It has been clearly found by the District Judge that the land is property of the Municipality. This finding seems to us to be warranted by the facts and by the plaintiff's admission.

4. We, therefore, dismiss the appeal with costs.


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