The Gwalior Bench of Madhya Pradesh High Court on Wednesday, dismissed the Second Appeal filed by Nagar Palika Parishad, Shivpuri under Section 100 of C.P.C. against the judgment dated 28/4/2018 passed by Fourth Additional District Judge (ADJ) , Shivpuri in Civil Appeal No.500051/2015 upholding the judgment dated 28/8/2015 passed by Civil Judge, Class-II, Shivpuri in Civil Suit No.32A/2015.
The counsel for the appellants submitted that the ADJ and Lower Court has rejected the appeal filed on behalf of Municipal Corporation, Shivpuri wherein it was pleaded that drainage system was constructed on the land of the Municipal Corporation in regard to which relevant notices were issued to the respondent, despite appellate Court has rejected the appeal.
It is further submitted that the suit merely for grant of injunction is not maintainable as the respondent did not ask any relief to the effect that drainage construction is valid and is in accordance with law. Further, Municipal Corporation had issued notice dated 26/11/2012, therefore, suit was not maintainable.
It is also stated by the counsel that under Sections 200 and 201 of Madhya Pradesh Municipal Corporation Act 1956, the drainage system is under the control of Municipal Corporation and the respondent has constructed the same without prior permission of the Municipal Corporation. The land used for construction of drainage system was preserved for plantation.
On the other hand it was contended by the respondent that as the Superintendent, Land Record, Shivpuri has observed in his report that the land used for preparing drainage system is in the ownership of the respondent, therefore, there is no merit in this second appeal and prayed to reject the appeal.
A Single Bench of Justice Rajeev Kumar Shrivastava heard counsel for the rival parties and perused the available record. The Court held that the report of the Superintendent, Land Record, Shivpuri was exhibited before the trial Court and the commission was issued by the trial Court itself wherein Superintendent, Land Record, Shivpuri was the Commissioner, who is a public servant. In the report, it is specifically observed that the land, in which the drainage system was constructed, is in the ownership of the respondent.
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The Judge cited the Judgement of Apex Court in Karnataka Board of Wakf Vs. Anjuman-EIsmail Madris-un-Niswan, (AIR 1999 SC 3067)in which the Supreme Court has observed that the High Court should not interfere with the concurrent finding of fact in a routine and casual manner by substituting its subjective satisfaction in place of lower Courts.
“This Court is of the view that there is no substantial question of law involved in relation to the findings given by both the Courts below to the effect that the appellant-plaintiff is illegally intervening in the matter of drainage system/pipeline construction being done by the respondent plaintiff on his own land and, therefore, there is no question of legality of notice under Section 319 of Municipalities Act. Accordingly, the second appeal is dismissed being devoid of merits,”
-the High Court ordered while dismissing the appeal.