- (1.) The delay in filing the appeal is condoned. Heard Sri M.L. Maurya, holding brief of Sri Ramendra Asthana, learned Counsel for appellant on the admission of appeal.
(2.) This second appeal has been preferred by plaintiff, challenging the judgment and decree of the lower Appellate Court, whereby suit for declaration and mandatory injunction, has been dismissed.
(3.) For the sake of convenience, parties shall be referred as they were described in Trial Court, i.e., as plaintiff/defendant, unless specified otherwise. 1. The plaintiff instituted a suit for declaration, alleging that a road, more particularly described in the plaint, be declared as a public road and by a decree of mandatory injunction, projected constructions described by letters A, B, E, F, recorded in site plan raised by defendants, be demolished. Apart from private defendant Nos. land 2, Nagar Palika, Shahjahanpur was also impleaded as defendant No. 3 in the suit. 2. The private respondents contested the suit on the ground that claim was barred by limitation; plaintiffs have no right to sue; the alleged road is not a public road; rather it belongs to Nagar Palika and that it was never ever a public road. It was further alleged that disputed land was given on rent to defendant Nos. 1 and 2 by Municipal Board to the knowledge of plaintiff. The Municipal Board and defendant No. 3 did not file written statement. 3. The Trial Court held that as disputed passage was a public road over which defendants had raised illegal projections, it directed for its removal and declared said passage as a public road and defendants were also restrained from taking possession of the said passage. On appeal, the judgment and decree of Trial Court has been set aside, suit dismissed. 4. The relief claimed was for declaration and mandatory injunction. Section 326 of U.P. Municipalities Act, 1916 (for short "the Act") prohibits institution of the suit, unless it is preceded by two months notice to the Municipal Board. Section 326 of the Act reads as under: 326. Suits against Municipality or its officers-- (1) No suit shall be instituted against a Municipality or against a member, officer or servant of Municipality in respect of an act done or purporting to have been done in its or his official capacity, until the' expiration of two months next after notice in writing has been in the case of a Municipality, left at its office and in case a member, officer or servant, delivered to him or left at his office or place of abode, explicitly stating the cause of action, the nature of the relief sought, the amount of compensation claimed, and the name and place of abode of the intending plaintiff, and the plaint shall contain a statement that such notice has been so delivered or left. (2) If the Municipality's member, officer or servant shall before action is commenced, have tendered sufficient amends to the plaintiff, the plaintiff shall not recover any sum in excess of the amount so tendered, shall also pay all costs incurred by the defendant after such tendere. (3) No action such as is described in sub-section (1) shall, unless it is an action for the recovery of immovable property or for a declaration of title thereto, be commenced otherwise than within six months next after the accrual of the cause of action. (4) Provided that nothing in sub-section (1) shall be construed to apply to a suit wherein the only relief claimed is an injunction of which the object would be defeated by the giving of the notice or the postponement of the commencement of the suit or proceeding.;