- (1.) This second appeal arises out of a suit filed by the plaintiff-appellant against the defendant-respondents.
(2.) It is alleged in the plaint that Gram Panchayat, Mehenda, started some proceedings for the removal of the plaintiff's bara. Subsequently these proceedings were transferred from Gram Panchayat, Mehenda, to Gram Panchayat, Barsi on the application of the plaintiff by the Magistrate 1st \class, and the Gram Panchayat, Barsi, passed a resolution on March 22, 1962 and held that the plaintiff's possession over the land in dispute was illegal and that he has encroached upon the panchayat land and directed the plaintiff to remove the encroachment within one month. In the order it was further provided that in case the plaintiff fails to remove the encroachment within one month, then he will be liable to pay recurring fine at the rate of Re. 1/- per day. Dissatisfied by the resolution of the Gram Panchayat, a suit was filed by Matu Ram plaintiff for declaration that the impugned resolution passed by the Gram Panchayat was illegal, without jurisdiction and ultra vires. This suit was contested by the defendants and parties contested on the followed issues :- 1. Is the site in dispute attached to a common pond and used for public purpose ? 2. Were the proceedings taken by the defendants not legal and taken in bad faith ? 3. In case of proof of issues Nos. 1 and 2, is the plaintiff the owner in possession of this land ? 4. Can the plaintiff not sue ? Two additional issues were also framed as under :- 1A. Whether the notice under section 108 of the Gram Panchayat Act is essential and the suit is not maintainable without this notice ? 2-A Whether the suit is not maintainable as alleged in para 2 of the preliminary objections ?
(3.) The trial Court decided issues Nos. 1-A and 2-A against the defendant; issues Nos. 1 and 3 against the plaintiff and issues Nos. 2 and 4 in favour of the plaintiff and decreed the plaintiff's suit.;