JAIN, J. - (1.) PLAINTIFF-appellant Takhat Singh @ Norat Mal S/o Shri Ram Baksh Tanwar has preferred this appeal under Section 100 of the Code of Civil Procedure against the judgment and decree dated 30. 8. 1984 passed by the Additional Civil Judge No. 2, Ajmer, in Civil Appeal No. 57/1983, whereby he dismissed the appeal of the plaintiff appellant and affirmed the judgment and decree dated 7. 11. 1977 passed by the Munsif, Ajmer City (East) Ajmer, in Civil Suit No 282/75, whereby the suit of the plaintiff-appellant for perpetual injunction was dismissed.
(2.) THIS Court while admitting this second appeal on 19th of December, 1984, formulated the following questions of law involved in this appeal:- " 1. Whether the notice Ex. 5 dated 24. 7. 1975 is illegal and void and could not be issued under the provisions of Section 170 (11) of the Rajasthan Municipalities Act, 1959? 2. Whether in view of Ex. 11 the Municipality having accepted compensation for granting permission to raise compound wall over the chabutari by accepting a sum of Rs. 150/- and granting permission dated 3. 1. 1975, the revocation of the permission vide Ex. 15 was invalid and contrary to the provisions of the Rajasthan Municipalities Act, 1959? 3. Whether the Municipal Council has not violated the principles of natural justice by unilaterally cancelling the sanction already granted for construction of chabutari? I have heard learned counsel for both the parties. The plaintiff-appellant filed a suit for perpetual injunction against the defendant Municipal Council, Ajmer in the court of Munsif Magistrate, Ajmer City (East), Ajmer, on 30th of July, 1975, wherein it was pleaded by him that he is the owner of the property bearing AMC No. 76/16 (correct number is 16/79) situated at Purani Mandi, Ajmer. The defendant vide letter dated 3. 1. 1975 asked the plaintiff to remove constructions, the details of which were given in para 2 of the plaint. It was further pleaded that the plaintiff deposited Rs. 50/- with the defendant as compensation and after depositing the amount the said construction was regularized. However, the defendant, vide its letter dated 24. 7. 1975 again asked the plaintiff to remove the construction and gave threatening to remove the said construction at the cost of the plaintiff in case the said construction is not removed within seven days of the receipt of the said letter, therefore, the present suit was filed with the prayer to decree the suit of the plaintiff for perpetual injunction restraining the defendant not to remove the construction detailed in para 1 of the plaint. The defendant-respondent filed written statement dated 31. 12. 1975 in the lower Court on 28. 1. 1976, wherein it was pleaded that the permission of construction was obtained by misrepresentation and concealment of fact by the plaintiff. The compound wall exists on the land which vests in the Municipality and is a part of the public way and no permission could have been granted for putting any construction over the passage. The issuance of notice dated 24. 7. 1975 was admitted and it was submitted that the earlier sanction was revoked by the Administrator as the sanction was obtained by concealment of facts. The construction which was regularised were on municipal land and found part of passage and, therefore, the notice dated 24. 7. 1975 was rightly given. It was also pleaded that the proper remedy for the plaintiff against the notice dated 24. 7. 1975 was by way of appeal to the Collector and no appeal having been preferred within 30 days the said notice has become final and the suit is liable to be dismissed. On the basis of the pleadings of the parties the following issues were framed on 28. 10. 1976:- " 1. Whether the plaintiff is the owner of the property bearing AMC No. 16/79? 2. Whether the letter dated 24. 7. 1975 issued by the Municipal Council is illegal, arbitrary and without jurisdiction? 3. Whether the permission was obtained by misrepresentation and concealment of facts as alleged in para 3 of the written statement? 4. Whether the suit is not maintainable for reasons alleged in para 10 of the written statement? 5. Relief?"
(3.) BOTH the parties led oral and documentary evidence in support of their case. The learned lower Court vide its judgment dated 7. 11. 1977 dismissed the suit of the plaintiff. Being aggrieved with the same an appeal was preferred which was also dismissed by the lower appellate Court. The learned counsel for the plaintiff-appellant contended that the disputed chabutari as well as the construction raised thereon were on the land belonging to the plaintiff and the same the part of his property bearing AMC No. 16/79. The plaintiff purchased the property in dispute through registered sale deed dated 23. 2. 1968 (Exhibit 1) from Kishan Singh S/o Bakhtawar Singh and Kunwar Jitendra Singh S/o Shri Kishan Singh. Shri Bakhtawar Singh purchased the said property vide certificate of sale (Exhibit 2 ). The plaintiff thereafter applied for sanction of the plan to the defendant but it was partly sanctioned. The plaintiff thereafter wrote a letter (Exhibit 3) dated 12. 7. 1972 to sanction his plan in toto. The defendant vide Exhibit-11 passed an order for deposit of Rs. 50/- as compensation for unauthorized construction. The plaintiff received a letter Exhibit-12 from the defendant to deposit Rs. 50/- which was deposited vide receipt (Exhibit-13) on 3. 1. 1975. The learned counsel for the appellant, therefore, contended that the defendant committed an illegality in issuing the notice (Exhibit 15) to the plaintiff. The learned counsel for the respondent contended that the disputed construction was raised by the plaintiff on the public land/public way belonging to the defendant Municipal Council, Ajmer. The plaintiff obtained the regularization order in his favour by making misrepresentation and showing the said land as his own whereas subsequently it came to the notice of the defendant that the said land belongs to Municipal Council, Ajmer. and in fact it was a part of the public way itself, therefore, the notice dated 24. 7. 1975 was rightly issued to the plaintiff. The learned counsel for the respondent also contended that the plaintiff filed a suit for perpetual injunction only without any averment and prayer about declaration to the effect that the land in dispute belongs to the plaintiff, therefore, the present suit for perpetual injunction was not maintainable without seeking any relief in respect of declaration. In support of his contention he referred following decisions:- 1. Gulam Mohd. Qureshi vs. Nagar Nigam Jaipur, 1999 (2) WLC (Raj.) 595 2. Bhurji & Another vs. Urban Improvement Trust, Alwar & Another, 1996 (3) WLC (Raj.) 155 ;