MUNICIPAL CORPORATION OF DELHI Vs. KUNDAN LAL SHARMA

JUDGEMENT

(1.) If the suit filed by the respondent is "a suit for the recovery of immovable properly or for a declaration of title thereto" sub-section (2) of section 478 of the Delhi Municipal Corporation Act 1957 will not be a bar thereto. The main question, therefore, to be determined in this appeal is whether the suit out of which this appeal arisesis a suit for the recovery of immovable property or for a declaration of title thereto.

(2.) The plaintiff-respondent had filed the present suit on 8th June.. 1961 praying for amandatory injunction against the defendant "to remove the construction of the road already constructed and clearing the above-said plot to bring the same in the original condition and a perpetual injunction restraining the defendants from erecting any other building on the above-said plot." The only issue which is material for this appeal is whether the suit is barred by limitation under section 478(2) of the said Act and this was the only issue which was decided by the learned subordinate Judge in his judgment dated July 16, 1962 and by the learned Senior Subordinate Judge, in appeal, in his judgment dated April 11, 1963. The findings of the learned Subordinate Judge on this issue appear, at least from the certified copy of the judgment on the file, to be contradictory. At one place he finds that the construction started in December, 1959 and at another that it started in August, 1959. For the purpose of this appeal, the difference in the two d:'.tes is immaterial. The plaintiff-respondent alleges that he came to know of the encroachment by the appellantcorporation on November 28, 1960 and served a notice on December 1, 1960. Thereafter he filed the suit, as stated above, on. 8th June, 1961. Now sub-section (2) of section 478 of the said Act provides that no suit such as is described in sub-section (1) shall , unless it is a suit for the recovery of immovable property or for a declaration of title thereto, be instituted after the expiry of six months from the date on which the cause of action arises. The cause of action would undoubtedly arise from the date of the alleged encroachment and not from its knowledge to the plaintiff-respondent. Therefore, it is immaterial whether the date of the encroachment is August, 1959 or December, 1959. In either case, if the suit is not a suit for the recovery of immovable property or for a declaration of title thereto, it will undoubtedly be barred by reason of the provisions of sub-section (2) of section 478.

(3.) The nature of a suit is to be determined from the allegations made in the plaint and, particularly, the relief claimed. The word "for in sub-section (2) of section 478 is, in my view, directly related to the prayer which is made by a plaintiff filing a suit against the Corporation. It is, therefore, necessary to examine the plaint which was filed by the respondent.