Nagpur Improvement Trust v. Madhukar Wamanrao Jadhav ) & Anr.

Heard Mr R.O. Chhabra, the learned counsel for the appellant and Mr Bhangde, the learned counsel for the respondent. The appellant is the original defendant. The suit was instituted by the respondent/plaintiff for a declaration that the notice issued by the defendant /appellant - Nagpur Improvement Trust to the plaintiff on

8.11.1995 asking the plaintiff to remove the unauthorised construction on the suit property was illegal. The plaintiff also sought a permanent injunction restraining the defendant-NIT from taking any action in pursuance of the notice dated 8.11.1995. According to the plaintiff, the NIT had previously issued a notice for removal of unauthorised construction to the plaintiff on 23.8.1984 and a suit was instituted by the plaintiff raising a challenge to the said notice. It was pleaded by the plaintiff that there was a stay granted in the previous suit filed by the plaintiff and in such circumstances, the 2 defendant did not have any jurisdiction to issue the notice dated 8.11.1995, more so because no new construction was made by the plaintiff on the suit property. The defendant denied the claim of the plaintiff and also denied that the notice dated 8.11.1995 was illegal. It was pleaded by the NIT that the suit filed by the plaintiff was not tenable as a notice under section 115 of the Nagpur Improvement Trust Act, 1936 was not issued by the plaintiff to the defendant before the institution of the suit.

The defendant pleaded that the plaintiff had made a new construction over the suit property during pendency of the previous suit and, therefore, it was necessary for the NIT to issue the subsequent notice dated 8.11.1995. The defendant sought for the dismissal of the suit. On an appreciation of the evidence tendered by the plaintiff, the trial Court and the first Appellate Court held that the plaintiff was entitled to a declaration and permanent injunction as sought by him as the notice dated 8.11.1995 was illegal. Both the Courts concurrently held that the plaintiff had not made any new construction over the suit property after the institution of the previous suit by the plaintiff in the year 1984 and there was no reason for the NIT to issue the notice dated 8.11.1995. The Courts also held that the suit was not bad for want of notice u/s 115 of the NIT Act as the 3 NIT had not done anything purporting to be done under the Act of 1936 by issuance of the notice dated 8.11.1995.

The Courts, therefore, held that the issuance of notice u/s. 115 was not necessary. The findings recorded by both the Courts are pure findings of facts, based on proper appreciation of the material evidence on record. They do not give rise to any substantial question of law. The Second Appeal is, therefore fails and is dismissed with no order as to costs. sahare JUDGE