At the time of admission, the following substantial questions of law were formulated for consideration in this second appeal:
“(i) Whether a mandatory injunction can be issued against a Municipality disregarding the provisions of Section 13 of the Survey and Boundaries Act, 1961, to issue a No Objection Certificate to the effect that the Municipality has no claims over the plaint schedule property, by accepting the de-jure possession of the respondent and by ignoring the rights of the Municipality over plaint schedule property, without declaring the title of the respondent and without correcting the revenue records according to which plaint schedule property continues to be purambokku land ?
(ii) Whether a mandatory injunction can be issued against a Municipality to issue a No Objection Certificate, which it is not obliged or bound to issue as per the provisions of the Municipality Act, 1994 ?
(iii) Whether a mandatory injunction can be issued against a Municipality to issue a No Objection Certificate of general nature unconnected with any specific purpose for which the permission of Municipality is required?
(iv) Whether a mandatory injunction can be granted to issue a certificate as sought for in an application the prayer and contents of which is vague and ambiguous ?”
2. The facts absolutely essential for the disposal of this appeal are as follows:
The plaintiff claimed title and possession over the suit property by virtue of Exts. A1 and A2 documents. He applied for a no objection certificate from the Municipality to produce it before the Thahasildar who insisted that a certificate is necessary for accepting tax for the property. This was in view of the fact that after the re-survey, in the revenue records, the property over which the plaintiff now lays claim was shown as Thodu puramboke. The plaintiff claimed that he has put up a bunk shop with the sanction of the Municipality and entry as 'Thodu puramboke' is wrong and he has absolute title and possession over the property. Complaining of threat of forcible dispossession, he laid the suit.
3. The Municipality resisted the suit by pointing out that as long as the resurvey records show that property involved in the suit is Thodu puramboke, it vests with the Municipality as per the provisions of the Municipality Act and it is not possible to issue a no objection certificate under such circumstances. They, however did not dispute that they had given permission for putting up a bunk shop and also collected the fees for the same. However, they contended that later on, it was partly demolished finding that it was unauthorised, but it was reconstructed without permission. At any rate, according to them they are unable to issue a no objection certificate as long as the entry in the revenue record stands showing the property as Thodu puramboke.
4. On the basis of above pleadings, issues were raised and the parties went to trial. The evidence consists of the testimony of PW1 and documents marked as Exts. A1 to A25 from the side of the plaintiff. The defendant had DW1 examined and had Exts. B1 to B3 marked. Exts. C1 to C4 are the Commissioners reports and plan.
5. The trial court mainly on the basis that since the permission has been granted to put up the bunk shop, it means that the title is admitted and possession is also accepted by the Municipality, granted a decree as prayed for by the plaintiff.
6. The Municipality went up in appeal and the appellate court confirmed the decree of the trial court.
7. The learned counsel appearing for the appellant contended that as long as the entry in revenue records stand showing the property involved as Thodu puramboke, it is not possible to give a no objection certificate to the plaintiff. It is also pointed out that the suit was one for injunction simpliciter and even though the title was specifically disputed by the defendant, no issue regarding title was raised, nor was the court fee paid for adjudication of that issue. Without an issue in that respect and also without paying necessary court fee only on the basis of fact that permission had been granted by the Municipality, conclusion regarding title ought not to have been drawn. Title had been specifically disputed. The view taken by the courts below cannot go together at all. As far as the possession is concerned, it is contended that the boundary shown in Ext. A2 purchase certificate differs considerably from the boundaries shown in Ext.A1 document of title based on which the suit has been laid. Attention was also drawn to the fact that an attempt was made by the plaintiff to get the boundaries rectified in Ext.A2 purchase certificate which was rejected by the authorities concerned pointing out that in the revenue records, the property is shown as Thodu puramboke. These aspects have been omitted to be noted by the courts below and that has resulted in a wrong decree being passed.
8. The learned counsel appearing for the respondent on the other hand pointed out that going by the Commissioners report, the Commissioner had verified the records, documents of title and then had identified the property based on which Commissioners report and plan had been filed. It was pointed out that the periodical licence and permissions were granted by the Municipality for putting up a bunk shop and the plaintiff was in absolute possession of the property. He apprehended threat of forcible dispossession and that made him approach the court. It is also contended that the order rejecting the application for correction in the purchase certificate has not become final and the entry in the revenue record showing the property as Thodu puramboke cannot be taken for considering the question as to whether the plaintiff is in possession of the property entitled to the order of injunction against forcible dispossession. All that the courts below have done is to protect the existing possession of the plaintiff and that does not cause any injury to the defendant.
9. After having heard the learned counsel on both sides and having perused the records, as rightly pointed out by the learned counsel for the appellant, the courts below could not have held that title of the suit property has been proved or admitted. First of all, there was no such issue raised for consideration, nor was the requisite court fee paid. Further, even as seen from the records and as admitted by the PW1, his application for correction of the boundaries in the purchase certificate was dismissed by the land tribunal holding that the revenue record shows the property involved as Thodu puramboke. That finding was confirmed in appeal and it is said that a revision is pending before this Court. It is under these circumstances, the prayer for issuance of a no objection certificate and the injunction will have to be considered.
10. On going through Exts. A1 and A2, boundaries differ considerably. The courts below have relied on the co- relation register namely Exts.A2 and A3 and title in favour of the plaintiff. As already stated, even though the title was disputed, the issue had not been raised and court fee had not been paid. Moreover, the suit was one for injunction simplicitor and possession alone is the criterion.
11. It is an admitted fact that the plaintiff is in possession of the property and also that he is running a bunk shop as could be seen from the documents produced. Even in the notice issued by the Municipality to remove the stone paved it is stated that he is in unauthorized occupation and the only complaint is of having made structures without permission of the Municipality. It was later, that notice was issued to him pointing out that he is sought to be evicted.
12. In the light of the fact that he is in actual possession of the property and running a bunk shop it is only proper that his possession be protected. If the Municipality wants to evict him, they have to take procedures known to law and in accordance with law. However, they cannot be directed by a mandatory injunction to grant a no objection certificate under the facts and circumstances of the case.
In the result, this appeal is partly allowed while confirming the permanent prohibitory injunction granted against the Municipality from forcible dispossession of the plaintiff from his property subject to the condition that the Municipality is at liberty to take such steps as are available to them in accordance with law, the relief of mandatory injunction granted stands vacated. None of the findings contained herein will preclude the plaintiff in the suit from taking such steps as are available to him in law for getting the purchase certificate rectified.
With the above observation, this appeal is disposed of.
P.BHAVADASAN JUDGE ds