[2025:RJ-JP:20405] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Second Appeal No. 452/2016 1. Dinesh Kumar S/o Shri Ramray, R/o Malpura District Tonk 2. Ramswaroop S/o Shri Deva Lal, R/o Ajmer Road, Malpura, District Tonk, Rajasthan ----Appellants Versus 1. Munucipality Malpura Through The Chair Person Municipality, Malpura District Tonk 2. Executive Officer, Municipality Malpura District Tonk 3. Jagdish S/o Chitar, R/o Malpura, District Tonk 4. Sobhagmal S/o Shripal, R/o Malpura, District Tonk ----Respondents For Appellant(s) : Mr. Shiv S. Choudhary, Adv. For Respondent(s) : Mr. Praveen Kumar Jain, Adv. HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA Judgment DATE OF JUDGMENT 15/05/2025 This Civil Second Appeal has been filed by the appellants- plaintiffs (for short ‘the plaintiffs’) against the judgment and decree dated 04.06.2016 passed by Additional District Judge, Malpura, District Tonk in CRA No.4/2016, whereby the appellate court dismissed the appeal filed by the plaintiffs and confirmed the order dated 28.04.2016 passed by Senior Civil Judge, Malpura, District Tonk in Civil Suit No.02/2010, by which the application under Order 7 Rule 11 CPC filed by the respondent Nos.3 and 4- defendant Nos.2 and 3 (for short ‘the defendants’) was allowed and rejected the plaint filed by the plaintiffs. Learned counsel for the plaintiffs submits that the plaintiffs filed a suit for declaration and permanent injunction against the [2025:RJ-JP:20405] (2 of 3) [CSA-452/2016] defendants regarding way and cancelling the regularization order dated 07.12.2009 as well as registered lease deed dated 08.03.2010. Learned counsel for the plaintiffs also submits that the defendants filed an application under Order 7 Rule 11 CPC. The trial court vide order dated 28.04.2016 allowed the application filed by the defendants and rejected the plaint filed by the plaintiffs. Learned counsel for the plaintiffs also submits that the plaintiffs filed an appeal before the Additional District Judge, Malpura, District Tonk but appellate court vide judgment and decree dated 04.06.2016 dismissed the appeal filed by the plaintiffs. Learned counsel for the plaintiffs also submits that trial court as well as appellate court had committed error because there was no need to give two months’ notice to the Nagar Palika before filing the suit because plaintiffs wanted to get declared the disputed land as a public way and cancellation of the regularization order as well as lease deed were ancillary reliefs. So, order dated 28.04.2016 passed by the trial court as well as judgment and decree dated 04.06.2016 passed by the appellate court be set aside. Learned counsel for the defendants has opposed the arguments advanced by learned counsel for the plaintiffs and submits that trial court as well as appellate court rightly came to the conclusion that before filing the suit, provision of Section 304 of Rajasthan Municipalities Act, 2009 was to be complied with and notice ought to have been given to the defendants before filing the [2025:RJ-JP:20405] (3 of 3) [CSA-452/2016] suit. Plaintiffs wanted to get cancelled the regularization order as well as registered lease deed. So, trial court as well as appellate court rightly came to the conclusion that wihout giving the notice, present suit was not maintainable. So, present appeal filed by the plaintiffs be dismissed as no substantial question of law is made out. I have considered the arguments advanced by learned counsel for the plaintiffs as well as learned counsel for the defendants. It is an admitted position that by way of present suit, plaintiffs wanted to get cancelled the regularization order as well as registered lease deed issued by the Nagar Palika in favour of defendants. As per Section 304 of Rajasthan Municipalities Act 2009, it is mandatory to give two months’ notice prior to filing the suit. Contention of learned counsel for the plaintiffs is that main relief for declaration of public way is not tenable because main relief of the plaintiffs is for cancelling the regularization order as well as registered lease deed. So, in my considered opinion, trial court as well as appellate court rightly came to the conclusion that two months’ notice was condition precedent for filing the suit. So, no substantial question of law is made out for admitting the appeal. So, present appeal filed by the plaintiffs being devoid of merit, is liable to be dismissed, which stands dismissed accordingly. Pending application(s), if any, stand(s) dismissed. (NARENDRA SINGH DHADDHA),J Jatin /69