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Judgment
Narendra Kumar Jain, J.—Heard learned Counsel for the parties.
Plaintiff/Respondent filed a suit for declaration and permanent injunction to the effect that his date of birth is 04.07.1951 and not 04.07.1946 as recorded in his service record, therefore, it be delcared that Plaintiff''s date of birth is 04.07.1951 and the Defendants may be restrained not to retire him treating his date of birth as 04.07.1951.
The suit was contested by the Defendants by filing written statement. Issue No. 1 was as to whether Plaintiff''s date of birth is 04.07.1951 or not. The learned trial Court after appreciation of evidence of both the parties, decided Issue No. 1 in favour of Plaintiff and consequently, decreed the suit.
The question of date of birth is purely a question of fact and there is concurrent finding of fact by both the Courts below in favour of Plaintiff/Respondent, which cannot be interfered with by this Court in second appeal u/s 100 CPC.
The submission of learned Counsel for Appellants is that the only point involved in this appeal is about notice u/s 271 of the Rajasthan Municipalities Act and since notice was not given before filing the suit, therefore, the suit was not maintainable and it was liable to be rejected only on this ground alone, however, during the course of arguments, learned Counsel for Appellants fairly and frankly admitted that the said controversy relating to notice u/s 271 of the Rajasthan Municipalities Act has been resolved by the Division Bench of this Court on reference in S.B. Civil Second Appeal No. 173/86- Suresh Chandra & Dhan Raj v. Shri Hanuman Prasad S/o Shri Ganga Ramji and Ors., vide order dated 09.09.2005. The operative portion of the Division Bench''s judgment has been reproduced in the order dated 26.07.2006, whereby the said second appeal was decided finally by this Court (reported in 2006(4) WLC(Raj.) 452). The Division Bench held that giving of notice is a mere procedural requirement, the same does not go to the root of jurisdiction in true sense of the term.
In view of above, there is no merit in the submissions of learned Counsel for Appellants and the second appeal, being devoid of any merit, is liable to be dismissed.
No substantial question of law is involved in this second appeal, the same is, accordingly, dismissed in limine.
ORDER
ORDER S.B. Civil Misc. Stay Application No. 2664/2010
Since the main appeal itself has been dismissed, therefore, this stay application does not survive and the same also stands dismissed.