B.V. JAGANNATHA Vs. COMMISSIONER, CITY MUNICIPAL COUNCIL

JUDGEMENT

(1.) Plaintiffs second appeal. Appellant instituted O.S. No. 211 of 2005 before the II Additional Civil Judge (Junior Division) and JMFC, Bhadravathi for a direction to the defendant to allot alternate suitable site within the Town Municipal Council (TMC), Bhadravathi or in the alternative to determine compensation being the value of site No. 157/1 in Sy. No. 91/2 due to formation of Municipal Road by encroaching upon the said site. That suit, after contest, was dismissed by judgment and decree dated 27-3-2008 following which the plaintiff preferred R.A. No. 34 of 2008 along with an application under Order 41, Rule 27(b) of Civil Procedure Code, 1908 for permission to adduce additional evidence, whence the Presiding Officer, Fast Track Court, Bhadravathi by judgment and decree dated 23-7-2010 dismissed the appeal. Hence, this second appeal. The case of the plaintiff in a nutshell is that, he purchased a site No. 157/1 in Sy. No. 91/2 Ward No. 10 of Hosamane Extension, Bhadravathi measuring 29' + 2472 x 50' under a registered sale deed dated 27-7-1985 executed by one K.P. Gangadhara, S/o late Appukutty since deceased. That Appukutty purchased the said property under a registered sale deed dated 3-1-1968 executed by the CMC. It was the allegation of the plaintiff that in January 2003 when he visited the location of his site, was unable to identify the site and when made a representation to the CMC, there was no reply. On coming to know that the defendant formed a road in a portion of his site during the year 2003 without notice to the plaintiff and on the basis of the Revenue Inspector's Report that the measurement of the site was diminished to 14' x 26', O.S. No. 211 of 2005 was instituted. Defendant entered appearance and resisted the suit by filing written statement denying the title of the plaintiff and the execution of the sale certificate by the President, CMC, Bhadravathi, and that the entries in the Municipal Record did not have presumptive value or that the new road was formed by encroaching upon the plaintiffs site. In addition, it was contended that the documents produced by the plaintiff were fabricated and the suit was not maintainable in the light of Section 283 of the Karnataka Municipalities Act, 1964. The Trial Court in the premise of pleadings of parties framed as many as 10 issues and after a trial recorded a finding that there was no material to establish that the defendant formed a road by encroaching upon the portion of the suit schedule property, nevertheless having accepted the plaintiffs plea that he was the owner of the suit schedule property dismissed the suit.

(2.) Plaintiff preferred an appeal insofar as it relates to denial of relief of alternate site or compensation, along with an application under Order 41, Rule 27(b) of CPC for additional evidence. The lower Appellate Court having heard the appeal on its merit as well as the application, framed points for consideration and rejected the I.A., on the premise that the additional documents sought to be produced by the appellant did not further his case as he had failed to establish the encroachment by the CMC and that the box drain formed in the encroached portion would be of "no importance" to answer the first point in the negative while concurring with the reasons, findings and conclusions arrived at by the Trial Court, to dismiss the appeal.

(3.) This appeal though listed for admission, with the consent of the Learned Counsel for the parties, finally heard and disposed of by this order.