HANUMANTHAPPA Vs. SHANKARAPPA HEMAGIRIYAPPA ROKHADE

JUDGEMENT

(1.) HISTORY of the litigation: these appeals are filed against the judgment and decree passed in r. S. A. No. 2 of 2000 on the file of Civil Judge (Senior Division), ranebennur arising out of the judgment and decree passed in O. S. No. 17 of 1983 on the file of First Additional Munsiff Ranebennur. The appellant in R. S. A. No. 425 of 2003 is the second defendant in the suit. The appellant in R. S. A. No. 569 of 2003 is the first defendant in the suit. The first respondent is the plaintiff who filed the suit for a declaration that the resolution No. 200, dated 23-10-1978 and resolution No. 1ll, dated 29-2-1980 are null and void, not binding on the plaintiffs and to declare that resolution No. 172, dated 8-9-1973 is valid and to seek delivery of possession of plot No. 38 (a) from the first defendant-municipality which is said to be in occupation of defendant 2 at the time of the suit.

(2.) THE municipal council offered non-residential plots to the public for construction of the tenements on lease basis for a period of 5 years. According to the terms of the offer, the allottee of the plot has to bear the construction cost of the tenement and for the first 5 years period there is no rent. The value towards the construction cost serves as consideration for the occupation of the premises for the first 5 years. Thereafter, the property is to be leased carrying monthly rents. The plaintiff claims that, he was allotted plot No. 38 (a) and defendant 2 allotted plot No. 38 (b ). Under resolution No. 172, dated 8-94973, the plaintiff is said to have deposited Rs. 11,000/- which fully meets the cost of construction as per the terms of the tender. It is the case of the plaintiff that the municipality dishonestly changed the identity of original plot No. 38 (a) by re-description as 38 (b) and vice versa and thus dishonestly allotted most advantageous corner site tenement in favour of the 2nd defendant by describing it a? 38 (b ). In fact the said site is originally 38 (a) to be allotted to the plaintiff. Therefore, he contends that the resolutions passed by the municipality allotting site No. 38 (a)described as 38 (b) is illegal and not binding The suit plot No. 38 (a)bearing the boundaries described as in the suit schedule to be allotted to the plaintiff.

(3.) THE first defendant has stoutly denied the case of the plaintiff and submits that under the terms the total cost of construction was not assessed and payment of additional value of construction cost was subject to escalation and variation in rates. Therefore, notice was issued to the plaintiff to make good Rs. 800/- under Ex. D. 2 towards additional cost of construction. The same was not paid. Therefore, the plaintiff has no right to seek allotment. The first defendant also submits that plot No. 38 (a) was not occupied by the plaintiff to avoid unnecessary vacancy. For the first five years it is allotted to the third defendant and thereafter to the 4th defendant The said allotment came to be made on account of the default on the part of the plaintiff. The allegation that the identity of the plots have been tampered with and interchanged is denied. It is also contended that the suit is bad for want of notice under Section 284 of the karnataka Municipalities Act. Besides plea of res judicata and plea of limitation is taken.