IRANI BASETTAPPA Vs. MUNICIPAL COUNCIL DAVANGERE CITY MUNICIPALITY

JUDGEMENT

(1.) O. S. No. 388/48-49 and O. S. No. 499/48-49 on the file of the Munsif of Davangere were brought by the Municipal Council Davangere City Municipality, and one Erani Basettappa respectively. In O. S. No. 388 of 48-49 the Municipal Council prayed for a declaration of its title to a vacant piece of land measuring 10 feet North to South and 100 feet East to west and for a permanent injunction restraining the defendant from putting up any construction on it or otherwise interfering with the rights and pos session of the plaintiff. In O. S. No. 499 of 48-49 the plaintiff Erani Easetappa prayed for a similar declaration that he was the owner of the same piece of land or in the alternative directing the Municipal Council to execute a sale deed conveying the same to him for the consideration of Rs. 500/- which had already been paid by him or for a proper title deed and for a similar injunction. Defendant 2 was impleaded in that suit as he was claiming some Interest in the site under a later grant from the Municipal Council. The Davangere Municipal Council, who will hereafter be referred to as the plaintiff, admitted in its plaint that by a resolution of the Council at a meeting held on 22-11-47, it had granted the site in question to Erani Basettappa, who will hereafter be referred to as defendant. But the resolution had been passed under some mistake and by a later resolution at a meeting held on 20-10-48 the earlier resolution was cancelled. The first resolution was communicated to the defendant on 1-12-47 and the defendant had deposited the value of the site later on. Subsequently, the later resolution was also communicated to the defendant on 17-11-48 and he could not therefore claim any rights in the site. Possession had not been given to him by the plain-tiff and he could not apply for permission, to build on it. His application for license had therefore been rejected, though somewhat late, but the same did not confer any right on the defendant to build, on the schedule site which was vested in the plaintiff and which continued to belong to the plaintiff and to which the defendant did not acquire any right in law. Moreover it was pleaded that the contract of sale of that space had to be completed by the same being reduced to writing and signed by the President, or Vice-President and two Councillors and sealed by the common seal of the Council if it was to have any validity, and as these formalities specified by Section 41(7), City Municipalities Act (Act 7 of 1933) had not been observed the defendant could not enforce any rights under the resolution.

(2.) The defendant pleaded that he had all along been in possession and was using the suit land for over 20 years, that he had applied to the Municipality for the grant of it, that a resolution Had been passed granting him the same, that the same was communicated to him and that in pursuance of it he had paid the entire purchase, money of Rs. 500/- and obtained a proper receipt therefor. He was permitted to take possession of the site and continued as owner thereof. He had applied for a licence to the Municipality for erecting a compound wall. As the Municipality had not replied within 30 days he had secured a statutory right to effect the construction and the subsequent resolution of the Municipality could not therefore affect him. With regard to the objection of the plaintiff based on Section 41(7), City Municipalities Act, he pleaded that the resolution recorded the required sanction of the Council and conferred title and the objection taken by the Municipal Council was not sustainable in law and even if that section applied, under Section 53-A, Transfer of Property Act, the plaintiff was debarred from claiming to dispossess the defendant.

(3.) The learned Munsiff who tried the suit did -not record any evidence. He heard arguments after marking as exhibits the two resolutions aforesaid. He upheld the objection of the plaintiff based on Section 41(7), Municipalities Act, and decreed the suit of the Municipal Council and dismissed the suit of Erani Basettappa. On appeal the Subordinate Judge of Chitaldrug upheld his decision. Erani Basettappa has filed these two second appeals which can be disposed of by a common judgment.