ANIL BARAN DEOTY Vs. MUNICIPAL COMMISSIONERS OF HOWRAH

JUDGEMENT

(1.) THIS appeal is directed against an appellate decree of the district Judge of Howrah reversing a decree of the Munsif by which he allowed a claim of compensation against respondent Howrah Municipality. It appears that the appellants, plaintiffs filed a suit in the Munsif's Court praying for a mandatory injunction against the respondent defendant for restoring the disputed land in its original position or alternatively for payment of adequate compensation for the said and The plaintif case in the lower court was that they were the owners of holding no. 5 0 Natabar pal Road Howrah and that the defendant Municipality acquired the disputed land, about 3 Kattas chhataks and 13 sq. feet in area, for excavating an outfall drain over this holding. The plintiff made repeated demands for compensation for the disputed land but the defendant failed to pay the same Hence a suit was filed in the munsif' s Court for the reliefs stated above.

(2.) THE defendant Municipality had stoutly denied its liability to pay any compensation for the land. Its defence in brief was that "the outfall drain was already there but it was being obstructed by the owner of the holding. Ultimately the defendant municipality took the land by issuing a notice and the drain was cleared and further dugout and the plaintiff's low land was raised, at their request, with the sweepings and drain cuttings in exchange of the drain lands. An amount of Rs. 9161/- was expended by the municipality for the said operation and as per an oral agreement with the owners the claim of compensation was set off against the cost of raising the land.

(3.) THE learned Munsif decreed the suit allowing a compensation of Rs. 9,631/ -. For the present however the plaintiffs ware allowed an amount for which court fees were paid and the remaining amount was to be recovered by a seperate proceeding under Order 20 Rule 12 Civil procedure Code. On appeal the ld. District. judge reversed the decree. He held that the suit was barred by limitation and that the plaintiffs were entitled, if the suit was not so barred to a compensation of, Rs. 470/- only being the difference of compensation once assessed by the Municipality and the alleged cost of raising the plaintiff land as per oral agreement.