MUNICIPALITY OF SHOLAPUR Vs. TULJARAM KRISHNASA CHAVAN

JUDGEMENT

(1.) This is an application by the Sholapur Municipality against the order of the learned District Judge of Sholapur purporting to act under Section 198 of the Bombay City Municipalities Act, XVIII of 1925, and directing the Sholapur Municipality to pay compensation for 2997 square feet at the rate of Rs. 1-12-0 per square foot to opponent No. 1 Tuljaram Krishnasa alone, and holding that opponent No. 2 Gangappa Sangappa's mortgage was vitiated by the doctrine of lis pendens, inasmuch as he took the mortgage with notice of a prior agreement by the owner with Tuljaram during the pendency of a suit by the latter.

(2.) Opponent No. 1 Tuljaram was the owner of the land in suit, and demanded compensation from the Municipality for the land encroached upon by the Municipality at the rate of Rs. 2-8-0 per square foot. The Chief Officer with the consent of the Managing Committee referred the matter to arbitration under Section 198, Sub-section (1), of the Bombay City Municipalities Act, 1925. The arbitrators gave an award allowing Rs. 1-12-0 per square foot. The award did not specify the number of square feet but the area mentioned in the proceedings related to 2997 square feet. Tuljaram then made the present application to the District Court demanding the amount as determined by the panchas, and prayed for an order compelling the Municipality to pay the amount due to the applicant at Rs. 1-12-0 per square foot as determined by the panchas with regard to the area of 2997 square feet. The general body subsequently resolved that 860 square feet covered by the drain were to be acquired, and deposited in Court the amount due in respect of the 860 square feet resolved to be acquired. Opponent No. 2 Gangappa claimed the money as the mortgagee of the property from the predecessor-in-title of the applicant Tuljaram.

(3.) The learned District Judge held that at the time when the negotiations were going on and when the panchayat was constituted, the intention of the Municipality was to acquire an area of 2997 square feet in order to open up and widen the roads in the locality, that it was impossible to say that the applicant's acceptance of the rate fixed by the panchas was not induced by the consideration of the resulting improvements to his remaining property, and that it was not open to the Municipality to withdraw from the acquisition of 2997 square feet, and that the award was binding on both the parties not only in respect of the rate but also in respect of the area. With regard to opponent No. 2 the learned District Judge held that Gangappa had both actual and constructive notice of the agreement in favour of Tuljaram and that the mortgage of Gangappa was affected by the doctrine of lia pendena, and ordered interest at the rate of six per cent for the remaining portion of the compensation until payment or deposit in the Court and ordered the Municipality to bear the coats of Tuljaram.