ISWAR PRASAD JALAN Vs. TINSUKIA MUNICIPAL BOARD

JUDGEMENT

(1.) Heard Mr. G.P. Bhowmick, learned Senior counsel assisted by Ms. M. Kalita, learned counsel for the appellant.

(2.) This appeal under section 100 CPC is directed against the first appellate judgment and decree dated 07.05.2019 passed by the learned District Judge, Tinsukia, in TA No.3/2018, thereby dismissing the appeal and affirming the judgment and decree dated 20.12.2017 passed by the learned Civil Judge, Tinsukia in T.S. 32/2014 thereby dismissing the suit.

(3.) The learned Senior counsel for the appellant has submitted that the appellant is an owner of multi-storied RCC building in Tinsukia town. It is projected that there was no pucca drain around the building and instead there was a kutcha drain and accordingly, during the monsoon season the water could not flow through the kutcha drain. Accordingly, in the year 1986, the appellant had installed 96 ft. long and 2 ft. wide hume pipe in the said kutcha drain by spending Rs.95,000/-. It is also submitted that the hume pipe was installed on verbal permission from the authorities and accordingly, the said Hume pipe drain continued to exist for last 14 years till last part of May, 2010 when the respondent i.e. Tinsukia Municipal Board had illegally dug out the hume pipe installed by the appellant and the drain was converted to a kutcha drain. Thereafter, between 02.08.2011 to 09.08.2011, the appellant converted the said kutcha drain into a concrete drain by spending Rs.3,55,400/- and accordingly, by issuing the notice under section 326 of the Assam Municipal Act, the appellant demanded a sum of Rs.4,55,400/- from the respondent in the Money suit filed by the appellant. The respondent contested the case and on the basis of pleadings, the following issues were framed for trial: