BHILLOO PANDEY Vs. SHEORAJI

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit foe possession after demolition of certain construction. The plaintiffs were five persons. They claimed that the defendant had, in building a house on his land, encroached upon the piece o land which belonged to them by making constructions thereon.

(2.) Various defences were raised; one of them being that the plaintiffs were barred by the doctrine of acquiescence and estoppel. The trial Court found that part of the land in suit which belonged to plaintiffs 3 to 5 was undoubtedly encroached upon by the defendant-appellant in constructing the house. It also held that there was no estoppel but he said that since the house had been constructed six or seven years before the suit without protest the case was a fit one in which damages would meet that ends "of justice. It, therefore, passed a decree in favour of plaintiffs 3 to 5 for recovery of a sum of Rs. 250 and dismissed the suit so far as plaintiffs 1 and 2 were concerned. Against this there was an appeal by the plaintiffs 3 to 5 in the lower appellate Court. The lower appellate Court, while affirming the findings of the trial Court, held that damages were not the proper remedy, the plaintiffs should be allowed possession over their land. He, therefore, decreed the suit for possession.

(3.) The defendant has now come up in second appeal to this Court. On his behalf the findings recorded by the two Courts below have not been challenged. He has, however, urged that the trial Court's view of the law was right and that, in view of the fact that the house had been constructed six or seven years before the suit without any protest having been made by the plaintiffs-respondents, the plaintiffs-respondents were not entitled to get possession over the land and the plaintiffs could only obtain damages and not possession.