CHANDRA BHAN SINGH Vs. SHEO SHANKAR DECEASED LR

JUDGEMENT

(1.) This is a defendants second appeal from a decree directing the defendant appellant and the defendant -respondent to remove the construction which lay in plot No. 187 of village Atardiha in district Deoria. The site plan prepared by an Advocate Commissioner, paper No. 49 -C was made part of the trial courts decree. According to that site plan only the triangular portion denoted by the letters A F D lay within plot No. 187, while the rest of the construction shown by letters A B C F lay in plot No. 185. It may be here stated that of the entire construction A B C D the Portion A E F D was claimed by the plaintiffs to be an encroachment of plot No. 187 and out of that only the triangular half portion shown by letters A F D was found by the Advocate Commissioner to be in plot No. 187. The lower appellate court confirmed that decree; hence this second appeal.

(2.) THE plaintiffs case was that having purchased plot No. 185/1 the two defendants were laying foundations of their house and in the course of doing so, they had encroached upon the portion A B C D of the land of plot No. 187 of which they were the bhumidhars, having purchased the same for Rs. 600/ - from Moti Lal and Moti Chand, who were sirdars but had acquired bhumidhari rights before selling it to the plaintiffs.

(3.) THERE is the further fact that the Advocate Commissioner Sri Haribansh Prasad Misra arrived at three different results on the basis of the measurements made by him firstly on 18th March, 1966, secondly on 10th Nov. 1966, and thirdly on 24th March, 1967 which also shows that the measurements made by him were not absolutely reliable. According to his last report, which was confirmed by the trial court, the area encroached upon is triangular and diagonally half of that claimed by the plaintiffs. In fact the earth eastern corner of the defendants house could be said to be situate on the boundary between plots Nos. 187 and 185. The Commissioner has not specified the distance between FD DA and AF on the map prepared by him which forms part of the decree of the trial court. The decree of the trial court also does not specify the exact dimensions of the walls which are to be demolished according to the decree.