BEHARI JI MAHARAJ Vs. DAUJI MAHARAJ

JUDGEMENT

(1.) This is a defendant's application in revision Arising out of a suit for removal of an encroachment. The parties are two idols which are installed in two adjacent temples. The plaintiff's temple is in the south-west corner of the defendant's temple. The southern and western walls of the defendant's temple were reconstructed or repaired and the plaintiff-opposite party's case was that in the process of reconstruction or repair encroachment of 1 foot in the width and 14 feet in length had been 'made into the land belonging to the plaintiffs temple. This would be at the south-west corner of the defendants temple. The defence was that there has been no encroachment.

(2.) The decision depended mostly upon measurement. The parties made a statement in court. The statement was that if the defendant's southern wall was 25 feet or less in length from the Government Takia the plaintiff's suit will stand dismissed, but if the wall were longer the plaintiff's suit will be decreed. This statement was made with reference to a map No. 27A. In the map the southern wall of the defendant's temple was shown as 26 feet in length. In accordance with the statement of the parties an amin was deputed, who found that the length of the defendant's temple wall was more than 25 feet. On receipt of this report the defendant presented an application to the court that a decree be not passed, in terms of the earlier statement of the parties because it was vitiated by reason of a mutual mistake. The mistake alleged to have been made was that both the parties thought that in the map the southern wall of the defendant's temple was shown as 25 feet only whereas in fact it was shown to be 26 feet.

(3.) The plaintiff did not agree that there was any mistake. The trial court held that there was a mutual mistake and set aside the statement of the parties and the measurement made by the amin in pursuance of the statement, and ordered the case to proceed on the merits.