PANCHANAN MONDAL Vs. SULATA ROY MONDAL

JUDGEMENT

(1.) The plaintiffs have alleged that plaintiff No. 1 is husband of plaintiff No. 2. By a sale deed dated 18-12-1955, her husband purchased .7 decimals of land out of the plot No. 70 together with the structures standing thereon from one Bholanath Saha. Plaintiff No. 1 purchased two cottahs of land from the plot No. 73 from defendant by a kobala dated 4th July, 1959. The adjacent plot No. 71 and the remaining portion of the plot No. 73 belong to defendant and they lie to the west of the plaintiffs' land. Defendant had a small ditch on her land and there was a private passage to the east of that ditch. To the east of that ditch the plaintiffs' land is located. On that land the plaintiffs have a wall. The parties are on strained relations. With a view to causing mischief to the plaintiffs, the defendant deepened that ditch and converted it into a tank by steeply carrying out the excavation. As a result of such steep excavation, the lateral support of the plaintiffs' wall and building was lost. In the middle of Sravan, 1372 B. S., a portion of the plaintiffs' land and western portion of their wall became engulfed by the defendant's tank. The vacant space of the west of the plaintiffs' wall also subsided into the tank. The plaintiffs' request in this respect was ignored and the defendant did not rebuild the damaged portion of the wall and reclaim the portion of the land which had subsided into the tank. The suit is for confirmation of possession on declaration of the plaintiffs' title to the disputed land and for a mandatory injunction directing the defendant to rebuild the portion of the plaintiffs' wall, which had crumbled down, and to reclaim that portion of the land, which had gone down into the tank.

(2.) Defendant filed a written statement denying the plaintiffs' allegations. It has been alleged inter alia that the plaintiffs had no such lateral support and the ditch was not converted into a tank. The story of the wall crumbling down and of the portion of the plaintiffs' land going down into the tank is false. No loss was caused to the plaintiffs.

(3.) The learned Munsif issued a writ of local investigation. The pleader commissioner reported in the plaintiffs' favour. Accepting that report and relying on the plaintiffs' version the suit was decreed. Defendant went up on appeal. The appellate court reversed the learned Munsif's findings and dismissed the suit. Hence this second appeal by the plaintiffs: