PRATIVA CHANDRA ROY Vs. HEM CHANDRA NASKAR

JUDGEMENT

(1.) THE decision of this appeal by the plaintiff from an appellate judgment and decree of reversal turns on the consent or lack of consent by the appellant to the construction of a bundh (an embankment) by the defendants, the respondents here,-a bundh which, as is now clear, has encroached upon the appellant's land, plot no. 259, a bheri, to the extent of 151/2 cottahs. The respondents' land is plot no. 256, another bheri. "256" is on the immediate west of "259".

(2.) IT is hardly necessary to restate facts either finally disposed of or no longer insisted upon. Suffice it to say that the 151/2 cottah land in controversy here does appertain to plot no. 259 which belongs to the appellant. In other words, the appellant has title to aforesaid land,

(3.) ON that the court of first instance and the court of appeal below are agreed, What they are not agreed on is the question of consent to the construction of the bundh. The first court holds that no permission was taken ever of the appellant before the construction was made. More, there was no joint survey either before that; and if there was any, the respondents having erected the bundh in the manner they have done have not adhered to what was agreed upon. The court of appeal below holds the opposite. It takes into consideration: joint survey at the instance of both the parties before the construction of the bundh and the fixing of pegs demarcating the boundary between "256" and "259", as it finds the appellant withholding the report of his amin, the respondents having spent Rs. 20,000 or Rs. 25,000 for the bundh (which they would not have done without the consent forth coming), the bundh proving helpful to the appellant's bheri, and the appellant himself having been there with a view to watching whether or no the bundh in the making was trenching on his land. Having done so, the appellate judge finds on "the balance of probabilities" that the appellant had consented to the erection of the bundh encroaching 151/2 cottahs of his land (page 51 of the paper-book)