DWIJAPADA CHATTOPADHAYA Vs. SADANANDA BHATTACHARJEE

JUDGEMENT

(1.) The present second appeal arises out of a suit for declaration of title to the land in dispute, locally known as pagar and for possession. The principal defendant is the appellant before us. The appeal is directed against the judgment and decree dated 23, 1957, passed by the Subordinate Judge, Birbhum, in Title Appeal No. 195 of 1955 affirming, subject to modification, the judgment and decree dated May 14, 1955, passed by the Munsif, First Court, Bolpur, in Title Suit No. 28 of 1955.

(2.) The suit out of which the present appeal arises was instituted by three sebaits of certain deities on March 25, 1953. The suit was one for declaration of the plaintiffs' title to the land measuring 5 cottas described in sch. kha to the plaint and to the land measuring 1 cotta described in sch. ga to the plaint, for confirmation of their possession of kha schedule land, for permanent injunction restraining the Defendant Nos. 1 to 4 from dispossessing the plaintiffs from the kha schedule land, for recovery of possession of the ga schedule land by evicting Defendant Nos. 1 to 4, for an order directing Defendant Nos. 1 to 4 to fill up the ga schedule land or to pay Rs. 75 to the plaintiffs for that purpose and also for a permanent injunction restraining Defendant Nos. 1 to 4 from making any cut or from discharging the water on C.S. Plot No. 750 towards the north. Schedule ka to the plaint comprises C.S. Plot Nos. 683 and 684 together with the lands mentioned in kha and ga schedules to the plaint. The dispute relates to the lands mentioned in schs. kha and ga.

(3.) To the contiguous south of the C. S. Plot Nos. 683 and 684 is the C. S. Plot No. 750. The principal Defendant Nos. 1 to 4 are in occupation of the northern portion of plot No. 750 and the proforma defendants are in occupation of the southern portion of the plot. To the west of C. S. Plot Nos. 750 and 683 there is a sort of a streamlet locally known as kandar. The lands of schs. kha and ga are locally known as pagar. Besides the question of title to the pagar another important question involved in the suit was the defendants' right to discharge surplus water of plot No. 750 towards the north over the pagar on to the lands of the plaintiffs. The suit was decreed in part and the learned Munsif passed the following order: Ordered that the suit be decreed on contest in part against the Defendant Nos. 1 to 4 and ex parte against the rest. Plaintiffs' title to the suit land, as shown by the Commissioner to be appertaining to C. S. Plot Nos. 683, 684, is declared. They do got possession of the ga schedule land, appertaining to C. S. Plot Nos. 683 & 684. Their possession in respect of the rest of the disputed land is confirmed. Plaintiffs' prayer for a direction upon the defendants to fill up ga schedule land is refused. The prayer for injunction is refused. Plaintiffs' title is found to be subject to defendant's right to draining out surplus water through the disputed pagar. Commissioner's map and report shall from part of the decree.