BADRIDAS GOENKA Vs. GOPAL JEW THAKUR

JUDGEMENT

(1.) PLOTS 369 and 370 belong to the plaintiffs. Plot 371, belonging to the defendant, lies adjacent to plaintiffs land to the southwest. Plaffs. purchased their land by a registered sale deed (Ex. 3) on 30-4-1012. A Dharmahala was constructed near about the year 1916 as appears from the plan (Ex. 4 ). The dispute relates to the south-western wall of the plaff's. kitchen block. A two storeyed kitchen building stands on the wall. The wall had cornices to the western side and built on sufficient foundation protruding by four to five inches over the ground surface. Defendants cut the disputed wall on 7-6-58 and 22-6-58 to the extent of 7' x 10' x5' and cut the cornices and plaster and white-washed the same. Plffs. claim title to the wall which they have constructed when the original Dharmashala was built and also by acquisition of title by adverse possession due to long, continuous and undisturbed posession in their own right, title and interest for over 40 years. Defendants assert that they constructed the wall and have been in possession of it all through. Thus plaintiffs' title to the wall was challenged. In paragraph 16 of the written statement, the specific case of the defendants was set up as: the southern boundary wall of the plaffs' building was raised adjoining the defendant's northern boundary wail and they are two separate walls though adjoined to each other. Similarly the western boundary wall of the kitchen part of plaffs. building was raised just adjoining the eastern boundary wall of the defdts'. building and they are two separate walls though adjoined each other Hence the plaintiffs neither have nor can they claim any right over the disputed portion of the eastern boundary wall of the defendants.

(2.) THE learned trial court accepted, plaffs'. case in toto and rejected the defence version. It held that the disputed wall was constructed by the plaffs. and that they had acquired title to the wall by prescription, for being in undisturbed possession thereof in their own right, title and interest for more than the statutory period. In appeal, the learned District Judge took a contrary view on the first finding and held that the defendants constructed the disputed wall and the plaffs. had no title to it. As to the question of acquisition of title by adverse possession, he found as follows: an alternative case of adverse possession is no doubt made in paragraph 10 of the plaint but no issue on that point has been framed. The learned lower court has not given any alternative finding on this question. He accordingly did not go into the question of acquisition of title by the plaffs. by prescription.

(3.) MR. Pal raised two contentions: