BINODINI DASH Vs. JANI JAGAYYA NARAYAN PRUSTY

JUDGEMENT

(1.) THIS second appeal is at the instance of the Plaintiff who has lost the suit in both the courts below. The suit was filed for recovery of the' area mentioned in the schedule of the plaint measuring 30 feet in width, 56 feet in length on one side and 61 feet in length on the other side, total measuring Ac. 0.12/16 cents. This area was under the wrongful possession of the Defendant whose land lies to the adjacent east of the land of the Plaintiff. Both the courts below decreed the Plaintiff's suit in part by holding that the Defendant is found to be in forcible possession of 1'.7' feet in width and 61 feet in length. The Plaintiff being aggrieved with the part -decree filed the second appeal. The Defendant preferred a cross -objection which has been also dismissed. Against this, the Defendant has also challenged the dismissal of the cross -objection.

(2.) HEARD Mr. S.K. Padhi, learned Counsel for the Appellant and Mr. M.K. C. Rao, learned Counsel for the Respondent.

(3.) BUT at one point of time, Mr. Rao, the learned Counsel for the Defendant, submitted that, since there is a building standing on the encroached portion of the land, it will not be equitable for the court to direct recovery of possession by demolishing the house standing on it This fact of Defendant's having a building over the disputed land, is strongly denied by Mr. Padhi and it is further submitted that at the time of filing the suit there was no building over the plot. Be that as it may, admittedly it has been proved that the Defendant without any authority has possessed the area in question that belonged to the Plaintiff. It has not been brought out by the Plaintiff by any material that any serious prejudice will be caused to her if she is not delivered possession in respect of this small area, though Mr. Padhi submits that in any case the Plaintiff should be given delivery of possession of the decreed area since, according to Mr. Padhi, a trespasser is not entitled to any equity under law.