W. IBOTOMBI SINGH Vs. TH (O) THAMBALNGOU DEVI

JUDGEMENT

(1.) This Regular Second Appeal is directed against the judgment and order dated 27.3.14 passed by the learned District Judge, Manipur East in Civil Appeal No.10 of 2013/67 of 2013 affirming the judgment and order dated 24.6.2013 passed by Civil Judge, Sr. Divn.- II Manipur East in Judl. Misc. Case No.159 of 2013 (arising out of O.S.No.20/11) whe-reby the learned Judge, by exercising power as enshrined under Order 12 Rule 6, decreed the suit by declaring right, title and interest of the plaintiff over the land measuring 1028.352 sq ft (0.023 acres) which on being encroached by the defendant and had amalgamated it with the land appertaining to Dag No. 1045 (New 4102) and for restoration of that land to the plaintiff by demolishing the structures constructed over that land.

(2.) The plaintiffs brought a suit bearing OS No.20 of 2011 making out a case that late Th. Ibohal Singh and late Th. Kshetri, both brothers, were recorded pattadars of a piece of land appertaining to CS Dag No. 1046/4103(New), under Patta No.355 (Old/313 (New) measuring an area of .26 acre situated at Village No.42 Keishamthong. The plaintiffs, who are the widows and sons of late Th. Ibohal Singh, inherited .13 acre, which had come to their share of late Th. Ibohal Singh. On the other hand, a piece of land measuring .10 acres appertaining to CS Dag No.1045/4102(New) situated adjacent south of the plaintiffs' land was belonging to one Moiran-gthem Ningol Jyoti Devi, the mother of the principal defendant, who during her life time gifted the said land measuring .10 acre to the principal defendant and thereby it was recorded in the revenue record in the name of the defendant. In course of time, the defendant started constructing a Temple over a piece of land which was being used as a path for egress and ingress which was part of the suit land and thereby the plaintiff filed a demarcation Case before the S and SOIII Manipur on 7.6.2008 praying therein to demarcate the land belonging to the plaintiff measuring .26 acre. On measurement being taken, it was found that the area of land of the plaintiffs is only 11143.88 sq ft instead of 11325.60 sq ft (which is equivalent to .26 acres) and thereby land was found less of 181.72 sq ft (.00417 acre) which had been encroached upon by the defendant. Thereupon, the plaintiffs requested the defendant to stop constructing structures over that piece of land but the defendant went on with the construction and thereby the plaintiff filed a suit with prayer, inter alia, to declare right, title and interest of the plaintiff over .00417 acre which has been encroached by the defendant and also for recovery of the land and for demolition of the structures. Further case which was incorporated in the plaint by way of amendment is that when some dispute over the piece of land measuring .10 acre appertaining to Dag No.1045(4102 New) belonging to the principal defendant and the land measuring .29 acre appertaining to Dag No.1044 (4101 new) belonging to Moiran-gthem family they went for demarcation of the land by the Revenue staff of the Survey and Settlement Officer whereby a demarcation Case No.39/2008 was instituted for demarcation of the land. In that proceeding the measurement was taken in the manner as agreed upon that .10 acre of land of Dag No. 4102 be measured from northern extremity whereas .29 acre of land of Dag No.4101 be measured from the southern extremity and accordingly it was done. On taking measurement of said area, the land was earmarked for each of the parties and after taking out that area of land measuring .05 was found in excess which they agreed to divide it into two equal halves and thereby the land appertaining to 4102 belonging to the defendant which had an area of .10 acre got increased by .025 acre and thereby it measured as .125 acres and similarly the land of Moirangthem family which was measuring .29 acre got increased by .025 and total came as .315 acre. Accordingly, they got an agreement executed to the effect as stated above on 15.5.2008 and got it registered on 19.5.2008. Further case is that during the pendency of the suit by virtue of an order passed by the court at the instance of the plaintiffs, an Advocate Commissioner was appointed for spot inquiry who was to be assisted by the Survey & Settlement Officer. While holding the spot inquiry, the measurements were taken not only of the land of the plaintiffs and defendants but also of the other lands of different dags and it was found that the principal defendant has been possessing .024 (1028 Sq ft) in excess whereas land almost of that area was found in shortage in case of the plaintiffs.

(3.) The case of the main defendant as has been made out in the written statement is that one Moirangthem Chaoba (since died) was the owner and possessor of the land measuring one Bigha, 1 Katha, 17 Lasha (equivalent to .44 acres) since 1908/1909 which continued till 1960. The said land appertaining to different Dags came into possession of defendant as well as Moirangthem brothers namely, Nodi, Mani and Gouramani Singh. Since some disputes arose in between them, a demarcation case bearing No.39/Survey and Settlement Office III/08 was filed in which the area, which the defendant was possessing and owning, was determined as 31.5 acre. Accordingly, boundary was put in. Further, it has been pleaded that the claim of the plaintiffs that their land measuring .26 acre got lessened to the extent of 181.72 sq.ft (.00417 acres) is based on wild and baseless allegations. Further, it has been pleaded that before making claim of area being diminished to the extent of .26 acres, the plaintiffs should have gone for measurement of the land just adjacent to the north of the land belonging to heirs of Late Th. Mohan Singh to find out as to whether the original area of .52 acre is intact or it got increased. Further case is that whatever construction has been undertaken, that has been undertaken over the passage of 5 ft running parallel to the boundary of the plaintiffs and thereby question of encroaching the land of the plaintiffs does not arise and that defendant is in possession over the suit land from his childhood and this fact has been well within the knowledge of the plaintiffs.