LAKHAN SAHU Vs. SURJI TELIN

JUDGEMENT

(1.) Plot No. 1644 measuring 1 Katha 2 dhurs and containing one brick-built house with a tiled roof, and plot No. 1645, having an area of about 1 Katha with a Gola house thereon, both contiguous and situate in village Mohamadpur Baro, belonged to one Bansu Sah father of plaintiff No. 1 and maternal grand-father of plaintiffs Nos. 2 and 3, which, on Bansu's death, went into the plaintiff's possession. The plaintiffs sold plot No. 1645 with the Gola house to Fucho Sah, defendant No. 1 and subsequently mortgaged the other plot, No. 1644, together with the brick-built house to Mt. Kamli, who was the wife of Fucho Sah. The plaintiffs obtained a decree against Mt. Kamli for redemption of the mortgage and for possession with mesne profits. In execution of the said decree in Execution Case No. 42 of 1949, a pleader commissioner was appointed to measure the land and deliver possession of plot No. 1644. After measurement, the commissioner found that Fucho Sah and his wife had encroached upon an area of 6 dhurs out of plot. No. 1644 and had amalgamated the same with the adjacent plot No. 1645, by extending the construction on the latter plot over the former. The plaintiff demanded removal of the encroachment, but they declined. Thereafter, the plaintiffs instituted the Present suit for recovery of possession of the said 6 dhurs of land out of plot No. 1644 and also claimed damages to the extent of Rs. 650 on account of the bricks and building materials lying from before on plot No. 1644 and misappropriated by them with mesne profits, impleading Fucho and his wife as defendants.

(2.) The defendants denied encroachment on plot No. 1644 and claimed the alleged encroached portion as part of their plot No. 1645. They denied further that there was a brick-built house on plot No. 1644. They also denied the removal and misappropriation of the building materials.

(3.) Fucho and his wife died one after another during pendency of the suit, and their heirs and legal representatives, the appellants before us, were substituted in their place, and they adopted the written statement filed by Fucho and his wife.