MEGHU MIAN Vs. KISHUN RAM

JUDGEMENT

(1.) This is an appeal by the defendant against the judgment and decree passed by the Subordinate Judge, Sasaram. affirming the judgment and decree of the Munsif 1st Court, Sasaram.

(2.) Tile appeal originally came before Chatterji, J. sitting singly who was of the opinion that in view of the unreported decisions of this Court in -- 'Mt. Uchaho Kuer v. Ramsatona Chaubey', Second Appeal No. 1967 of 1948 (Pat) (A) and Second Appeal No. 2288 of 1948 (Fat) (B). The case should be heard by a Division Bench and, therefore, it has now come before us for disposal.

(3.) The suit giving rise to the present appeal was one for the removal of certain encroachment made by the defendant upon the plaintiffs' land. The plaintiffs' case as alleged in the plaint is that they purchased the share of one Mahabir Pasi in a house in Mahalla Kila, Sasaram, and on partition of the house between the different co-sharers, they got, the western portion of the house which has been recorded as plot No. 1296 in the Municipal survey map. To the immediate north of plot No, 1296 lies plot No. 1293 which, according to them, is in their exclusive possession. Sometime back, they had constructed a tiled verandah in the land covered by portions of plots Nos. 1293 and 1296 which had been in existence for more than twelve years. Just on the west of plot No. 1293 and a portion ot plot No. 1296 is plot No. 1292 which admittedly belongs to the defendant. In the year 1946,' the defendant started building a house on this plot of land and in the course of that construction he wrongfully and illegally opened a window on the eastern side in the upper storey of his house and also a door on the ground floor in the eastern wall which opens on the land covered by plot No. 1293. He further projected his eaves towards the east on the land of the plaintiffs to the extent of about 1 1/2 cubits. It has been further alleged by them that the eastern wall of the defendant was constructed over a portion of plot No. 1293. Their case is that by the opening of the window towards the east, the privacy of their female apartment in the western portion of plots Nos. 1296 and 1284 is infringed and through the door opened on the ground floor they have been trespassing over their land just adjacent to it on the east and using it as a means of ingress to and egress from their house and hence the suit for the removal of the encroachments made by the defendant.