SUGGA DEVI Vs. PRAMOD CHOUDHARY

JUDGEMENT

(1.) THIS appeal has been preferred against the judgment and decree dated 29.9.1995 passed by the 2nd Additional District Judge, Khagaria, in Title Appeal no. 19 of 1994 whereby and whereunder the judgment and decree passed by the Additional Munsif, Khagaria, in Title Suit no. 17 of 1992 has been reversed.

(2.) THE plaintiff -appellant filed the suit with the allegation that the boundary wall of the purchased land of the plaintiff wherein her residence is situated had been demolished by the defendant, who are next door neighbours and came in possession by right of purchase subsequent to that of the plaintiff and constructed a Chhajja and opened up a window causing encroachment over the lands of the plaintiff and also created construction in possession of the plaintiff over her residence in her purchased land. The defendant contested the suit denying all the allegations of the plaintiff. During the proceeding of the suit before the trial court survey knowing pleader commissioner was appointed to find out the encroachment as alleged, if any, but the pleaders commissioner submitted a report not in accordance with the direction of the writ issued to him and as such, the report of the pleader commissioner was rejected. Then the suit proceeded on the basis of oral evidence and also documents filed by both the parties. On consideration of the evidence on record, the trial court found that the plaintiff 'sland has been encroached by construction of Chhajja and by opening up of a window towards the plaintiff 'sland and ordered for removal of the encroachment. Against that order an appeal was preferred. The appellate court also on consideration of the trial court judgment, without independently going through the evidence adduced by the parties, came to the finding that the allegations of encroachment is very negligible as the same is 15" in width and 64" in length and on the basis of a single Bench judgment of this Court, the encroachment being a trivial in nature he had reversed the judgment of the original court. Hence, this Second Appeal.

(3.) THUS , the second appeal is hereby allowed by remanding the case to the appellate court after setting aside the appellate judgment with the direction and observation as made above. In the facts and circumstances, no order as to costs.