RAM SARUP Vs. SHAMBHU DAYAL

JUDGEMENT

(1.) The land of the parties to the suit is continuous. In between, there was a party wall the width of which was 15 inches. The defendant demolished his side of the wall and in rebuilding the same he encroached upon the plaintiff's land to the extent of 2 inches. The result was that the present width of the defendant's will is 10 inches in place of its original width which was only 7 inches.

(2.) The suit was, instituted for demolition of the wall for a mandatory injunction and for possession of 2, inches of land belonging to the plaintiffs which had been encroached upon by the defendant.

(3.) The suit had a chequered career. The Court of first instance dismissed the plaintiffs suit presumably upon the ground that the claim was of a trivial nature. The lower appellate Court reversed the decree of the trial Court and gave the plaintiffs a decree for Rs. 50 by way of compensation. This Court on second appeal came to the conclusion that the suit was not one for a mandatory injunction simplicitor but was also for possession. It held that under these circumstances, the Courts below had no jurisdiction to refuse relief to the plaintiffs for possession over 2 inches of land which had been encroached upon. We are of opinion that the view of the learned single Judge of this Court was clearly correct where the defendant in rebuilding his side of a party well which belonged jointly to the parties encroaches upon the plaintiffs land to the extent of 2 inches in width, and the suit is not one for mere mandatory injunction but for possession the Court is bound to grant a decree for possession to the extent of the plaintiffs land which has been encroached upon. This appeal is without force and is dismissed with costs.