AKHAURI HALIWANT SAHAY Vs. DEO NARAIN MALI

JUDGEMENT

(1.) This is an appeal by the plaintiffs against the dismissal of their suit for recovery of possession of a certain portion of plot No. 230 after removal of a chabutra erected thereon by the defendants for sitting and for tying their cattle.

(2.) The plot was recorded as gairmazrua-am and is an ahar. Plaintiffs are the sixteen-anna proprietors of the tauzi, and their case was that the land is public land and was used for storing the irrigation water of the plaintiffs, and that the act of the defendants in erecting the chabutra after filling up a part of the ahar had put the plaintiffs, the other residents of the mauza and the public to loss and caused difficulty in irrigation, etc.

(3.) According to the plaintiffs, the defendants encroachment on the ahar was effected in 1843 Fasli, about a year before the suit. The defendants denied any encroachment and claimed to have erected the chabutra and been in possession of it for more than twelve years. They also urged that the suit was barred under Order 1, Rule 8, Civil P.C. A pleader commissioner found that there had been an encroachment over the ahar to the extent of 1 katha 2 dhurs and 8 dhurkis. The trial Court dismissed the suit, holding that the plaintiffs had been out of possession for more than twelve years, whether as landlords or as members of the public. As to the objection based on Order 1, Rule 8, the learned Munsif held that though the plaintiffs had obtained permission to proceed under that provision of the law, the case was one of a private nuisance, in the removal of which the plaintiffs were interested as they had zerat lands in the village to irrigate from the ahar, and that therefore the plaintiffs were entitled to maintain the suit in their "own personal capacity.