DIP NARAIN SINGH Vs. JAGMOHAN AHIR

JUDGEMENT

(1.) The facts of the suit out of which this appeal has arisen are practically all admitted and are as follows: The plaintiffs and defendants Nos. 9 to 12 are the appellants in this Court. Defendants Nos. 9 to 12 being away from the district were made pro forma defendants. They and the plaintiffs possessed the same right in the property in suit. The predecessors-in title of the plaintiffs and defendants Nos. 9 to 12 mortgaged plot No. 1763 which was their tenancy (presumably tenancy at fixed rate) for a period of 20 years in favour of the predecessors-in-title of defendants Nos. 1-8. This mortgage was executed on the 27 of June, 1901 and was redeemed on 22nd of June, 1921. The plaintiffs came to Court with the allegation that some six months before the institution of the suit the defendants encroached upon a portion of plot No. 1763 and built a house upon the same. They asked for the demolition of the construction and for the restoration of the site to its original position. Of course, the suit involved a claim for the recovery of possession.

(2.) The defence was that the building was ancient one, that no portion of the land had been encroached upon and that the suit was due to the fact that the defendants refused to allow a redemption of the mortgage before the expiry of the term.

(3.) The Court of first instance found that 1? dhurs of land has been encroached upon by the defendants building and that the defendants constructed the building some 12 years before the institution of the suit. On these findings the learned Munsif gave a decree for Rs. 10 by way of compensation and dismissed the rest of the claim. On appeal this decision was affirmed.