NARAYAN Vs. RAJA LAXMAN RAO

JUDGEMENT

(1.) THE facts of this case are sufficiently clear from the judgments of the two lower Courts. The defendants have now come up on second appeal to this Court against the judgment and decree of the lower appellate Court.

(2.) THE first question for decision is what was the exact license or grant to the appellants. Their contention in this connexion is that no definite portion of the wall for the building of the staircase' was given and that they were entitled to take as much of the wall as was reasonable for the purpose. Such a contention seems to me an utterly impossible one on the evidence on record. It is true that D. 11, the permission granted by the manager of the Senior Bhonsla Estate was vague in the extreme, but the words used clearly imply that only a small portion of the breadth of the wall was to-be used for the purpose of building the staircase The plaintiff Raja Laxmam Rao (P. W. 3) and. his brother were then separate and the defendants took the wise course of also obtaining permission) from the former. Prom this point of view, the plaintiff and his brother were co-owners of the wall in question and not joint owners. The permission granted on behalf of the present plaintiff expressly stated that only two feet of the wall were given. An attempt has been made to suggest that the permission so-given contained a patent ambiguity. This contention I find it utterly impossible to accept. Very clearly the reference could only be to a breadth of two feet along the wall Which adjoins the defendant's house, and there cannot be a shadow of doubt but that the defendants knew from the first that they were only granted permission to construct their staircase ' on a space two feet broad on the northern side of the wall. The oral evidence on record, which indeed it is hardly necessary to allude to, on any reasonable construction of the terms of D. 8 and D. 11, makes the position sufficiently clear and there cannot be the slightest doubt but that the defendants from the first knew that it was intended by the plaintiff', and agreed upon by the parties, that they should only get a space along the wall of 2 feet in breadth. There was thus only an express license to this extent and admittedly the defendants have encroached far beyond it.

(3.) THE contention that the suit is barred by limitation, as it was, in effect, one for injunction, seems to me an utterly baseless one. The present suit is by an owner for possession of his wall which has been deliberately encroached upon and built upon by the defendants. The suit, in short, is essentially one for possession and the incidental fact that under the law applicable to such a case in this country, it is usual to give to the defendants an opportunity of removing the building they have constructed on the land encroached upon in no way makes the suit one for injunction. The defendants, if they so choose, need not remove the construction in question and, if so, it will fall to the owner of the wall to deal with it. The suit is clearly one for possession to which limitation of 12 years applies and the plaintiff is clearly entitled to the decree for ejectment which he has obtained.