AKSHAY KUMAR SHAHA Vs. BHAJAGOBINDA SHAHA

JUDGEMENT

(1.) This appeal arises out; of a suit, which was instituted by the plaintiff, for a declaration that the defendants had no right to erect a permanent structure on the land in suit, for a mandatory injunction directing the demolition of the structure to the extent that it had been erected and for other reliefs. During the pendency of the suit, a temporary injunction was issued against the defendants, restraining them from proceeding with the erection of the structure, but it was eventually withdrawn, it being ordered that the defendants were at liberty to erect the building at their own risk.

(2.) The land in suit is a part of C.S. dag No. 869, which appertains to a four annas hisya of kismat Babnaparha diha. The kismat lies in four touzis, Nos. 11, 5151, 5152 and 5153. The plaintiff has taken a patni of touzi No. 5151, and has thus acquired a four annas share of the four annas hisya of the kismat. His case was that the defendants are in occupation of the said C.S. dag No. 869 as tenants-at-will.

(3.) The defendants resisted the claim upon three main grounds: They alleged that they hold a permanent tenancy under the plaintiff and the other co-sharers patnidars in respect of the said C.S. dag No. 869 and also several other plots, and that they had as such tenants erected permanent and semi-permanent structures without any protest from their landlords, which had been in existence from a long time, and that the present structure was but in replacement of an old one. Nextly, they alleged that in 1298 B.S. their predecessors obtained a mirash taluk to the extent of three annas four gandas share from the zamindars of touzi No, 5152, and that C.S. dag No. 869 is one of the plots specifically allotted to them in that share; and also that in 1327 B.S., they obtained a patni settlement of five annas odd share from, the zamindars of touzi Nos. 11 and 5153; and that they are thus cosharers with the plaintiff to the extent of nine annas and odd share. Thirdly, they say that they are settled raiyats in the village and in that capacity too they are entitled; to erect permanent structures.