AJIT KUMAR MODAK Vs. KANCHAN LATA BARAL

JUDGEMENT

(1.) HEARD and perused lower Court records. Plaintiffs suit for declaration of title over 2 decimals of land, being part of plot Nos. 648 and 649. described in detail in Schedule A to the plaint and for recovery of possession over 1 decimal thereof, described in Schedule B was decreed. Plaintiff was directed to be put in possession over the said I decimal land after removing the encroachment by demolishing the disputed boundary wall, indicated in red line in the sketch map attached to the plaint. The said decree was affirmed by the Court of appeal below. Admitted position was that out of total 6 decimals of land of plot Nos. 648 and 649 (3 decimals each) the recorded tenant Rekho Hart transferred 4 decimals to Sunwanti Devi by registered sale dead (Ext. 2) dated 8.5.1970. Rakho Hari further transferred 2 -1/2 decimals to Ajit Kumar Modak, defendant No. 1 on 16.6.1980. Both plaintiff and defendant No. 1 purchased 2 decimals each from Sunwanti Devi by two different sale deads executed on 21.1.1986. Plaintiff had already his house from before over plot No. 644, which was lying on the boundary of plot Nos. 648 and 649. Plaintiff did not make any construction over the aforesaid 2 decimals, which he purchased on 21.1.1986. On the other hand, defendants, who purchased total 4 -1/2 decimals of land in the aforesaid two plots made constructions thereon. A dispute arose between the parties when the plaintiff alleged that his 1 decimal land was encroached by them. During pendency of the suit, a survey knowing Pleader Commissioner was appointed, who on scientific measurement submitted a detailed report (Ext. K). The Commissioner found area of plot Nos. 648 and 649 to be 3 -1/2 decimals each on spot. The existing boundary wall upto 1.25 chain in length was situated within the area of the defendants and remaining portion of the wall towards southern side measuring 50 links in length was within the purchased area of the plaintiff. Portion of land purchased by the plaintiff was still vacant and out of that an area of 25 x 10 links, i.e. 250 sq. links in plot No. 648 and 25 x 30 links, i.e., 750 sq. links in plot No. 649 was under possession of the defendants. In the sketch map prepared by the Commissioner defendants possession over the plaintiffs purchased area in plot Nos. 648 and 649 was shown in red colour. However, it appears that there is some confusion in - operative part of the impugned judgment and decree wherein reference of the disputed boundary wall indicated in red line in the sketch map attached to the plaint has been made, which on spot is not exactly in accordance with the report of Pleader Commissioner (Ext. K). Hence, it is clarified that the plaintiff will be put in possession over 1 decimal land, after demolition of only portion of disputed boundary wall towards southern side measuring 50 links in length as shown in red colour in the sketch map (Ext. G) and the impugned judgments and decrees are modified to this extent only. Accordingly, this appeal is disposed of with the aforesaid observation and modification.

(2.) APPEAL disposed of accordingly.