Decided on August 10,1973



- (1.) THIS second appeal is by the plaintiffs. Their suit has been dismissed by the courts below.
(2.) PLAINTIFFS filed their suit for recovery of the suit land from the possession of the defendants who had encroached thereupon by constructing a wall and putting up a fence and amalgamating the same with their own plots, for permanently restraining defendant No. 1 from opening and using the window which he had opened in his wall.
(3.) THE facts which are no longer in dispute are the plaintiffs are the owners of plots Nos. 1451, 1452 and 1453 appertaining to khata No. 48 in mouza ramkrishnapur. The defendants are the owners of plots Nos. 1437 and 1438 which adjoin respectively plaintiffs plots Nos. 1453 and 1452 to their west. Plaintiffs have their residential house on plot No. 1453 and the defendants have their residential house on plot No. 1437 to its adjoining west. Plots Nos. 1451 and 1452 which lie to the adjoining north of plot No. 1453 contains the bari of the plaintiffs. Similarly plot No. 1438 which is adjoining north of plot 1437 is the bari of the defendants. Defendants have put up a pucca wall which runs from north to south encroaching a portion of plaintiff's plot No. 1453, and thus stands on a part of plot No. 1453. From the northern extremity of this pucca wall a green fence runs to further north in a straight line with it encroaching portions of plots Nos. 1451 and 1452 belonging to the plaintiffs. This green fence is of big and small trees like siju, orakha, tamarind and ambada trees. The age of these trees, as found, will be 10 to 15 years. A commissioner was deputed to make measurements of various plots to find out if there was encroachment and the extent of such encroachment. He submitted a report, which has been accepted, stating that the defendants have encroached 2 x 90 links of plot No. 1453 on which the pucca wall stands, and 3 other encroachments of 2 x 70 links, 6 x 100 links and 16 x 32 links at different points of plots 1452 and 1451 of the plaintiffs. The plaintiff's case is that these encroachments were made in the year 1959 or 1960 and want recovery of the same in addition to the other consequential reliefs as stated above.;

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