Decided on January 07,1952



Narayan, J. - (1.) This is an appeal by the plaintiffs, and it arises out of a suit in which the prayer was for the removal of certain encroachments alleged, to have been made by the principal defendant No. 2 over a tank which is said to be the joint property of the plaintiffs and the defendants and which has been recorded in the Survey as plot No. 1534. The plaintiffs also sought a permanent injunction restraining the principal defendants from filling up the tank and from further changing its character. This tank originally belonged to the common ancestors of the plaintiffs and the defendants, and though the other properties were partitioned between the plaintiffs and the defendants, this tank was left joint or 'ijmal'. According to the plaintiffs' allegation they and the defendants had been in joint possession of the tank, but the principal defendants filled up a portion of the tank and converted about 3 bighas out of it into paddy fields. The disputed portion of the tank has been shown in the plaint as schedules 2 ka and 2 kha. After the plaint had been filed a commissioner was appointed for inspecting the locality and after the commissioner had submitted his report the plaintiffs made a further prayer in the plaint, for removal of a dam constructed by the principal defendants by the side of the tank.
(2.) The suit was resisted by the principal defendant No. 2, and his contention was that the disputed paddy fields were outside the bed of the tank and had been prepared by him long ago. According to him these paddy fields were prepared more than 12 years prior to the institution of the suit and to the knowledge of the plaintiffs. Alternatively, the defendant contended that even if the fields were found to be within the tank, the defendant by converting a portion of it into paddy fields, had not exceeded his right. Regarding the dam, the allegation of the defendant was that because a streamlet to the east of the tank was causing considerable damage to the tank, he, with the consent of his co-sharers, constructed the dam.
(3.) The Courts below have concurrently found that the dam was constructed by the defendants 15 or 16 years prior to the institution of the suit and that it had been constructed for protecting the tank from being spoilt by the now of the water of the streamlet which is to the east of the tank, and that consequently the defendant, by constructing the dam, had not acted to the prejudice of the right of the plaintiffs in the tank. They have further found that the disputed portion, namely, Schedule 2 ka and 2 kha of the plaint, had silted up long ago and that the defendants, after it had silted up, prepared paddy 'khets' in it. The contention of the defendant that the disputed land was outside the tank has been negatived by both the Courts below.;

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