SRIBATSA PANDA Vs. SITARAM PADHI

JUDGEMENT

(1.) THE unsuccessful defendant in the courts below is the appellant. This appeal arises out of a suit filed by the plaintiff against defendant for declaration of title to the suit land as described in Schedule A-2 to the plaint and as shown in the commissioner's map, and la the alternative in Schedule A-1 to the plaint or any area that will be found by the court to have-been encroached, and recovery of possession of the same from the defendant after removal toy the latter of the structure, if any, on the suit land put up by him at his own cost and by ejecting the defendant and other fit, proper and equitable reliefs--all as prayed for in the plaint.

(2.) THE material facts as stated in the court are these: In 1947 the plaintiff is said to have taken temporary lease of Sambalpur Nasal plot No. 1608/2 with an area of 17581 sq. . ft. from the Government. On March, 4, 1947 the defendant also took a registered lease of immediate adjacent (to the north of the plaintiff's plot) plot No. 1608/1 with an area of 16483 sq. ft. On April 7, 1947 the defendant is said to have taken delivery of possession of his plot. The plaintiff's case is that the defendant had wrongfully constructed on the plaintiff's plot 1608/2. It is said that in 1956 the plaintiff suspected encroachment on his land by the defendant. Thereafter at the Instance of the plaintiff the Nazul Patwari was deputed to measure the land. On measurement he found that 2216 sq. ft. out of the plaintiff's plot had been encroached by the defendant. On October 30, 1957 the plaintiff filed the suit for reliefs aforesaid. In defence the defendant pleaded that there was no encroachment as alleged. In the first instance the trial, court appointed a commissioner. The Commissioner's report was objected by both parties and so rejected by the trial court. Thereafter another Commissioner was appointed by the trial court with the consent of both parties. The second Commissioner found that the defendant had encroached 2340 sq. ft. and accordingly the plaint was amended. Bath the courts below decreed the suit in favour of the plaintiff on the finding that there was encroachment of 2340 sq. ft. as found in the report of the second commissioner which was accepted by both the Courts. Hence this second appeal by the defendant.

(3.) THE points urged on behalf of the defendant appellant are these: The second! commissioner's report is not correct. It was contended that calculations on which the Commissioner based his finding are arithmetically not correct. The defendant contended that the extent of the area of alleged encroachment having not been correctly found, the case should be sent back on remand. The defendant further submitted that in view of the position that the alleged encroachment, if any, being bona fide the defendant should not be called upon to remove the encroachment and that the defendant Is only liable for damages. Apart from merits, the defendant also took a point, for the first time in this second appeal, that in view of the position that the plaintiff asked for removal by the defendant of the-structure, if any, on the suit land put up by the defendant, a separate court fee must also be paid for the relief of removal of the structure under Article 17a of Schedule II of the Court-fee Act.