BINAPANI PAUL AND ANR. Vs. BIMAL PRATIVE SAHA AND ORS.

JUDGEMENT

(1.) This appeal by the defendants arises out of a suit Title Suit No. 123 of 1970)by the plaintiff for declaration of title, recovery of possession and damages and also for perpetual injunction restraining the defendants from doing any further illegal act prejudicial to the property of the plaintiff on the ground that part of the southern bank of the lank of the plaintiff has entered into the bed of the tank of the defendants and that his (Plaintiffs) puca drain, pillars, betel nut trees were also damaged due to removal of the southern bank of the tank of the defendants by excavation. The decision of the village-baithak was also not honoured.

(2.) The suit was resisted mainly on the ground that bank of the tank of plaintiffs got depressed due to rainfall and other natural causes. The defendants denied having removed the southern bank of their lank by digging the earth. It was also alleged that constant obnoxious smell was being emitted from the plaintiffs sanitary latrine situate on the eastern bank of the northern tank and all the filthy materials were passing through the drain emitting bad smell which affected the health of the family members of the defendants.

(3.) U pen the pleadings the learned trial court framed nine issues and decided all the issues in favour of the plaintiffs and decreed the suit. The appellate court also upheld the judgment of the learned trial court. Hence, this Second Appeal.