The parties to the suit out of which this appeal arises, the Plaintiffs and the Defendants, are joint proprietors of a putni taluk. They are respectively holders of the taluk in equal shares. The case made in the plaint was that the Defendants had, in spite of the protest of the Plaintiffs, dug a tank on the land, and the prayer was for a declaration of their title to a half share of the land, and for an order directing the Defendants to fill up the tank and to restore the land to its former state. The Defendants' case was that they had only repaired a previously existing tank on their ancestral rent-free land.
The Court of first instance held that the Defendants had failed to prove that the space covered by the tank was rent-free, and though it did not find that substantial injury had been caused to the Plaintiffs, gave them a decree according to their prayer, with the exception of the area covered by the original tank on the mere ground that their right had been interfered with.
On appeal the lower Appellate Court found that there had been no injury to the property by the excavation of the tank and that on the contrary there had been improvement. The Subordinate Judge therefore held on the authority of the case of Joy Chander Rakhit v. Bipro Churn Rakhit(1) that the Plaintiffs had no right to have the tank filled up or restored to its former condition.
It has been contended before us at considerable length that case has virtually been overruled by the judgments of their lordships of the Judicial Committee in the cases of Watson & Company v. Ram Chand Dutt(2) and Lachmesionr Singh v. Manowar Singh(3). It seems to us that as far as they go the Privy Council cases and the other case refered to are against the Appellants.
A reference has further been made to the cases of Shadi v. Anuh Singh(4) and Najju Khan v. Intiazuddin(5). We think that these cases rest on circumstances not resembling those of the case now before us; and in any case we should feel pressed by the decisions of this Court. The facts of this case appear in truth very nearly to resemble those in the case of Joy Chunder Rakhit v. Bipro Churn Rakhit.
The only matter which we think may perhaps require interference on our part in order to prevent any possible future misunderstanding relates to the decree of the lower Appellate Court. The learned Subordinate Judge, after saying that the Plaintiffs' suit ought to be dismissed, directs that the appeal be decreed, that the lower courts' decree be set aside, and that the Plaintiffs' suit to have the tank filled up be dismissed. We think however that the Plaintiffs are entitled, on the findings of both the courts below on the question of title, to have a declaration that they have a joint title with the Defendants in the land in dispute to the extent of an 8 anna share. It is not perfectly clear from the decree that such a declaration has been made, although it appears from the judgment of the lower Appellate Court that the Subordinate Judge agreed with the Court of first instance upon the question of title.
The decree of the lower Appellate Court will therefore be so far varied that there will be inserted in it an express declaration of the joint title of the Plaintiffs to the extent of 8 annas.
For the rest the appeal must be dismissed with costs.
S.C.S
Appeal dismissed.