JUDGMENT :

SOUMEN SEN, J.

1. The battlefield of Kurukshetra has entered the arena of this civil litigation in a very small but significant way concerning "only" 250 sq. ft. allegedly in unauthorized possession of the appellant, a society, devoted to Lord Krishna.

2. The learned Single Judge found that the dharma is with the plaintiff and the appellant to be in wrongful possession of the area in question and accordingly passed a decree for eviction and mesne profits. The appellant was held to be a trespasser in respect of the suit schedule property.

3. Before we advert to the submissions made on behalf of the parties, we would like refer to relevant facts for proper appreciation of the dispute between the parties.

4. One Priyambada Devi was the original owner of 3 Albert Road. During her lifetime, she executed a will dated 6th April 1926, by which she bequeathed 'ka' and 'kha' Schedule property at 3 Albert Road, Kolkata in favour of Saileswar Singh Roy and Lila Mohan Singh Roy both since deceased. The premises of 3 Albert Road was eventually divided in 3A Albert Road and 3C Albert Road.

5. The Will gives description of the extent of properties bequeathed in favour of the beneficiaries with sufficient particulars.

6. The description of 'ka' Schedule properties bequeathed in favour of Lila Mohan Singh Roy is:-

"In the city of Calcutta, the three storied house called Raj Castle situate at No.3 Albert Road together with rent, free land lying there under, western portion of the main building, the (share) to the extent of 8/-(eight) ana and in the said premises, stable, house etc, and out house on the western side and the play ground on the western side, that is, the grassy field."

(emphasis supplied)

7. Similarly 'kha' schedule properties bequeathed in favour of Saileswar Singh Roy is described in the schedule to the Will as:-

"In the city of Calcutta, the three storied building called Raj Castle situate at No. 3 Albert Road, together with the rent free land lying thereunder, out of that the eastern portion of the main building (share) of the extent of 8 (anna) and of the eastern portion the out house as well the stable and coach house." (emphasis added)

8. On 26th May, 1971 Lila Mohan and Sunil Kumar executed a deed of declaration to record their respective possession of the properties bequeathed in their favour under the will. At the relevant time Lila Mohan was in exclusive possession and enjoyment of the western portion of 3, Albert Road and Sunil Kumar Singh Roy was in possession and enjoyment of the eastern portion of 3, Albert Road. The relevant portion of the deed of declaration is stated below (pg. 93 of paperbook):-

"14. As the western portion of the premises No. 3, Albert Road, Calcutta as mentioned in Schedule "ka" of the will of the late Sm. Priyambada Devi was made over to Lila Mohan Singh Roy by the Executors and Executrix to the estate of the said late Sm. Priyambada Devi without executing any deed or documents and similarly the Eastern portion of the premises No. 3, Albert Road, Calcutta as mentioned in Schedule "Kha" of the will of late Sm. Priyambada Devi was made over to Late Saileswar Singh Roy by the said Executors and Executrix without executing any document, we have agreed that to avoid any misunderstanding between our respective heirs and legal representatives in future, we should clearly demarcate the said eastern portion as mentioned in schedule "Ka" and the western portion as mentioned in schedule "kha" to the will of the said late Sm. Priyambada Devi which vested on Lila Mohan Singh Roy and Saileswar Singh Roy and through him to Sunil Kumar Singh Roy.

15. We declare that we have demarcated the western and eastern portion of the premises No. 3, Albert Road as mentioned in Schedule "Ka" and "Kha" to the will of the said late Priyambada Devi by creating and construction boundary wall eight feet in height between the said western and eastern portions and running from north to south as shown by dotted yellow lines on the m