JUDGMENT :

HARISH TANDON, J.

1. The instant Second Appeal is filed by the defendant-appellant assailing the findings made by the Trial Court as well as the appellate Court on this score that both the Court below have misconstrued and misinterpreted the various provisions of the Indian ELECTRICITY ACT and the TELEGRAPH ACT wherein the power is conferred upon the authority to fix a poll and the transformer while undertaking an electrification of the locality on the consent of the owners/occupiers of the said property. It is an undisputed fact that the electrification programme was undertaken at Mouza Sangonua under the supervision of Assistant Engineer, Belda, Rural Electrification Camp Office, West Bengal State Electricity Development Corporation Ltd. Admittedly the electrification is completed and it is not in dispute that several polls as well as the transformers are affixed on the LR Plot no. 299.

2. The plaintiff-respondent filed a suit claiming an ownership in respect of 51 decimal Bastu land comprised in LR Plot no. 70 at Mouza Sangonua which they acquired by way of inheritance and their names are also recorded in the Record of Rights. Apart from the same there is a 24 decimal of agricultural land comprised in Plot no. 229 which is also acquired by the plaintiffs through their predecessor who purchased the same on the basis of the sale-deed dated 19.06.1978. It is averred that at Plot no. 229 the plaintiffs-respondent have constructed a Smriti Mandir where the defendant-appellants have illegally installed several electric posts and the transformer covering the said mandir without taking any permission or consent from them. It is further averred in the plaint on 12.08.2008 when the defendant/appellants undertook to construct poles and the transformer, the resistance was offered but they did not pay any heed to it and continued to make such construction thereat. On the basis of the aforesaid facts several reliefs were claimed in relation to the right, title and interest over the aforesaid plot of land, permanent injunction restraining the defendant-respondent from creating any obstruction in peaceful enjoyment and possession of the suit property and also the mandatory injunction to remove such electric polls and transformer installed thereat.

3. The defendant-appellant took a defence that while undertaking a rural electrification programme the said mouza was to be electrified under the supervision of the defendant-appellants and since no complaint nor any resistance was offered, the polls and the transformers were installed at the said plot of land which is within the power of the authority. It is further sought to be contended that Section 51 of the Indian ELECTRICITY ACT , 1910 which is retained in Section 164 of the ELECTRICITY ACT , 2003 empowers the defendant-appellant to exercise any of the powers which the Telegraph Authority possesses in respect of placing of the lines and the posts and therefore in exercise of such power the polls and the transformer was affixed as the plaintiff-respondent never raised any objection and in fact, gave consent for the same.

4. The Trial Court decreed the suit not only declaring the right, title, interest and possession of the plaintiffs-respondent but also permanently restrained the defendant-appellant from interfering with the peaceful right, title and interest and possession of the plaintiff-respondent in respect of the suit property and further passed a decree in the mandatory form to remove the electric post and the transformer from the suit property.

5. Assailing the said judgment and decree of the Trial Court the defendant-appellant filed the appeal before the Additional District Judge, 7th Cou