JUDGMENT

Lawrence H. Jenkins, C.J. - The litigants in this suit are two neighbouring house-owners, the plaintiff being the owner of No. 17, Ezra Street, and the defendant of No. 16 Ezra Street, in the town of Calcutta, and the point in dispute is whether a wall which in December 1908 or, February 1909 was erected by the defendant in the immediate proximity of the plaintiff's premises was or was not wrongful encroachment entitling the plaintiff to relief in this Court.

2. The plaintiff alleges that the wall was built on his land, and that it therefore constituted a trespass. The defendant on the other hand denies this, and he goes on to plead that even if it was built on the plaintiff's land, still it occupied the site of an old wall of his on that land which had stoops there for more than thirty years; and so he says, any claim by way of trespass now fails.

3. The case came in the first instance before Mr. Justice Fletcher who decided in the defendant's favour, his view being that the plaintiff had failed to establish that the site of the wall as it now stands was the property of the plaintiff. On the second point he expressed no definite opinion.

4. We first then have to see how far t