The plaintiff must prove exclusive ownership and unreasonable use or damage to the property to succeed in a property dispute case.

JUDGMENT :

In this second appeal, the unsuccessful plaintiff having suffered from the dismissal of her suit filed against the defendant-respondents in the first appeal filed by the defendant-respondents calls in question the judgment and decree passed by the lower appellate court in reversing the judgment and decree passed by the trial court.

2. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial court.

3. The plaintiff’s case is that the defendants are her adjoining neighbours and they have their land adjacent to one another. The plaintiff is the owner of the land covered under plot nos. 2008 and 2012 measuring Ac.0.055 dec. and Ac.0.108 dec. respectively. The defendants are the owners of land under plot no. 2015 measuring Ac.0.090 decimals adjoining the land of the plaintiff as above on its east. The plaintiff claims to be having a pucca wall on the eastern extremity of her land which is said to be the wall dividing the land of the plaintiff on one side and defendants on the other stating the wall to be the boundary wall. The plaintiff next claims the said wall to be exclusively owned by her and meant for her exclusive user and it is asserted that the defendants have no manner of right and interest over the said boundary wall.

4. It is alleged that the defendants unauthorizedly constructed their latrine on the side of the wall towards and over their land encroaching the compound wall of the plaintiff and have dug a pucca soak-pit in connecting the latrine. It is stated that the soak-pit touches the boundary wall of the plaintiff. The next allegation is that the defendants have unlawfully excavated a pit adjoining boundary wall weakening the lateral support of the boundary wall giving rise to the development of cracks over there, further resulting an apprehension that at any time the boundary wall may get raised to the ground. It is alleged that because of such unauthorized and mischievous construction of the soak-pit of the latrine, the foul water from the soak pit, is leaking and percolating to the land of the plaintiff causing nuisance and to the annoyance of the plaintiff, which is also hazardous to the sanitation. The pit so done by the defendants is said to be causing water logging and thus it has also been a nuisance. It is further alleged that the defendants having filled up sand and earth adjoining the boundary wall, the rain and drain water are over-flowing from the premises of the defendants to the land of the plaintiff.

5. With the aforesaid pleadings, the plaintiff claims the following reliefs:-

“7. (a) the defendants may be directed to remove the unauthorized construction of the latrine encroaching upon the compound wall within a specific time fixed by the court; in default, the court may remove the plinth and superstructure of the latrine constructed over the compound wall and restore the common wall to its original position as existed before encroachment and illegal structure;

(b) mandatory injunction may be issued against the defendants to remove the soak-pit and the trench excavated illegally adjacent to the compound wall within time stipulated by the court; in default it may be executed through the court.”

6. The defendants while traversing the plaint averments from the beginning denied the claim of the plaintiff that the boundary wall exclusively belongs to him. It is stated that such boundary wall was in existence since long being constructed by Balaram Mishra, the then Marfatdar of defendant no. 1 about 50 years prior to the institution of the suit and further it is claimed to be standing very much over the defendants’ land under plot no. 2015. They further state that the latrine and soak-pit have also been constructed long prior to the suit way back in the year 1940 and are not at all the new constructions as alleged. The other allegations with regard to the flow of water from the soak-pit to the la