M. RATANCHAND CHORDIA AND ORS. Vs. KASIM KHALEELI

JUDGEMENT

(1.) THE suit out of which this Letters Patent Appeal arises was instituted by the respondent, who will be referred to as the plaintiff in this judgment for a declaration that he has a right of way across the pathway marked ABCD in the plan attached to the plaint and described in Schedule 'A' to the plaint, and, for a permanent injunction restraining the appellants, who will be referred to as the defendants, from interfering with his rights and for a mandatory injunction to demolish the wall marked X Y in the said plan.

(2.) THE learned Third Assistant City Civil Judge who tried the suit held in favour of the plaintiff. On appeal by the defendants before the Principal Judge, City Civil Court, Madras, the judgment and decree of the trial Court were reversed and the suit was dismissed. There was a Second Appeal to this Court by the plaintiff which was heard by Kailasam, J. The learned Judge reversed the judgment and decree of the lower appellate Court and restored that of the trial Court. He however, granted leave and hence this appeal has been preferred under Clause 15 of the Letters Patent by the aggrieved defendants.

(3.) WE shall now set out briefly the title to the properties known as " Rushkrum " and "Khaleel Mansions". The entire property which was known as Nawab's Gardens originally belonged to the Princess of Arcot. She leased out the property under Exhibit A -4 dated 20th November, 1905, in favour of Mr. and Mrs. Thomas Robert Frost. The property so leased out was called Rushkrum and it bore the number 1/35, Mount Road in the Corporation Register. One Agha Mohamed Khaleel Shirazee purchased this property from the Princess of Arcot on 30th August, 1910, under the conveyance Exhibit A -5 in the case. Khaleel Shirazee, after purchasing the property, made applications to the Corporation of Madras for re -constructing and remodelling the property. The premises now known as Khaleel Mansions was put up by him during the years 1923 and 1925. So there was a common owner owning the property "Rushkrum" and the subsequently constructed property " Khaleel Mansions". Khaleel Shirazee effected a settlement of his properties in favour of his sons under Exhibit A -2 dated 1st April, 1925 - The plaintiff, who is one of the sons of Khaleel Shirazee, obtained under this settlement the property "Rushkrum" lying behind Khaleel Mansions and which constituted old Nos. 1/35 -A and 1/35 -B. The present numbers are 35/1 and 35/2. The old numbers in respect of Khaleel Mansions were 1/35 and 1/35 -C and its present number is 35. " Khaleel Mansions ",was settled in favour of another son of Khaleel Shirazee, one Abbas Khaleel. Khaleel Mansions buildings were in two blocks and the passage A B C D lies centrally in between these blocks and that was the opening through which people frequenting " Rushkrum " used to pass and re -pass. Abbas Khaleel became an " evacuee " he having left for Pakistan and his property Khaleel Mansions described in the plaint Schedule 'B' was declared to be an evacuee property under the Administration of the Evacuee Property Act, 1950. The property vested in the Custodian of Evacuee Property and also in the Central Government by appropriate notification under the Displaced Persons (Compensation and Rehabilitation) Act XLIV of 1954 to the provisions of which we shall make a detailed reference a little later.