AMBAVATI PANDEY Vs. SUDHIR GHOSE

JUDGEMENT

(1.) HEARD Sri S. C. Tripathi learned counsel for defendant/appellants and Sri Saurabh Srivastava holding brief of sri M. B. Saxena, learned counsel appearing for plaintiff/respondent.

(2.) THE appeal is in connection with the rights of the parties in respect of a strip of open land which is a 5ft. wide passage.

(3.) THE Maharaja and Maharani of kasimbazar were the owners of a piece of land which included the above 5 ft. wide passage in dispute (hereinafter referred to as the "disputed passage" ). They transferred a part of the said land vide two sale deeds dated 19-3-1960 and 29-3-1960 (ext. 4 and 2 respectively) in favour of the plaintiff Dr. J. M. Ghosal now represented by his heirs and legal representatives. The said sale deed provided that the vendors shall keep open a strip of land 5 ft. wide on the western side of the land so transferred to the plaintiff for all times to come and the plaintiff shall have unrestricted right of way over it. After about a week thereafter the Maharaja and maharani of Kasimbazar transferred another portion of land and even the disputed passage vide sale deed dated 28-3-60 (ext. 3) in favour of one Vishwanath Sahu but with a covenant that said Vishwanath Sahu shall for all times to come keep the disputed passage open to sky and shall allow unrestricted right of way over it to the plaintiff Dr. J. M. Ghosal and one Devi Prasad who was the owner of another adjoining piece of land. The said Vishwanath Sahu transferred his rights in the land and the disputed passage so purchased by him in favour of Smt. Mohan Devi and Smt. Ram Pyari vide sale deed dated 31-5-63 (ext. A-2) who in turn transferred the same to the defendants through sale deed dated 4-12-63 (ext. A-1 ). Thus the defendants stepped into the shoes of aforesaid vishwanath Sahu and acquired rights over the disputed passage subject to the covenant contained in the sale deed dated 28-3-60 though no such condition was imposed under the last sale deed.