BISWANATH GHOSH Vs. PRAFULLA KUMAR GHOSH

JUDGEMENT

(1.) This Second Appeal is directed against the judgment of reversal passed by the learned Additional District Judge, 2nd Court at Howrah on 28.1.2005 in Title Appeal No.49 of 2003 reversing the judgment and decree dated 24.3.2003 passed by the learned Civil Judge (Junior Division), 4th Court at Howrah in title Suit No.180 of 1987. The respondent no.1/plaintiff filed a suit against the appellants as well as the proforma respondents nos.2 to 10, claiming his right to raise construction on the roof of the kitchen. He claimed such right by virtue of a deed of settlement dated 19th August, 1955 executed by one Dulal Chandra Ghosh, the admitted owner of the suit property.

(2.) The defendants contested the said suit by filing written statements by challenging the plaintiffs title and/or interest over the roof of the said kitchen. The defendants have also got settlement of different portions of the premises in which the suit premises situates, from the said Dulal Chandra Ghosh through a subsequent deed of settlement dated 27th September, 1957. Both the aforesaid deed of settlements were admitted into evidence. The settlement deed of 1955 was marked as Exhibit 1 and the other deed of settlement of 1957 was marked as Exhibit A. The title of Dulal Chandra Ghosh namely the common settlor both in the suit property as well as in the property settled with the defendants, was not disputed. The execution of those deeds by Dulal Chandra Ghosh was also not disputed. Even the grant of settlement of various properties mentioned in the said deed of settlement of 1955 excepting the roof right on the roof of the kitchen which is claimed by the plaintiff, is not disputed by the defendants.

(3.) Thus, the dispute in the suit relates to the conflicting claims of the parties regarding their roof right on the roof of the kitchen. Since the plaintiff claims such roof right on the basis of said deed of settlement of 1955, this Court is required to consider the said deed for ascertaining as to whether such roof right on the roof of the said kitchen was, in fact, settled by Dulal Chandra Ghosh in favour of the plaintiff or not. The defendants have proved the subsequent deed of settlement of 1957 to show that the settlor had no intention to settle the roof right over the roof of the said kitchen with the plaintiff. The defendants claimed that the settlor himself in the subsequent deed of settlement of 1957 clarified that he had no intention to settle the roof right on the said kitchen with the plaintiff while executing the deed of settlement in 1955.