CHANDRA SEKHAR MAITY Vs. BANABEHARI MAITY

JUDGEMENT

(1.) Can 6644 of 2019 is an application for appropriate order/relief filed by the respondent no.1.

(2.) Respondent no.1 is the plaintiff no.1 in Title Suit no.139 of 1998 which was filed for declaration and mandatory injunction against the defendant/appellants. Suit was decreed in part by the learned Civil Judge (Sr. Div.), 2nd Court at Contai. Against the said judgment and decree, the petitioner preferred an appeal which was registered as Title Appeal no.10 of 2015. The said appeal was allowed on contest modifying the judgment and decree passed by the trial court and right, title and interest of the plaintiffs over the suit common passage was declared. The defendants were directed to remove obstruction from the said common passage within 60 days from the date of passing of the decree by the first Appellate Court.

(3.) The said judgment and decree passed in Title Appeal no.10 of 2015 is assailed in the instant appeal before this court by the defendants of the original suit. During the pendency of the appeal the appellant no.4 died. The surviving appellants are directed to take appropriate steps to enable the appellants to substitute deceased appellant no.4 by his legal heirs and representatives. In the mean time, the son of the petitioner made an application for obtaining new electric connection in the premises before the WBSEDCL. That on February 13, 2018, the WBSEDCL installed pillars for providing new electric connection to the son of the petitioner to their premises. Inspite of erection of electric pillars, WBSEDCL did not provide electric connection to the son of the petitioner. Subsequently, the petitioner came to know that the appellant no.1 made an objection before the WBSEDCL stating, inter alia, that the Licensing Authority cannot provide electricity to the applicant as an order of status quo is passed by the Division Bench of this court in the instant appeal is in force. The son of the applicant invoked the jurisdiction of this court under Article 226 of the Constitution of India by filing W.P no.5743(W) of 2018. However, a Coordinate Bench of this court vide order dated June 21, 2019 refused to pass any order in the aforesaid writ petition in the event of an order of status quo being in force in connection with this appeal. However, the petitioner was granted liberty to move appropriate application before this court for proper relief. It is further stated by the petitioner that his father and the father of the opposite party no.1 were two brothers. The property in suit was gifted by the father of the respective parties by registered deeds of gift, the parties are in occupation of their respective properties on the basis of the deeds of gifts executed by their fathers. There is a common passage in between two plots being plot no.366, 367 and 370. The right of the applicant to use the said common passage was upheld upto the first Appellate Court, now the petitioner wants to take electric connection through the common passage, the opposite party no.1 has raised objection the petitioner undertakes that in the event the decision of the second appeal goes against him, he will remove the electric pillars and connection with the help of WBSEDCL at his own cost but during the pendency of this appeal the petitioner's son may be permitted to enjoy the most essential service of electricity in his premises.