NIRMAL KUMAR MOULIK Vs. CHAMPABALA ROY

JUDGEMENT

(1.) This is an appeal by defendants Nos. 1 to 11 against a judgment of concurrence decreeing the plaintiff's suit. The suit property is comprised in C.S. Plot No. 1158, khatian No. 152 Mouza Noapara, P.S. Barasat. The case of the plaintiff is that she is the owner of the lands mentioned above along with other adjacent lands. Her house is on the contiguous north of the suit land which was an adjunct of her residence. Plot No. 1159 is situated on the west of the suit land, also belonging to the plaintiff. She planned a residential colony known as ?Lakshminarayan colony' on her lands mentioned above and in the plan prepared by her for the purpose she loosely described the suit land as a park, though it was never intended to be a park in the true sense. The plaintiff had the desire to keep this land vacant for the purpose of sufficient air and light of her own residence and also for accommodation for ceremonial occasion usually held in the presence of Sri Sri Lakshminarayan Bigraha till then in her house and for other religious occasions. The plaintiff constructed pucca pathways running the four sides of the suit land. Defendants Nos. 1 to 17 were residents of the locality and they were putting forward false claim of easement, right of user of the suit land for themselves and on behalf the local public. They also gave out that they would change the character of the land and convert it into a playground, place of exercise and to do other things calculated to thwart the exercise of the plaintiff's right of possession thereon. Actuated by that movie, they have been wrongfully attempting to dig earth, put goal-posts and such acts were criminal proceedings in respect of the entire C. S. Plot No. 1158 of which the suit land was a part. There was an attachment order in the said proceedings, but that could not be enforced as it was against some of the defendants only and accordingly it became infructuous and proved abortive. The plaintiff denied that the defendants had any right of user in the suit land, and also denied that she made at any time any grant or dedication conferring such right of user or easement in favour of the defendants. In fact, some of the defendants had given an undertaking that if they required the land, they would obtain a permission from the plaintiff before hand. The defendants, however, attempted to disturb the peaceful possession of the suit land of the plaintiff and accordingly, the plaintiff was constrained to file the instant suit praying for a declaration that the suit land was a private land of the plaintiff and also for a permanent injunction restraining the defendants from claiming any easement right, right of user or any right whatsoever in and over the suit land. The suit was instituted against the defendants in a representative capacity as selves and for and on behalf of the local public. Along with the plaint a plan of the suit land was attached which only showed the suit land and the plaintiff's house on the north.

(2.) The suit was contested by the defendants who filed a joint written statement. Their case was that the suit land was not within the compound of or adjunct to the plaintiff's house as claimed. They denied that the word 'Park' was written loosely and averred that it was written with full knowledge of its import and meaning. It was also pointed out that he suit land along with other adjoining land were planned as a colony known as 'Lakshminarayan Colony' by the plaintiff and the lands on the west of the suit land were divided into small residential plots interspersed with roads and the suit land was shown in the plan which was prepared by the plaintiff as a park. It was further stated that there were other lands in the colony which were shown in the plan as personal. The defendants' case was that in the plan the suit land was in effect a grant by the plaintiff for user by the people of the colony as place for walking, playground and holding meetings as also as place for recreation. The defendants were displaced persons and on the basis of representation that the suit land would be kept as a park as shown in the plan, the defendants purchased and took settlement of the colony plots at a considerable expense. The defendants thereafter have converted the colony into a beautiful township and the colony is also served by electricity and the suit land was since being used as a place of recreation and strolling up by local public and also as a playground. The plaintiff illegally attempted to take possession of the suit land when the defendants opposed and criminal proceedings were started. The defendants claimed that the suit land, on the basis of a grant by the plaintiff, was a park and the people of the colony had the right to use the suit land for sports, recreations and meetings and the plaintiff was estopped from challenging the position.

(3.) The suit was tried on evidence before the learned Munsif and it was held on the materials on record that there was no grant of easement or user by the plaintiff. Further, it was held that at the time the easement is alleged to have been granted, there was no colony in existence. Regarding the defendants' contention that they had acquired a right of user or easement by estoppel, it was held that no one enjoyed the suit land as a park at the time the settlements or sales were made to the defendants as the park was not in existence at all and accordingly, there could be no estoppel in the said circumstances. As the contentions raised on behalf of the defendants were not accepted, the trial court granted a decree by giving declaration to the plaintiff that the suit land was her private land and the defendants were also permanently restrained from claiming any easement or right of user or any right whatsoever in the suit land.