RAGHUNATH PRASAD Vs. SANT LAL SHOW

JUDGEMENT

(1.) This second appeal has been preferred against the judgment and decree passed in Title-Appeal No. 39 of 19.71 by the Subordinate Judge at Asansol. The plaintiff filed a suit for declaration that the plaintiff has right to the stair case and has right to reconstruct the said stair case to convert it into a pucca stair case. He has also asked for permanent injunction restraining the principal defendants from interfering with the plaintiff's intended reconstruction or to disturb it or to cause obstruction to it.

(2.) The plaintiff alleges that "A" schedule property belonged to one Srikrishan Show who died leaving his widow and only heir Rajpati Devi figuring as proforma defendant No. 5 in the suit. The said Srikrishan by virtue of a deed of gift gave away the "B" schedule property to the said widow which forms part of "A" schedule property. Srikrishan Show also executed a will in respect of the remaining part of the property mentioned in Schedule 'C'. The will was not probated. Proforma defendant No. 5 as the sole heir of her husband succeeded to the property by inheritance. There is a stair case to negotiate the first floor from the ground floor. It is located on the western part of the building and it is very old and dilapidated. It needs an urgent repair. Proforma defendant no. 5 granted a monthly tenancy in favour of the plaintiff for a term of 40 years in respect of "C" schedule property. The plaintiff intends to reconstruct the said stair case in order to enjoy his "C" Schedule property. The defendant challenged various allegations in the plaint. It is particularly stated in the written statement that the stair case referred to by the plaintiff is located on the north-west comer of the property gifted by Srikrishan Show in favour of his widow who in turn sold it to the defendant. The stair case forms part of the property purchased by the defendant. The trial Court decreed the suit. The court of appeal below has allowed the appeal and dismissed the suit.

(3.) The plaintiff has preferred this second appeal. The cross-objection filed by the respondent is not pressed and therefore it stands rejected.