ALO RANI BANERJEE Vs. MALATI ROY

JUDGEMENT

(1.) This appeal is directed against the judgment and decree passed by the learned subordinate Judge, 6th, Court, Alipore in Title Appeal No. 241 of 1973 setting aside those of the learned Munsif, 1st Court, Sealdah passed in T. S. No. 475 of 1958.

(2.) The plaintiff-appellants filed the said suit for declaration of right of way over the disputed land and for injunction. The plaintiffs' case is that C. S. Plot No. 395 of Mouza Dum Dum originally belonged to one Biman Jyoti Majumder who sold 3 cottahs each to plaintiffs Nos. 1 and 2 and 4 cottahs and 4 chittaks to the defendant out of the said plot on the same day i.e. 16-6-51 after setting apart in the middle of the plot a common passage 8 feet in width and about 128 feet in length connecting Municipal Office Lane on the west and Narsingha Avenue in the east. The said common passage is the only way for obtaining access from the plaintiffs plot to Municipal Office Lane and Narsingha Avenue. The defendant later purchased from Dutta Majumdar 5 cottahs 6 chittaks of land comprised in a pond and situate on the north of the said common passage. After such purchase the defendant blocked 45 feet stretch of the common passage towards Narsingha Avenue by raising a fencing. The plaintiff repeatedly requested the defendant to remove the constructions without result. Hence the suit.

(3.) The suit was contested by the defendant inter alia on the plea that the defendant was owner by purchase of the disputed 8 feet wide space to the south of her pond connecting municipal lane and Narsingha Avenue and has been in an exclusive possession thereof and that the plaintiff never acquired any right of way or other easement over the said space.