SUSHILA SHARMA Vs. TARITSRI GHOSH

JUDGEMENT

(1.) This second appeal is directed against the judgment dated 9 th of September, 2002 and decree thereof passed by learned Judge, Small Causes Court at Sealdah in Title Appeal No.8 of 1996 reversing the judgment dated 22 nd December, 1995 and decree thereof passed by learned Munsif First Court at Sealdah in Title Suit No.168 of 1991.

(2.) Present respondent Nos. 1 to 8 as plaintiffs filed said suit for declaration and injunction. The plaintiffs' case, in short, may be summarized as follows:-

(3.) The Tagore Land Development Ltd. (Proforma defendant No.4) was the owner of a vacant land measuring 1 Bigha 13 Chitak 23 Sq. feet being piece and parcel and portion of premises No.31 Kakurgachi Road, Phool Bagan 24 Pgs. (South). The above mentioned vacant land was divided into 9 different plots each measuring 2 cottahs 13 Chitaks and 35 sq. feet of land along with 10 ft. common passage lying to the north of plot Nos. 2, 3, 4, 5, 6, 7 and sout of plot No.1, 8 and 9, and 8 ft. common passage lying to the east of plot No.7 and 4 and west of plot No.5 and 6. Those plots were sold out to different purchasers including the present plaintiffs giving them right of ingress and egress from the respective plots through the common passage. 10 ft. common passage has connected 40 ft. (60 ft.) wide CIT road on the west and stretched towards the east upto the dead end of premises No.31 Kakurgachi road touching the plot No.68 CIT scheme at the further east. The defendant No.1 purchased plot No.6 and also plot No.9 from the purchasers of those two plots on different dates. The said 10 ft. common passage lying in between plot No.6 and plot No.9 is the disputed A schedule property. Defendant No.1 and her husband (defendant No.2) managed to obtain a deed of conveyance from proforma defendant No.4 in respect of said disputed A schedule property though proforma defendant No.4 had no right, title and interest on said land. The deed of conveyance dated 01.03.1989 was collusive, illegal and void. The amalgamation of plot Nos. 6 and 9 including the portion of 10 ft. common passage (A schedule property) by defendant No.3 Kolkata Municipal Corporation was also illegal. Defendant Nos. 1 and 2 did not acquire any title, right and interest in the A schedule property on the strength of their alleged purchase deed dated 01.03.1989 and they had no right of making any construction over any portion of said common passage more particularly A schedule property. Accordingly, plaintiffs filed a suit with a prayer for declaration that A schedule property was a common passage and that B schedule property i.e., plot Nos. 6 and 9 were not to be amalgamated by encroaching any portion of A schedule property. The plaintiff also prayed for permanent injunction restraining defendant No.1 and 2 for encroaching any portion of A schedule property and also for mandatory injunction with a direction upon the defendant No.3 CMC for recalling the plan, if any, sanctioned for construction over A schedule property.