RICHARD DE SOUZA Vs. ABDUL WAHED

JUDGEMENT

(1.) The plaintiff is the owner of premises No. 89/1, Collin Street. The defendant No. 1 is the owner of a portion of the adjoining premises No. 89, Collin Street now known as premises No. 89-A, Collin Street. The defendants Nos. 2 and 3 are owners of another portion of premises No. 89, Collin Street now known as 89B, Collin Street. There is a common passage to the east of premises No. 89, separating it, inter alia, from premises No. 89B. It is now admitted by all the parties before us that there is a common passage to the east of premises No. 89/1. In this appeal we are not directly concerned with that common passage.

(2.) The plaintiff claims a declaration that a strip of land running along the entire northern boundary of premises No. 89/1, Collin Street as shown in the plan annexed to the plaint is a common passage. The plan annexed to the plaint is not drawn to scale but the plaintiff orally says that the width of the passage is about 5' to 6'.

(3.) Both premises No. 89 and 89/1, Collin Street were the subject matter of a partition suit being suit No. 1389 of 1937 on the Original Side of this Court to which all the owners of the two premises were parties. In that suit Shri Sushil Kumar Dutt, Bar-at-Law, was appointed Commissioner of Partition. By an order of Court dated December 20, 1940, Shri Dutt as Commissioner of partition made distinct and separate allotments of premises No. 89/1 and also the premises now known as 89A, and of other premises with a view to selling them. Premises No. 89/1 was sold by auction on March 20, 1942, and the property was conveyed to the plaintiff by an instrument dated the 21st August, 1942. The premises now known as premises No. 89A, was also sold by the Commissioner of Partition but the exact date of the sale does not appear from the evidence on the record. Subsequent to the conveyance dated the 21st August, 1942, the Commissioner of Partition executed a deed of rectification dated the 23rd June, 1950, whereby he purported to rectify, inter alia, the northern boundary of premises No. 89/1 given in the conveyance dated the 21st August, 1942. The plaintiff claims that the disputed strip of land was used as a passage for ingress to and egress from a door on the northern boundary of premises No. 89/1, and also that two windows in a room abutting on the common passage enjoyed unobstructed air and light from this open strip of land. The defendant has constructed structures on a portion of the disputed strip of land. The plaintiff claims that by reason of this construction the defendant has wrongfully obstructed the plaintiff's right of passage, as also his right of access to light and air in respect of the two windows.