DIPAK KUMAR CHAKRABORTY Vs. PRASANTA KUMAR CHAKRABORTY

JUDGEMENT

(1.) These two Revisional applications Nos. 534/92 and 1255/92 are directed against the same order of an Executive Magistrate, Barrackpore, passed in a criminal proceeding' under Sec. 147, Code of Criminal Procedure. The parties are near relatives, to be precise, uncle and nephew, who are fighting between themselves over the right of the user of a staircase in a residential building. The said building being the joint property of four brothers was partitioned among themselves on the basis of a compromise decree passed with the consent of all the brothers in an earlier Title Suit No. 54/1975 of Fifth Court of Subordinate Judge, Alipore. By the said compromise decree the residential house was partitioned by metes and bounds on the basis of a Commissioner's report and an accompanying map. The parties having agreed to the terms of the compromise there was a smooth partition so far as two brothers are concerned. Subsequently, one of the brothers, namely, Sudhansu Kumar Chakraborty died and his heirs inherited his share. The dispute, however, arose over the user of the staircase which was mentioned to be used in common by the two brothers Sudhansu and Prasanta. While the heirs of Sudhansu claimed that this was a temporary arrangement pending the construction of separate staircases by all the brothers according to the terms of the compromise decree, the contention of Prasanta is that the common user was made to be a permanent feature in the compromise decree.

(2.) The dispute arose when Dipak Chakraborty, son of Sudhansu Chakraborty, fixed an iron gate at the entrance of the staircase. The uncle Prasanta was apparently annoyed at the action of his nephew and approached the Executive Magistrate for starting a proceeding under s: 147, Code of Criminal Procedure, alleging that his right of common user of the staircase was blocked by his nephew. The contention of Dipak was that by virtue of the terms of the partition decree, the other party was to construct a separate staircase for his use and that he had acquired an obsolete right were the staircase existing at the time of partition. The learned Magistrate who heard the petition under Sec. 147, Code of Criminal Procedure, passed a preliminary order on December 31, 199.1, directing Dipak to keep the door open during the day -time so that the staircase might be used by both the parties. By a final order dated January 28, 1992, he ordered that both the parties will enjoy the staircase as per his previous order. Apparently, both the parties were dissatisfied with the order of the learned Executive Magistrate. One party thought that the order was bad as the other party had no right to use the staircase at all and the other party's contention was that the right of user ought to have been declared during the day and night, that is, absolutely for the whole time.

(3.) Both parties have based their respective claims on the basis of the same partition decree. Each has tried to interpret the terms of the compromise decree to be in his favour and, hence, it is necessary to examine the terms of she decree before the respective claims of the parties can be properly considered.