BINA GHORUI Vs. CHOTTAN SHAW

JUDGEMENT

(1.) This second appeal is directed against the judgment dated 17th February, 1998 passed by the learned Civil Judge (Senior Division), Sealdah in Title Appeal No.59 of 1997 reversing the judgment dated 30th May, 1997 and decree thereof passed by the learned Munsif 3rd Court at Sealdah being Title Suit No.65 of 1987.

(2.) The plaintiff filed a suit alleging that he purchased the suit property from one Uday Kumar Gupta through a kobala dated 22nd February, 1983 including the 4 feet passage running north to south. The contiguous west plot being portion of the premises No.10/1, Gobinda Khatick Road is the property of defendant No.1. The 4 feet common passage running from north to south, was plaintiffs' absolute property through said purchase and defendant No.1 had no right over the same. As the defendants are trying to encroach on said passage claiming to be common passage the plaintiff was compelled to file the suit for declaration and injunction.

(3.) The defendants / respondents contested said suit by filing a written statement. It was contended inter alia that the defendant No.1 was the owner of plot No.10/1/C (old plot No.10/1) Gobinda Khatick Road to the contiguous east side of the plaintiffs land. The vendor of both the parties was same. The defendant No.1 purchased said plot of land along with the right to use the disputed 4 feet wide common passage as a passage for going to the public pathway and that except the suit passage the defendants had no other pathway to come to the public pathway. The plaintiff was not the absolute owner of the common passage and the suit was liable to be dismissed.