BAIDYANATH CHATTERJEE Vs. ANIMA CHATTERJEE

JUDGEMENT

(1.) THIS application is at the instance of the plaintiff/appellant and is directed against the order dated August 23, 2013 passed by the learned Additional District Judge, 10th Court, Alipore in Misc. Appeal No.390 of 2010 thereby affirming the order of refusal of injunction, passed by the Order No.23 dated 1st May 28, 2010 by the learned Civil Judge, Court, Alipore in Title Suit No.1777 of 2007.

(2.) THE plaintiff/appellant/petitioner herein filed the aforesaid suit against the defendants before the learned Trial Judge praying for a decree of declaration that the common passage as described in the schedule to the plaint for use of egress and ingress of the descendants of late Monmatha Nath Chatterjee, permanent injunction restraining the defendants from encroaching the common passage and other consequential reliefs.

(3.) WHILE rejecting the prayer for temporary injunction against the defendant nos. 1 to 4, the learned Trial Judge has recorded that the descendants of Manmatha Nath Chatterjee got the absolute right, title and interest of enjoying, selling or transferring their respective sharers and so, it cannot be held that the defendants have no right or common use of the passage and so, the prayer for temporary injunction has been refused. While dealing with the appeal, the learned 1st Appellate Court has observed that the contesting defendants have acquired easement rights over the common passage in question and at the time of sale, covenant runs always with the land and so, the transferers cannot claim any right in respect of the passage and so, there is no merit in the misc. appeal. Thus, the learned 1st Appellate Court has held that the plaintiff has no prima facie case and the balance of convenience and inconvenience is not also in favour of the plaintiff. Thus, the learned 1st Appellate Court has held the concurrent views with the learned Trial Judge.