IN RE: REBA SAMANTA Vs. STATE

JUDGEMENT

(1.) This revisional application is directed against the judgment and order passed by the learned Addl. District Judge, Twelfth Court, Alipore, in Misc. Appeals Nos. 176 of 1991 and 202 of 1991 which arose from the judgment and order passed by the learned Asstt. District Judge, Ninth Court, Alipore, in Title Suit No. 7 of 1991.

(2.) The Plaintiff, opposite party brought the suit for certain declarations which, inter alia, contains a declaration that the Plaintiff acquired an indivisible easement right of enjoying free air and light through and over the land belonging to the Defendant described as B schedule plot of land in the plaint in respect of his own land described as 'A' schedule of the plaint. The Plaintiff also prayed for permanent injunction restraining the Defendant from making any construction over their B schedule plot of land and for mandatory injunction for demolition of construction which obstructs the passage of free air and light to their land of 'A' schedule. The Plaintiff is now a private limited company, M/s. K.B. Saha and Sons. The case of the company is that one Kumud Bandhu Saha purchased A schedule land on June 17, 1964, by a registered sale deed from the erstwhile owners measuring 8 cottahs 14 chattaks 36 sq.ft.. The purchaser -in -interest of defendants Nos. 1 to 4, purchased 'B' schedule land from Defendant No. 5 by a registered sale deed on March 16, 1983. It is alleged that after purchase the Plaintiff company constructed a eight - storied building and has been in enjoyment of right of easement of light and air in the said building over 'B' schedule land now belonging to the Defendant. It is further alleged that the Defendant collusively got a plan sanctioned by the Corporation in February 1991 despite the Plaintiffs repeated protest. The Plaintiff moved the High Court in writ jurisdiction and obtained an order of mandamus upon the Calcutta Municipal Corporation who was added as Defendant No. 6 in the suit for making an enquiry and taking appropriate steps in this regard. It is alleged that the Defendant No. 6 has not taken any step. It is stated that in violation of the relevant provision of the Municipal laws and other relevant laws, the Defendant made construction on 'B' schedule of land to obstruct right of easement of light and air in respect of Plaintiffs building on 'A' schedule land.

(3.) The Defendants Nos. 1 to 4 contended in their written objection that after purchasing 'B' schedule land and after obtaining due sanction from the Calcutta Municipal Corporation they began raising construction on their land which is a separate premises demarcated with pucca boundary walls on all sides. They have asserted that they have raised the construction in compliance with the sanction accorded by the Calcutta Municipal Corporation. They have collected materials and began construction on their dwelling house over their own land. The Plaintiff, however, after filing the suit obtained an order of ad interim injunction or precisely to say, an order of status quo. They have also applied for temporary injunction in terms of the case made out in the plaint and in support of their prayer for permanent and mandatory injunction. Later, the Defendants Nos. 1 to 4 filed an application under Order 39 Rule 4 of the Code of Civil Procedure for vacating and/or modifying the ex parte interim order of maintenance of status quo.