JYOTIRMOY BATABYAL Vs. AMILA MODAK

JUDGEMENT

(1.) The revisional application arises out of an order dated May 19, 2022 passed by the learned Civil Judge (Junior Division) 2nd Court, Sealdah in Title Suit No.221 of 2013. By the order impugned, the learned Court rejected an application for addition of the Kolkata Municipal Corporation (hereinafter referred to as the Corporation) as a party to the suit. The petitioner's application under Order 1 Rule 10(2) of the Code of Civil Procedure, was rejected.

(2.) The learned Court was of the view that as the gift deed filed by the defendant did not reflect that the property involved in the suit and the property which the defendant were claiming by virtue of the said deed, were the same, the application for addition of the Corporation should not be allowed. The Court held that it was for the plaintiffs to prove the allegations of unauthorized construction against the defendant, on the western side of the boundary wall of the suit property. The allegation of encroachment of the area owned and occupied by the plaintiffs was also to be proved by the plaintiffs. Thus, the addition of the Corporation was not required when the onus was on the plaintiffs to prove their case.

(3.) Mr. Karmakar, learned Advocate appearing on behalf of the plaintiffs submitted that the Corporation was a necessary and a proper party as there were allegations of illegal construction. The suit was for declaration and permanent injunction. A declaration that the property mentioned in the schedule belonging to the plaintiffs. Along with the said prayer for declaration, a prayer for permanent injunction restraining the defendant and her men and agents from making any construction on the western side boundary wall of the plaintiffs and/or from attempting to make any construction on the boundary wall of the property of the plaintiffs had also been made. An ad interim order of injunction was being enjoyed by the plaintiffs. In paragraph 4 of the plaint, the categorical averment of the plaintiffs was that the premises of the defendant was situated on the western side boundary wall of the plaintiffs. The plot of land belonging to the defendant was very small. The defendant proposed to demolish the boundary wall and to merge the land of the defendant with the passage of the plaintiffs, for joint ingress and egress. The plaintiffs did not agree. Thereafter, the defendant proposed for grant of right of easement through the private passage of the plaintiffs for a consideration, which was again refused by the plaintiffs.