KRISHNA KALI MALLIK Vs. BABULAL SHAW

JUDGEMENT

(1.) The plaintiff instituted this suit for a mandatory injunction commanding the defendants to demolish or pull down the constructions indicated by the hatched portions in the plan annexed to the plaint and coloured red and a declaration, if necessary, that the constructions indicated by the hatched portions in the plan coloured red, are illegal, a perpetual injunction restraining the defendants or their agents and servants from constructing the third storey or any portion thereof without complying with the side space and back space rules, being rules Nos. 32 and 30 of Schedule XVI of the Calcutta Municipal Act of 1951 and further reliefs.

(2.) The plaintiff is the owner of premises. No. 177 Cornwallis Street. The defendants are owners of premises No. 178, Cornwallis Street. The premises No. 178 Cornwallis Street stands to the immediate south of premises No. 177 Cornwallis Street. The plaintiff's premises is partly five storied and partly six storied. The defendant's house is a two storied building. Prior to 1958, it is alleged that, there existed at 178 Cornwallis Street a two storied building of low height and that in the year 1958 the said two storied building was completely demolished by the defendants and the new two storied building now existing was constructed by the defendants in place of the old one" right from the very foundation. The plaintiff alleges that the building of the defendants is constructed in violation of Rule 23 of Schedule XVI; Rule 32 of Schedule XVI and Rule 29 of Schedule XVI of the Calcutta Municipal Act. Rule 23 is in relation to open space to be kept at a building. Rule 30 relates to back space to be kept open at a building. Rule 32 relates to the side space to be kept open and Rule 29 relates to the height of the building.

(3.) The plaintiff alleges that the defendants started in or about November 1962 construction of the third storey of the said building in further violation of tho said rules. The defendants, it is alleged, actually constructed a staircase and rooms on the side space, required to be kept open under the provisions of the Calcutta Municipal Act, and committed further breach of Rules 23, 29, 30 and 32 of Schedule XVI of the Calcutta Municipal Act, 1951. The further allegations are that there exists in favour of the plaintiff an obligation on the part of the defendants, expressly under the provisions of the Calcutta Municipal Act of 1951 or be implication, not to make any construction in breach of the building rules of the Calcutta Municipal Act of 1954 and that the defendants invaded and are further invading the plaintiff's right or enjoyment of the property.