GOPENDRA KRISHNA CHANDRA Vs. MRINALINI BASU

JUDGEMENT

(1.) This appeal is by the Defendant No. 1 in T.S. No. 132 of 1966 in the Second Court of Munsif at Alipore. The Respondents Nos. 1 and 2, mother and son and another started the suit on April 14, 1962. Later, they on their -petition obtained leave under Order 1, Rule 8 of the Code of Civil Procedure to continue the suit in representative capacity for and on behalf of the residents of the locality of Chetla in the city of Calcutta. The case in the plaint, not fully or properly stated in the learned Munsif's judgment, is that there is a 6 ft. wide passage running north to south, between the Defendants' houses on 29A, 29B and 31 Gobinda Addy Road, on the east and the Plaintiff's houses on the west. The passage connects Gobinda Addy Road on the south and leads 'towards Sabji Bagan Lane' on the north. The original Plaintiff No. 1 who died during the pendency of the suit owned and resided in 27B Gobinda Addy Road and the Plaintiffs Nos. 2 and 3 own and reside in 25 and 27C Gobinda Addy Road. The 6 ft. wide passage is in existence for over 50 years. The Plaintiffs as also the public have been using it uninterruptedly, continuously and as of right from the time of their predecessors for that long period and have acquired right of easement over it as a pathway either by prescription or by implied grant. The passage is also an easement of necessity in respect of premises 27C, as there is no other passage to go to it. The said passage is mentioned in numerous documents from 1893, in Smarts Plan, as passing through and extending on plot No. 2230 of mouza Chetla and in constructional plans. The Defendants put up obstruction on April 18, 1962, on the pathway for which the Plaintiffs filed the suit. They and particularly the residents of No. 27C would suffer special damages as the blocking of the suit passage would diminish the value of their properties and deprive them of the existing approach to them. The Plaintiffs further stated that the residents of 27C Gobinda Addy Road have alternatively an easement of necessity over the suit pathway as they have no entrance to or exit from their said premises except through the suit pathway.

(2.) Obtaining leave of the Court under Order 1, Rule 8 of the Code of Civil Procedure a case of the public residents of the locality of Chetla acquiring right of way over the suit pathway by prescription was introduced by amendment of the plaint.

(3.) Of the Defendants, who are heirs of Satyendra, Nos. 1 to 3 and 5 jointly contested the suit. The defence is that the strip of the land between their houses on 29A and B and 31 Gobinda Addy Road and those on premises Nos. 25, 27A, 27B arid Gobinda Addy Road, is their private passage, constructed by their predecessor for that purpose in 1905 and that neither the Plaintiffs nor the Chetla public have any easement right over it either by grant or prescription or as easement of necessity. They state that premises Nos. 27A, 27B and 27C were originally No. 27 owned and possessed by Jnanada Sundari Debi (the Plaintiffs No. 1 to 3's predecessor) and she took the Defendants' permission to lay pipes under the Defendants' private passage i.e. the suit pathway. They disputed the claim of easement of necessity stating that Gobinda Addy Road runs by the south of premises Nos. 25, 27A and 27C and is used by them to come out and enter into those houses and that premises No. 27B has its opening on a lane to its adjacent connected with Gobinda Addy Road. They disputed that any of the Plaintiffs suffered or will suffer any special damages if the suit private passage is not used by him or them.