KALI CHARAN CHAKRABORTY HAVING DIED HIS HEIRS SM KASHISWARI CHAKRABORTY Vs. DURGACHARAN BANERJEE HAVING DIED HIS HEIRS ANANDAMOYEE BANERJEE

JUDGEMENT

(1.) These two appeals by the defendants are from the appellate judgment and decree of the learned Additional District Judge, 2nd Court; Alipore (24 Parganas) who has allowed the appeal preferred by the plaintiffs and dismissed the appeal preferred by the defendants, after hearing them analogously and modified the decree passed by the learned Munsif, 4th Court, Alipore in Title Suit No. 217 of 1972 for declarations and permanent and mandatory injunctions.

(2.) The subject matter of the dispute between the parties is a strip of land 59ft in length from east to west and 4ft in width from north to south appertaining to premises No. 35, Fakir Haldar lane, P. S. Bhawanipore in the district of 24 parganas. The said premises originally belonged to Haridas Chatterjee. To the adjacent north of the said premises lie premises No. 33, Fakir Haldar Lane of which Mrinalini Dassi was the original owner. By a registered sale deed dated 19-3-1915 Mrinalini Dassi purchased land measuring 59ft. Being the northern half of the suit land from Haridas Chatterjee who reserved certain rights over the land sold to her for the benefit of the remaining portion of premises No. 35, Fakir Haldar Lane, as at the time of the sale there was a covenant between the Vendor and the Vendee that the Vendee would not disturb the passage of light, air and water over the strip of land sold to her, that the Vendee would not build on it or make any construction except a drain over it and that the drain and privy of premises No 35, could be connected with the drain of premises No 33. Thereafter the interest of Mrinalini Dassi in premises No. 3, Fakir Haldar Lane and the northern half of the suit land devolved on her heirs Netaidas Mallick and others. The right, title and interest of Haridas Chatterjee in the land and building within premises No 35, Fakir Halldar Lane devolved on his heirs Tara Prasad Chatterjee and others and were sold by them in 1942 to Tinkari Banerjee, whose sole successor-in-interest was the original plaintiff in the present suit. Tinkari Banerjee obtained a decree for permanent injunction against. Netaidas Mallick and others restraining them from obstructing his easement rights over the northern half of the suit land and his ownership rights over the southern half of the suit land in Title Suit No 112 of 1948, which was renumbered as Title Suit No 71 of 1949. Thereafter in the course of sale in Money Execution Case No. 9 of 1959 against Netaidas mallick and others, the heirs of Mrinalini Dassi the premises No.33, Fakir haldar Lane along with northern half of he suit land was auction purchased by Kali Charan Chakraborty the original defendant in the present suit.

(3.) The plaintiff's case was that he carried on his business at Gauhati in Assam and lived there with his family. Taking advantage of his absence the defendant without knowledge of the plaintiff encroached upon the northern part of the suit land and illegally and wrongfully constructed two kitchens shown by the letters 'K' and 'k (i)'; two urinals shown by the letters 'U' and 'U(i) and a privy shown by the letter 'P' in the sketch map of the schedule to the plaint, in breach of the restrictive covenant expressed in the sale deed dated 19-3-1915 and has obstructed the plaintiffs' user of and interfered with the easement rights of passage of air, light and water over the northern half of the suit land shown by the letters, "A', "B", "E' and "F' in the sketch map. The plaintiff has claimed absolute title to the southern half of the suit land shown by the letters "E, "C', "D" and "F" in the sketch map, permanent injunction restraining he defendants from interfering with the plaintiff' easement rights over the northern half of the suit land and mandatory injunction for removal of the aforesaid structures constructed by the defendants.