BIMALA DASI AND OTHERS Vs. KUNDARANI AND OTHERS

JUDGEMENT

(1.) This appeal is directed against the judgment and decree dated 27th June, 1974 passed in Title Appeal No. 39/75 by the learned Second Additional District Judge, Howrah affirming the judgment and decree dated 23rd Dec., 1971 passed by the learned Munsif, 4th Court, Howrah in Title Suit No. 103/1968.

(2.) The fact behind this appeal, as could be culled from the record, is that originally one Manmotho Nath Bagani, predecessor-in-interest of the plaintiffs and the defendants, was the owner of Holding Nos. 12/4,13,14,14/12, Ram Krishna Acharya Lane, Howrah. He settled the same with the predecessor-in-interest of the plaintiffs and the defendants. The said Bagani settled premises No. 12/3, Ram Krishna Acharya Lane, with one Vanumati Dasi who in turn sold the same to the defendant No. 1. It is alleged that said Manmotho Bagani created a private common passage by the said deed of settlement for the convenience and benefit of the tenants of the adjoining holdings (as both the Courts below understood the plaint in that way) and the plaintiffs have been using the said common passage since the acquisition of their title over the property. It has further been alleged that without any sanction from the Municipality the defendant No. 1 made construction on the said common passage and thereby encroached upon the land in detriment to the rights and prejudice of the plaintiffs. The plaintiffs accordingly, filed the suit in the Court of 4th Munsif, Howrah, being Title Suit No. 103/68. for mandatory and permanent injunction restraining the defendant No. 1 from interfering with the right of the plaintiffs on the said land and also for demolition of the construction al ready made on that land. Further prayer was made against the defendant No. 2, Howrah Municipality for restraining them from sanctioning any plan in favour of the defendant No. 1 for construction over the said land. By way of amendment a plan was brought to the plaint showing the disputed portion of the land regarding the said common passage.

(3.) The defendant No. 1 contested the suit by using a written statement wherein she has denied the existence of any common passage and claimed that the disputed portion of the land is tier absolute property. She also appended the sketch map to her written statement showing the existence of a separate passage for ingress and egress from the respective premises of the plaintiffs other than the disputed land.