LAUCAL PROMOTER PVT LTD Vs. GAUTAM DUDHORIA

JUDGEMENT

(1.) This first miscellaneous appeal is at the instance of the plaintiffs in a suit for declarations and permanent injunction and is directed against order dated 31st March, 2005 passed by the learned Judge, 5th Bench, City Civil Court at Calcutta in Title Suit No. 264 of 2004 thereby dismissing an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure filed by the present appellants and vacating the interim order earlier granted therein.

(2.) The present appellants filed the aforesaid suit for declarations, inter alia, that the defendants, their men, agents and servants had no right or authority to break and open the boundary wall which runs from the east to the west on the southern side of the premises Nos.8/1 and 8/1/1 and northern side of the premises Nos. 8/1/2 and 8/1/3, Loudon Street, Calcutta - 700 017 and that the private passage of premises Nos. 8/1/1 and 8/1/2 of Loudon Street is for the exclusive use of the plaintiffs and the occupiers of the premises No.8/1/1, Loudon Street. The appellants further prayed for declaration that the respondents, their men, agents and servants were not entitled to use the said private passage and for permanent injunction restraining the defendants from breaking open the wall of premises No.8/1/3, Loudon Street on the northern and from encroaching upon the said passage.

(3.) The case made out by the appellants may be summed up thus: (a) The appellants are the lessees in respect of the premises No. 8/1/2, Loudon Street and defendant Nos. 3 to 14 are the owners and occupiers of the adjoining premises on the eastern side being Nos.8/1/3, Loudon Street. (b) There is a private passage for the exclusive use of plaintiffs and occupiers of premises No.8/1/1, Loudon Street, Calcutta and apart from plaintiffs and occupiers of premises No. 8/1/1 none has the right to use the said passage and that such passage belongs only to the plaintiffs and occupiers of premises No. 8/1/1. (c) The occupiers of 8/1 and 8/1/3, Loudon Street, have separate passage for their easy ingress and egress direct from the Loudon Street. (d) The said private passage runs between the boundary wall of premises Nos. 8/1 and 8/1/1 situated on the northern side and that of premises Nos. 8/1/2 and 8/1/3, Loudon Street situated on the southern side leading from east to west. (e) The defendants, their men, agents and servants were trying to break and open the boundary wall of premises No.8/1/3 and install a gate for the use of the said private passage and was trying to use the said private passage. Hence the suit.