JADUNATH BASAK Vs. MRITUNJOY SETT

JUDGEMENT

(1.) This appeal is directed against the judgment and decree passed by Shri S. N. Banerjee, the learned Judge, 13th Bench, City Civil Court, Calcutta, in Title Suit No. 1298 of 1976.

(2.) The plaintiff filed the aforesaid suit for a declaration that the defendant No. 1 (Jadunath Basak) had no right or authority to run a factory in the suit premises and for permanent and mandatory injunction.

(3.) It was the case of the plaintiff (Mritunjoy Sett) that he was one of the co-owners of the suit premises No. 43F, Nilmohi Mitra Street, Calcutta, having 3/4th share therein and that defendant No. 2 Kamala Sett, the other co-owner, had th share. The entire first floor of the said premises was in occupation of the plaintiff and the garret at the top was in occupation of the near relation of the plaintiff. The defendant No.1 was inducted as a tenant in a portion of the ground floor by the defendant No.2 who occupied the remaining portion of the ground floor. The defendant No.1 had been running the business of metal industries with two power driven machine in the tenanted room without the consent of the plaintiff and without any authority from the Corporation of Calcutta and melting and moulding metals and metal wire. In the process of such work, obnoxious and injurious gases were emitted and noise and vibrations were caused by the power-driven machines. The same caused nuisance to the members of the family of the plaintiff specially to his wife who had heart trouble. The continuous vibration was causing damage to the premises itself. The defendant No. 1 did not take any permission for establishing the workshop with power-driven machines from the Corporation of Calcutta under S.436 of the Calcutta Municipal Act, hereinafter referred to as the Act, nor did he take the required health licence under S.437 of the said Act. Accordingly, the instant suit was brought for the relief as claimed.