LALIT MOHAN MITRA Vs. SAMIRENDRA KUMAR GHOSH

JUDGEMENT

(1.) This is an appeal by the defendants against the judgment and decree passed by Sri. M. Roy, Additional District Judge, 13th Court at Alipore in Title Appeal No. 1854 of 1966 dated 29th September 1967 affirming the judgment and decree dated 30th September 1964 passed by Sri N. C. Mahanty, 2nd Court Munsif, Sealdah in Title Suit No. 16 of 1963.

(2.) The facts of the case may briefly be stated as follows:-- Premises No. 4/1, Jadu Mitra Lane, Calcutta, belonged to two brothers Lalit (defendant No. 1) and Pramatha. The above premises comprised an area of about 5 cottas and odd. To the adjacent of the above premises is the residential premises of the plaintiffs. Formerly there was a back space of 10 feet in respect of the joint premises of the two brothers at 4/1', Jadu Nath Mitra Lane. The joint premises was constructed in terms of the sanctioned plan of the Calcutta Corporation in 1932. Sometime in 1933 the defendant No. 1 tried to make an unauthorised pucca construction in the above back space without a sanctioned plan. This was immediately objected to by the plaintiffs and it was found by the Corporation that the defendant No. 1 constructed in accordance with the sanctioned plan. According to the plaintiffs they noticed once again attempts by the defendant No. 1 at laying a foundation of third storied building in the above back space. On enquiry the plaintiffs came to know that the defendant No. 1 in collusion with the officers of the Corporation managed to obtain previously a separate premises being No. 14/1-A, Radhakanta Jew Street out of the former premises at 4/1, Jadunath Mitra Lane. Premises No. 14/1', Radhakanta Jew Street was shown as a separate unit in respect of which it was alleged by the plaintiffs that the defendant No. 1 managed to obtain a sanctioned plan for the proposed third storied building in the back space of 4/1, Jadu Nath Mitra Lane. It is the case of the plaintiffs that the proposed plan was in violation of the statutory rules of the Calcutta Municipal Act, 1951. In such circumstances, the plaintiffs brought the suit praying for a perpetual injunction against the defendant No. 1 from constructing any structure on the basis of the said plan. The Corporation of Calcutta and the Commissioner of Calcutta Corporation were made parties. It was prayed that they be directed to cancel the said plan sanctioned by them. The plaintiffs also prayed for a mandatory injunction to demolish the structure already raised.

(3.) The defence was that by a partition deed of 1949 between the two brothers Lalit and Pramatha the premises at 4/1, Jadu Nath Mitra Lane was divided into two parts. The northern portion of the said premises was allotted to Lalit, the defendant No. 1, which was adjacent to the plaintiffs' premises at 16, Radha Kanta Jew Street. The southern portion was allotted to Pramatha who was not made a party in the present suit. After the partition deed was effected, the defendant No. 1' Lalit enjoyed the southern half of the above premises as a separate unit and mutated his name in the Calcutta Corporation. The said premises was numbered as 14/1-A, Radha Kanta Jew Street In 1960 the defendant No, 1 obtained a sanctioned plan of a three storied building. The defendant relied upon the Corporation tax bills which showed that the other brother Pramatha enjoyed the separate premises at 4/1-A, Jadu Nath Mitra Lane. On behalf of the Corporation of Calcutta it was asserted that the plan was legally sanctioned by them and there was no violation of the rules of the Calcutta Municipal Act. The learned Munsif held that the building plan was in violation of the statutory building rules and the defendant No. 1 was not entitled to construct in terms of such plan. In that view of his finding the learned Munsif decreed the suit. Being aggrieved, the defendant No. 1 preferred an appeal. The learned appellate Court below agreed with all the findings of the trial Court and dismissed the appeal. Being aggrieved, this present appeal has been filed by the defendants.