NITYA NARAYAN SARKAR Vs. ANANDAMOYEE DIKPATI

JUDGEMENT

(1.) This revisional application is directed against order No. 137 dated 26th April, 1995, passed by the learned Munsif, 2nd court, Burdwan, in Title Suit No. 98 of 1987, allowing the plaintiffs' application under Order 6 Rule 17 read with section 151 of the code of civil procedure, for amendment of the plaint.

(2.) One Satya Prosanna Dikpati, since deceased, the predecessor-in-interest of the substituted opposite parties, filed the aforesaid suit against the petitioner No. 1 herein and the predecessor-in-interest of the petitioners Nos. 2 and 3, inter alia, for permanent injunction to restrain the original defendants from disturbing the plaintiffs' right of user in respect of the passage described in Schedule "A" to the plaint and from being dispossessed therefrom upon declaration of the plaintiffs' right, title and interest therein and for other reliefs. The case made out in the plaint is that the original plaintiff and the defendants are residents of the same area and that the said plaintiff was the owner of the passage described in Schedule 'A' to the plaint and situated on the contiguous west of the residence of the plaintiff. That the said passage together with other properties originally belonged to the plaintiff's father and on his death his sons, including the plaintiff, and one daughter, inherited the said properties with the plaintiff inheriting a one-fourth share therein. The house properties were amicably partitioned by a registered deed dated 2nd February, 1982, and on the basis of the said deed of partition the plaintiff was allotted the property mentioned in Schedule 'A' of the plaint.

(3.) The further case of the plaintiff was that the property described in schedule 'B' of the plaint belonged to the mother of the petitioner No. 1 herein and that since the partition was effected the plaintiff was exclusively using plot No. 8163 as a passage which lies to the contiguous south of the petitioners' house. That the petitioners herein tried to obstruct the said passage while raising their construction and became aggressive when asked by the plaintiff to remove such obstruction, resulting in the filing of the suit.