RANADHI KUMAR DAS Vs. MADAN MOHAN SADHUKHAN

JUDGEMENT

(1.) The appellant as plaintiff instituted a suit for injunction against the defendant/plaintiff in the 7th Court of the learned Civil Judge (Junior Division) at Howrah which was registered as Title Suit No.204 of 1997 pleading, inter alia, that one Baridhi Bilas Das was the original owner in respect of Howrah Municipal Corporation holding No.44A, Hem Chakraborty Lane comprising of land measuring 2 cottahs, 6 chitaks and 15 sq.ft together with structure thereon. The said Baridhi Bilas transferred 1 cottah 12 chitaks 35 sq.ft of land together tile shed out of the entire property comprised in holding No.44A, Hem Chakraborty Lane to one Satyendranath Adak by a registered deed of sale dated 12 December, 1980. The vendor, however retained 10 chitaks and 8 sq.ft land in holding No.44A Hem Chakraborty Land with a strip of land measuring about 4 ft. 3 inches width in the South of the sold out portion to Satyendranath Adak and his pre-existing passage to Hem Chakraborty Lane being only egress and ingress to his portion. The said piece and parcel of land measuring 10 chitaks and 8 sq.ft of land together with small structures standing thereon within 44A Hem Chakraborty Lane is fully described in schedule A of the plaint. Schedule B of the plaint is the property purchased by Satyendranath Adak from the original owner, namely, Baridhi Bilas. Satyendranath Adak sold out B schedule property to the defendant/respondent. A schedule suit property was all along under the possession of the original owner of premises No.44A Hem Chakraborty Lane. By a registered deed of purchase dated 6th September, 1994, the said Baridhi Bilas sold out the suit property in favour of the plaintiff. B schedule property was renumbered as 44A/1/1 Hem Chakraborty Lane after it was sold out to Satyendranath Adak. The cause of action to file the said suit arose when the defendant was raising pucca two storied building without leaving any side or rear space towards south and east by the plaintiff's A schedule property. It is alleged by the plaintiff that defendant illegally obtained sanction plan with false and erroneous measurement of B schedule property, suppressing the existence of the only passage for ingress and egress from A schedule property which is morefully described as C schedule property of the plaint. The plaintiffs started to raise pucca boundary wall in the A schedule property in the northern side abating B schedule property and in the southern side by the side of the land of one Chandi Das, since deceased in order to protect his property and fixed a door towards Hem Chakraborty Lane sometimes in the last week of December, 1997. But the defendant all of in a sudden on 18th December, 1997 opened a door on the southern side below the standing step of staircase and another door on the southern wall of pantile roof room towards the strip of land described in schedule A and schedule C of the plaint with ulterior motive to use the said strip of land of the plaintiff illegally, though he had no right, title and interest over the said strip of land. It is further pleaded that the father of the plaintiff, namely Ramaprosad Das instituted Title Suit No.195 of 1983 in the 3rd Court of the learned Munsif, Howrah for declaration of injunction claiming right over C schedule property to the plaint impleading one Guruprosad Das and Baridhi Bilas Das and others as defendants. The said suit was decreed in part. The plaintiff preferred an appeal against the said judgment and decree. During the pendency of the appeal, dispute between the plaintiff and legal representatives of the said Baridhi Bilas was amicably settled. Plaintiff purchased A schedule property including C schedule property from the legal heirs of Baridhi Bilas. The portion alleged to be sold to Satyendranath Adak and subsequently to the defendant does not include C schedule strip of land. Since the defendant taking advantage of erroneous and collusive and wrong measurement of his purchased land in his deed of purchase tried to disturb peaceful enjoyment of C schedule property by the plaintiff, he filed the suit for permanent injunction restraining the defendant from using C schedule property in any manner whatsoever and from obstructing the construction of boundary wall and the entrance door in C schedule property.

(2.) The defendant contested the suit by filing written statement denying all material allegations made by the plaintiff against him. Specific case of the defendant is that holding No.44A Hem Chakraborty Lane was measuring about 2 cottahs 6 chitaks and 15 sq.ft of land with structure. The original owner of the said premises was one Guruprasad Das who got the said property by virtue of a final decree passed in Partition Suit No.7 of 1957. The said Guruprasad Das transferred the said holding in its entirety to his son Baridhi Bilas by executing a deed of sale dated 13th March, 1970. The defendant was a monthly tenant in respect of entire holding No.44A Hem Chakraborty Lane at a monthly rental of Rs.50/- payable according to the English calendar month. After purchase by Baridhi Bilas, the suit property was renumbered as holding No.44/A/1 Hem Chakraborty Lane. By a registered deed of sale dated 12th December, 1980, Baridhi Bilas transferred holding No.44/A/1 Hem Chakraborty Lane to one Satyendranath Adak. The defendant/respondent purchased the said holding from Satyendranath Adak by a registered deed of sale dated 7th May, 1982. It is further contended by the defendant/respondent that on the southern side of his land, he left out a strip of land approximately 1 ft. 9 inch in width as side space for the purpose of repairing of his boundary wall which was claimed by the plaintiff illegally. The plaintiff is claiming C schedule property by virtue of deed of purchase dated 6th September, 1994 from the heirs of Baridhi Bilas, though at the relevant point of time the legal heirs of Baridhi Bilas had no title over C schedule property.

(3.) Subsequent to the filing of the said suit, the defendant of Title Suit No.204 of 1997 filed Title Suit No.104 of 1998 against the plaintiff of the said suit praying for declaration of his title over the piece and parcel of land with building measuring about 1 cottah, 12 chitaks and 35 sq.ft in holding No.44/A/1 Hem Chakraborty Lane on the selfsame averment as taken by way of defence in Title Suit No.204 of 1997. The plaintiff/appellant as defendant of Title Suit No.104 of 1998 filed written statement containing, inter alia, the same averment as made out by him in the plaint of Title Suit No.204 of 1997, with counter claim in respect of "A" schedule property.