NANI BALA SAHA Vs. CHARU BALA SAHA

JUDGEMENT

(1.) This appeal is at the instance of the defendants and it arises out of a suit for permanent and mandatory injunction.

(2.) The plaintiff No. 1 is the wife and the plaintiff No. 2 Joykrishna Saha is her husband. The defendants Nos. 1 and 2 are respectively the widow and the son of one Subal Krishna Saha, since deceased, the elder brother of the plaintiff No. 2 Joykrishna Saha. There was an amicable partition of joint properties among Subal Krishna Saha, Joykrishna Saha and one Bibhuti Bhusan by a registered deed of partition dated June 2, 1954. The disputed house, which is a five storied one, situate at P-98, B. K. Pal Avenue, Calcutta was allotted to Subal Krishna Saha and Joykrishna Saha and the same was also partitioned between the said two brothers in accordance with a plan annexed to the said deed of partition and on terms and conditions mentioned therein. The house was divided into two portions.--Lot A and Lot B. Lot A, being the front portion, abutting on the B. K. Pal Avenue, was allotted to Joykrishna and Lot B, the rear portion, was allotted to Subal Krishna. A common passage, 10 ft. in width, was created in the southwestern portion leading from B. K. Pal Avenue up to the allotment of Subal Krishna and lying on the south of the allotment of Joykrishna. Lot A has since been numbered as 16B, B. K. Pal Avenue and Lot B as 16A, B. K. Pal Avenue.

(3.) There was some trouble between the two brothers in effecting the partition by metes and bounds by raising partition walls. The plaintiffs filed a suit being Suit No. 1778 of 1957 in the Original Side of this Court. That suit was eventually settled between the parties. The plaintiffs also filed another suit being Title Suit No. 19 of 1972 in the City Civil Court, Calcutta which was transferred to the Original Side of this Court at the instance of Subal Krishna. Thereafter, good feelings were restored between the parties. Subal Krishna died on Feb. 15, 1968 leaving behind him the defendant No. 1, his widow, and the defendant No. 2, his only son, as his heirs. Good feelings between the parties also continued even after the death of Subal Krishna. Fresh quarrels and disputes between the parties again started. The principal dispute between them centres round the construction of partition walls across the roadside balconies allotted to the defendants. Further, it was alleged by the plaintiffs that on Sept. 23 and 25, 1972 the defendants commenced building of an unauthorised structure on a portion of the common passage and they also encroached upon the plaintiffs' land by making a roof of an iron sheet and projecting the same against the roof of the plaintiffs' garage. It was the plaintiffs' case that the defendants had been preventing them from constructing the partition walls on the balconies. Accordingly, the plaintiffs prayed for a mandatory injunction directing the defendants to remove and demolish the constructions raised by them in the common passage and to remove the water pipes and other pipes and electric cables laid under the common passage adjoining the plaintiffs' land. Further, it was prayed that the defendants should be directed to remove the corrugated iron shed put up over the plaintiffs' garage on the south eastern corner. The plaintiffs also prayed for a permanent injunction restraining the defendants from preventing the plaintiffs from constructing the partition walls on the balconies.