KAMALAKANTA DE Vs. RADHABALLAV KUNDU

JUDGEMENT

(1.) THE instant appeal and the cross objection arise out of a suit for declaration of right of easement and for permanent and mandatory injunctions.

(2.) THE plaintiffs arid the defendants are the owners of two adjacent buildings, intervened by a lane measuring 55' in length and 3' in breadth within the municipal limits of Bankura Town. The' lane belongs to the defendants and the plaintiffs have a rights of passage over, the same. The building of the defendants is one storied and is used as a shop room. It is holding No. 98 of Katwali Mahalla of Bankura Municipality and is on the west of the lane. The two storied building of the plaintiffs is holdings No. 100 and is to the east of the lane. The plaintiffs have another one storied building being holding No. 99 to the south of the defendants' building and the lane. The two buildings No. 100 and No. 98 are to the south of the municipal road known as Subhas Road and about on it. This road runs from east to west and the intervening lane between the two buildings starts from the north eastern corner of the plaintiffs' one storied building of holding No. 99 and comes up to the said municipal road. There are three doors in the two storied and one door in the one storied buildings of the plaintiffs which face the intervening lane and the plaintiffs are in occupation of their buildings through tenants. Plaintiffs' right of passage through the lane has been recorded both in C. S. and R. S. record of rights. There is and narrow drain which lies to the eastern extremity of and runs parallel to the land. In holding No. 100 there is a covered verandah on the first floor to its extreme north and there are two rooms one after another on the south of the verandah. The verandah has a big opening with iron railings on the northern side. On each of the eastern and western walls of the verandah there is a window, the window on the eastern wall being smaller in comparison to the window on the western wall. The room just to the south of the verandah has a door and two windows in its northern wall, two windows in its western wall, two small windows in its eastern wall and one door and one window on its southern wall. The next adjoining room has two windows in its southern wall facing the open space from the court-yard and one window in its western wall besides there is a door at the eastern end of its southern wall.

(3.) ACCORDING to the plaintiffs, the defendants constructed a cement concrete projection, about 6,1/2 cubits above the ground over some portion of the intervening lane for the purpose of Constructing a septic privy and,, chamber on the said projection and also raised walls on the first floor of their buildings for the purpose of constructing a second story, at a distance of only about 3 feet from the western wall of the plaintiffs' roadside building. The plaintiffs claim that through the doors of the ground floor of their houses, both the plaintiffs and their tenants come out on the lane and then to the municipal road and through the narrow drain in the lane the water from their houses is discharged. According to the plaintiffs as they have been enjoying such right peaceably, openly and uninterruptedly for more than 25 years, they have acquired absolute right of passage and drainage through the lane and that by the illegal construction of the aforesaid projection their right of passage and of discharging water is being impaired. The plaintiffs further contend that if the defendants are allowed to construct the second storey of their building their right of access and use of light and air to their rooms on the second storey, which they have been enjoying as an easement for more than 25 years-since the time of their predecessor in interest will be affected. They also allege that the proposed constructions of the defendants will not only infringe their easement right but will also impair and deteriorate the sanitary condition of their rooms. To reinforce their contentions, they rely upon rule 40 of schedule VI of the Bengal Municipal Act, which came into force in Bankura Town from September 18, 1954, which prohibits any construction, addition or alteration within 6' feet 'of the adjacent domestic building.