DHOBANI DEI Vs. SUCHITRA MOHANTI

JUDGEMENT

(1.) The defendants have filed this appeal against the confirming judgment of the learned Third Additional Subordinate Judge, Cuttack. The late Dayanldhi Mohanty, the late Chittaranjan Mohanty and Niharranjan Mohanty (respondent 5) filed Title Suit 15 of 1973, against the present appellants (defendants). Following the death of Dayanidhi Mohanty while the appeal was pending in this Court, present respondents l(a) and l(b) have been substituted in his place. Chittaranjan Mohanty had died while the matter was pending in the lower appellate court and present respondents 2, 3 and 4 were substituted in his place in that court. Present respondent 6 was pro forma defendant 4 in the trial court.

(2.) The case of the plaintiffs may be briefly stated. Plaintiffs 2 and 3 and proforma defendant 4 are the sons of plaintiff 1. Deceased Bhanubati Dei was the wife of plaintiff 1. Defendants 1 and 3 are the wife and son respectively of defendant 2. The property described in schedule 'A' appended to the plaint including Ac. 0.44 decimals on the eastern side out of plot 528 was purchased by Bhanubati Dei, wife of plaintiff 1 for Rs. 1500/-by a registered deed of sale D/- 6-6-1949 from the owners, Mohan Samal and Padmalav Samal. Around the year 1965 defendant 1 purchased plot No. 529 adjoining plot 528 on the western side. When Bhanubati Dei was about to put up a construction on the western side of plot No. 528, defendant 1 suggested that a space of six links should, be left on the west of Bhanubati Dei's building as a joint path way, each party contributing three links, for facilitating repair and whitewashing of their respective buildings and for drainage of water. Accordingly Bhanubati Dei constructed her building over Schedule 'A' property leaving space of about three links on the western side and put up a boundary wall on the western side running north to south. However defendant 1 tried to close the aforesaid, vacant area to the west of Bhanubati Dei's western wall as a result of which Bhanubati Dei filed Title Suit 164 of 1957 against defendant 1 in the court of the First Munsif, Cuttack. The suit was disposed of in 1960 on compromise between the parties. According to the terms of the compromise, Bhanubati Dei, her masons and labourers would be entitled to come over plot No. 529 in order to effect repairs to the western boundary wall of Bhanubati Dei's house without any objection or hindrance by present defendant 1, a drain, 19' in length and, approximately 9" in breadth, would be constructed over plot No. 529 on the northern side of Bhanubati Dei's building to facilitate passage of drain water and Bhanubati Dei would pay Rs. 250/- to defendant 1. A sketch map indicating the aforesaid details was appended to the compromise petition and has been indicated in Schedule .'B' appended to the plaint. Defendant 1 received payment of Rs. 250/- from Bhanubati Dei and thereupon the compromise was acted upon by the parties. On the death of Bhanubati Dei in 1963 plaintiffs 1, 2 and 3 and pro forma defendant 4 succeeded to the estate of Bhanubati Dei including Schedule 'A' property. On 20-1-1973 the defendants in violation of the terms of compromise started digging a foundation on the northern side of the plaintiff's house and on the western side of the plaintiff's boundary wall for the purpose of greeting a building. The defendants also put up a thatch close to the western wall of its northern side. Apprehending that the proposed construction by the defendants would close the drain and, prevent the plaintiffs and their labourers to come over plot No. 529 to attend to repairs and whitewashing of the building, the plaintiffs were obliged to take shelter of the court. The plaintiffs have accordingly prayed for declaration of their right of passage over plot No. 529, for passage of drain water and for repair and whitewashing of their house, for permanent injunction against the defendants and for mandatory injunction with a direction to the defendants to demolish the obstruction to the drain and remove the thatch,

(3.) In their written statement the defendants have asserted that the plaintiffs are not entitled to any relief as they have not made out a case either of easement or grant of rights claimed by them. The plaint allegations are denied. It is denied that the parties had agreed to provide a drain, 19' in length and approximately 9" in breadth over plot No. 529 and that defendant 1 had tried to close any space to the west of Bhanubati Dei's western wall. It is asserted that since the terms of compromise allowed the plaintiffs to construct a drain over the plot of defendant 1 on payment of Rs. 250/-, the right of the plaintiffs is permissive in character and as such they cannot claim any right either over the drain or over plot No 529. The permissive right granted under the compromise was a personal right conferred upon Bhanubati Dei and as such the plaintiffs have not acquired any right in respect of the compromise. The plaint allegation that the compromise was acted upon by the parties is denied. It is also stated that plot No. 529 which is the subject matter of the present suit was not the subject matter of Title Suit 164 of 1957 and therefore the compromise is not binding on the defendants.