NISHI KANTA SARKAR Vs. SIR DAVID EZRA

JUDGEMENT

(1.) These three suits have been heard together as their decision depends on the same facts. The main suit has been brought by Nishi Kanta Sarkar (to whom I shall refer as the plaintiff) against Sir David Ezra and Mr. Tylor Bryan, defendants 1 and 2, for damages for encroachment, for suspension and abatement of rent, and for a declaration that the plaintiff is entitled to the joint use of a common passage. Sir David Ezra is the lessor, and Sarkar and Bryan were lessees under him of Nos. 10 and 9, Chowringhee, respectively. In the other two suits Sir David Ezra sues Mr Sarkar for arrears of rent. In the main suit the plaintiff claims a right of user over a passage between his premises No. 10 and the premises No. 9, Chowringhee. It is common ground that a platform was built over that passage in July 1933, and was in position until July 1934. The plaintiff contends that it remained for a further two months before it was demolished. Both the defendants accept responsibility for the erection of the platform, and the plaintiff assesses the damages that he has suffered at Rupees 1,32,000. He also alleges that the platform encroached upon his premises and that he therefore was entitled to a suspension or abatement of rent from defendant 1. The plaintiff's lease is dated 12 December 1930. It provides that the plaintiff should hold the promises No. 10, Chowringhee Road, for a term of 10 years from 1 March 1931, on a monthly rent of Rs. 1,000, with an increase of Rs. 30 per month every three years; additions and alterations were to be made by the lessee at a cost of Rs. 12,000, to which the lessor was to contribute Rs. 4,000. The covenant around which the present dispute centres is 2 C, and is in the following terms: And the lessor will allow the lessee attachment and use of the north wall of premises No. 11, Chowringhee Read, for the purpose of constructions detailed in Schedule B hereof and will also allow or permit the lessee uninterrupted joint use with the occupiers of No. 9, Chowringhee Road, the entire 4 feet (four feet) passage in width along the south wall of the said No. 9, Chowringhee Road from the date of these resents, provided the lessee obtains the consent of the tenants concerned.

(2.) No. 10, Chowringhee is to the south of No. 9, Chowringhee, a road which runs north and south and to the west of both premises. There is some dispute as to the width of the passage described in the lease as "4 feet wide," but it is common ground that a space from 4 to 5 feet wide appertained to No. 9, Chowringhee, on its southern boundary which was marked by a low boundary wall. Defendant 2 was in occupation of No. 9, Chowringhee, under a lease from defendant 1 for a term of five years from 1 July 1928. The plaintiff on obtaining his lease immediately started negotiations with defendant 2, so as to obtain his consent to use the passage as required by the terms of the lease. From the correspondence it is apparent that the plaintiff considered this consent a mere matter of form, while defendant 2 was doubtful of its effect on the amenities of his premises and was unwilling to give his consent without receiving some advantage in return. In. April 1931 defendant 2 went on leave out of India and the day before his departure, on 22nd April, certain terms were put on paper and signed by the plaintiff and defendant 2. Briefly these terms provided that the parties should have joint use of the passage described as "5 feet wide" and the plaintiff should, if called upon, take a sub-lease of a portion of the premises No. 9, Chowringhee.

(3.) One of the main questions in the suit is whether this document constituted a binding agreement between the parties, and I shall refer to its terms in detail hereafter. During the absence of defendant 2 his attorney called upon the plaintiff to take up the lease in terms of the agreement of 26 April. The plaintiff raised objections, and on 17 June 1932. defendant 2 brought a suit against the plaintiff for specific performance. In January 1933 that suit was withdrawn and stood dismissed with costs. On 22 July, 1933, the defendants erected a platform, about 5 feet wide and 50 feet long adjoining the south wall of No. 9, Chow ringhee. This platform was removed a year or 14 months later. The plaintiff contends that this platform obstructed the passage to No. 10, Chowringhee, caused an excess of water to collect, and drove away his tenants. On 14 May 1934, he filed this suit for damages which he assessed at Rs. 1,32,000, and claiming that he was entitled to suspension of rent, he ceased payment, but without prejudice deposited with his attorneys a sum of Rs. 8,000. On 4 July 1934, Sir David Ezra brought a suit for arrears of rent and municipal taxes, and on 25 June 1935 he sued for further arrears of rent amounting to Rs. 13,680. It is agreed by both parties that if the Court holds that the plaintiff is entitled to damages, the amount of such damages must be referred, but evidence has been given by the plaintiff and his tenants in support of the plaintiff's case that damage was in fact incurred. The following issues have been framed: