DEBENDRA NATH BAGCHI Vs. SURENDRA NATH SUR

JUDGEMENT

(1.) In this case the plaintiffs are the owners of certain premises known as No. 43, Bagh Bazar Street in the town of Calcutta and the defendant ii the owner of the neighbouring premises on the west which is No. 42 of the same street. The street is on the north of both the premises, and No. 42 is on the west of No. 43. Between the two premises is a wall, a more particular description of which will become necessary in connexion with certain points in the case. The plaintiffs sue for a declaration that that wall is a boundary wall belonging to them. They complain that on the 17 of October 1921 the defendant raised this wall flush against the western wall of the plaintiffs premises to a height which may be roughly described as the top of the second storey. They say, first, that the wall belongs to the plaintiffs, and, secondly, that if that be not so, the windows and openings to the west of the plaintiffs building are windows and openings to which the plaintiffs have prescriptive rights of light and air, and they ask for a mandatory injunction to compel the defendant to pull down this wall on the ground that it interferes with their ancient light. They ask also by their plaint for damages in respect of the interference with their rights to light and air, and in the plaint there is mention of an interference by the defendant with a certain brick-seat at the northernmost end of the wall where it adjoins the street. They make complaint also that in raising the wall the defendant has interfered with and committed trespass upon certain cornices which are on the western wall of their house.

(2.) The first question h, whether or not this wall belongs to the plaintiffs and the learned Judge after a careful examination of the documents and on the evidence has come to the conclusion that the plaintiffs case on that question must fail. I agree entirely with the conclusion at which the learned Judge has arrived. The documents of title which bear upon the matter seem to be these : There is a document, dated the 15 of November 1878, which has not been produced, but it is really the root of the plaintiffs title. It is a conveyance from one Iswar Chandra Sadhukhan to Hari Narayan Mandal.

(3.) The first document produced by the plaintiffs is a document, dated the 30 of September 1880, whereby Mandal sold to the plaintiffs mother. In that Bengali conveyance the premises are described as "land and brick-built wall thereon," and again as "the said land and tiled hut inclusive of brick-built wall, etc.;" and the plaintiffs case is that the wall now in dispute is an old wall and is the wall that is referred to in that conveyance. There is in the conveyance itself nothing to show whereabouts that wall is on the plaintiffs property. It may be on the western side, on the southern side, or anywhere else. It is true that the property which bounds the plaintiffs property on the west is described as "vacant land of late Ishwar Chandra Sadhukhan."