BRAJESHWARY DASI Vs. NITYANANDA DAS

JUDGEMENT

(1.) This is a plaintiff's appeal against the decision of the Subordinate Judge of 24 Parganas, dated 28 November 1925, which reversed the decision of the Munsif of Alipur, dated 1 July 1924. The plaintiff commenced the suit for the removal of a verandah and a wall which Obstructed her windows. The case stated in the plaint is that premises No. 91, Kansaripara Road, Bhawanipur, which is at present numbered as 570 of the said road, belonged to the plaintiff's father. Kakhal Chandra Das. The plaintiff purchased a part of this premises from her father on 20 February 1906 and has been in possession of it since her purchase. There is a verandah on the north of the purchased land which she, the plaintiff, claims, passed to her by the conveyance of 20 February but the land underneath the verandah remained with the vendor, her father. There was a stipulation in the deed of sale of 1906 that, if the plaintiff required, the verandah will be removed by the plaintiff's father in case the plaintiff required the same for the purpose of effecting repairs to the purchased land and building. There were also two windows on the disputed land which have been in existence, as the evidence shows, since the building was erected so far back as 50 years from now. The defendant, who is the son of Rakhol and the brother of the plaintiff, has raised a wall right across these windows and this has given rise to the cause of action for the removal of the wall. The defendant, who has now succeeded to Rakhal's estate after his death, also refused to remove the verandah although the plaintiff required the removal of the verandah for the purposes of effecting repairs to her building. Several defenses were taken to the suit by the defendant. It was stated that, according to the terms of the deed of sale the defendant is not bound to remove the verandah and that the house does not want repairs. It was further stated that, the windows open on the private apartments of the defendants and the wall does not harm the plaintiff in any way.

(2.) These defences were negatived by the Munsif who granted a decree to the plaintiff and directed that the defendant do remove his verandah and wall within a certain date and, if he refused to remove the same, the plaintiff might remove the same at her own cost and then realize the costs from the defendant and that the plaintiff should be given sufficient access of air and light through the two windows which formed the subject-matter of the plaint. An appeal was taken against this decision of the Munsif to the Subordinate Judge 24 Parganas. The learned Subordinate Judge reversed the decision of the Munsif with reference to both the causes of action. He held with regard to the removal of the verandah that the best evidence hag not been produced to show that the plaintiff required the removal of the verandah for the purpose of effecting repairs. The plaintiff examined her son, her son-in-law and another witness who all testified to the fact that the plaintiff's house was in a bad condition and required repairs. The learned Subordinate Judge seems somewhat hypercritical in his criticizm of the evidence of these witnesses who were most competent to speak to the fact as to whether the house required repairs or not. The learned Subordinate Judge proceeds to state that, in his opinion, there should be definite and best evidence regarding the need for repairs before the defendant can be called upon to remove the verandah in question, and such evidence has not been produced. I think, on a construction of the kobala, it was enough if the plaintiff came to Court and said that she required the removal of the building for the purpose of effecting repairs. The language of the deed of sale is as follows:

(3.) If in future you require to repair your buildings then I shall demolish and remove the verandah.