BHAGWAN DAS Vs. RASH BEHARI MULLICK

JUDGEMENT

(1.) The facts are as follows: There was a large rambling building abutting on the north side of Shibu Thakur's Lane in Calcutta known as No. 67, Shibu Thakur's Lane. Some four years ago it was partitioned by a decree in a suit between Rash Behary Mullick, the complainant's predecessors, and one Bansidhar, the predecessor-in-title of the petitioners. According to this decree 3/4 of the building, on the south, i.e., adjoining Shibu Thakur's Lane, was allotted to Bansidhar, while ?th on the north or rear of the premises was given to the complainant. In order to provide access to the portion that fell to the complainant, it was agreed that a strip of land 4 feet broad along the eastern boundary of the premises allotted to Bansidhar should remain open for ever. At the time of the partition, portions of the southern end of the building were partly one-storied, partly two-storied and partly three-storied. After the partition had been carried out, the two partitioned portions were separately assessed, and numbered 67 and 67-1 respectively--67 representing the smaller and most northern-most portion in the possession of the complainant, Rash Behary Mullick, and 67-1 representing the southern-most portion now owned by the petitioners. In November 1906, Bansidhar obtained sanction to re- build his portion according to a sanctioned plan (Exh. C since transferred to the file of the other case).

(2.) The alterations made by Bansidhar were chiefly in the southern-most portion of his premises so that although these were raised to 3 stories the complainant's portion, i.e., No. 67 was not materially affected. Bansidhar, however, deviated from the sanctioned plan, and built the portion abutting on the lane 2 ft. 6 in. higher than he should have done.

(3.) He was subsequently after enquiry, ordered under Section 449 to demolish the unsanctioned portion of the third story within 2 months. He failed to comply with this order and proceedings were then taken against him under Section 580. As, however, he died during their pendency, they were withdrawn.