SUNIL KUMAR DAS Vs. SUSHIL KUMAR SETH

JUDGEMENT

(1.) Title Suit No. 496 of 1966 instituted before the learned Munsif, 2nd Court, Barasat for declaration of title, khas possession, mandatory and permanent injunction, and mesne profits by the plaintiffs (predecessors-ininterest of the opposite parties) against the defendant (predecessor-ininterest of the petitioners) was decreed on February 28, 1972, ex parte, with costs. While granting relief to the plaintiffs, the learned Munsif, inter alia, permanently restrained the defendant by a decree of perpetual injunction from creating any obstruction on ka schedule suit land.

(2.) Thereafter, transfer of the properties, forming subject matter of the suit, was effected by the decree-holders in favour of the opposite party. Upon such transfer being effected, the opposite parties levied execution of the decree. Title Execution Case No.29 of 1986, was registered. It was alleged that the petitioners had defied the decree of permanent injunction in respect of ka schedule suit land (Dag No.1008) by raising construction of a wall thereon, thereby obstructing the opposite parties from enjoying the said property and also preventing them from opening their doors and windows. The execution case has since been transferred to the Court of the learned Civil Judge (Junior Division), Barackpore and renumbered as Title Execution Case No. 16 of 2001.

(3.) The petitioners by filing a written objection denied the material allegations made against them. It was their specific case that they had constructed the wall on a non-suit land i.e. Dag No. 1007 and not on the suit land i.e. Dag No.1008. It was also their contention that the disputed passage is not the suit property as described in schedule ka of the decree, but it is their own private passage which they have been using since time immemorial.