- (1.) The present application is filed for the review of the judgment dated 27.07.2007 passed in F.A. No. 10 of 2005 dismissing the appeal preferred by the Plaintiff/Appellant against the judgment and decree of dismissal dated 15.06.2004 passed in Title Suit No. 2044 of 1997 by the learned Judge, 10th Court City Civil Court, Calcutta.
(2.) In the Court below the Plaintiff instituted Title Suit No. 2044 of 1997 praying for a decree for mandatory injunction directing the Defendant/opposite party to remove and/or dismantle the staircase on the common passage at the cost of the Defendant as per the terms of settlement in a compromise decree passed by this Hon'ble Court in a Partition Suit No. 646 of 1960.
(3.) One Sephali Patra filed the above suit against one Lilabati Dashi for partition of premises No. 63, Shyambazar Street, formerly known as No. 111/1 Shyambazar Street, in the Original Side of this Hon'ble Court. The said Lilabati Dashi was substituted by her descendants Kartick Chandra Pal and Harinarayan Dey. The said suit ended in a compromise decree on 01.10.1962 in terms of which Sephali Patra got the back portion of the said premises together with the right of way in the passage of the front portion which leads from Shyambazar Street to the said back portion which was identified under Lot 'B' of the plan annexed to the said decree. On the other hand Kartick Chandra Pal and Harinarayan Dey jointly got the front portion of the said premises identified under Lot 'A' of the said plan under certain conditions. Some of the clauses of such compromise decree are quoted below for the purpose of better appreciation of the judgment under review. Clause-5: The back portion of premises No. 63, Shyambazar Street, Calcutta described in Lot 'B' of the schedule below and demarcated in the plan annexed hereto and marked 'B' and therein bounded by yellow borders is hereby allotted to the Plaintiff. Clause-6: It is declared that the front portion of the said premises described in Lot 'A' of the said schedule and demarcated in the said plan and marked 'A' and therein bounded by red borders is hereby allotted to the substituted Defendants the Defendant Kartick Chandra Paul having one equal fourth part of share herein and the Defendant Hari Narayan Dey having three equal fourth parts or shares therein. Clause-7: To equalies the said partition the substituted Defendant Harinarayan Dey shall on or before the putting in of these terms pay to the Plaintiff Rs. 5,500/- (Rupees five thousand five hundred only) by way of owelty money and the said amount having been paid by the Defendant Hari Narayan Dey one equal half part or shares in the lot 'A' shall belong to the said Hari Narayan Dey alone. Clause-8: Within 6 months from the date of these terms of settlement being put in, the Plaintiff and the Defendant Kartick Chandra Pal shall sign execute and register in favor of the said Hari Narayan Dey a proper conveyance in respect of the said half share in Lot 'A'. Clause-9: The said Defendant Harinarayan Dey shall also within one month from the putting in of these terms pay to the Plaintiff Rs. 80/- (Rupees eighty only) in payment of the Defendants share of the Municipal Taxes in respect of the suit premises. Clause-10: The parties will have right to way in the passage leading from Shyambazar Street to the said back portion described in lot B, the said passage being marked 'X' to 'Y' in the said plan and therein coloured burnt ciena with liberty to lay drain, swear, filtered and unfiltered water pipes, and electrical and telephone connections under or over the same. Clause-11: The aforesaid passage will be maintained by all the parties herein. Clause-12: Immediate steps shall be taken by the parties herein to eject the existing tenant occupying a portion of the said front portion of the suit premises costs whereof however will be borne by the substituted Defendants only. Clause-13: The Plaintiff will have no claim for any or all damages, costs, recovery of arrears of rent and any other relief that may be granted by the court in respect of eviction of the said tenant which the substituted Defendants undertake to get at their own costs. Clause-14: Within six months from the date of obtaining vacant possession of the portion of the said premises in possession of the said tenant the substituted Defendants will at their won costs and with the necessary co-operation of the Plaintiff do or cause to be done all that is necessary for having separate Municipal Premises numbers for the said back portion and front portion of the suit premises and also do or causes to be done for effecting the same, the following acts, matters and things or such of them as may be required by the Corporation of Calcutta. To dismantle the thatched portion with the stairs marked "P" in the plan annexed hereto and marked "B" in such a way as to make the passage on the ground floor marked "X" to "Y" in the said plan and colored burnt ciena through passage from the public road on the East leading to the said back portion of the said premises and to close the existing gate marked "C" permanently by brick work.;