- (1.) This is an application under Article 227 of the Constitution of India. The petitioner is aggrieved by the judgment and order dated 26th August, 2008, passed in appeal, being Misc. Appeal No. 443 of 2006, by the learned Additional District Judge, Alipore. An appeal was instituted before the said learned Judge from an order of a learned Munsif refusing an order of injunction restraining the petitioner from claiming exclusive rights over a passage alongside a building. The learned Additional District Judge granted the order of injunction, against which the petitioner has come up before this court in this Revisional Application. BASIC FACTS:
(2.) There is a substantially large property abutting on Rash Behari Avenue, Kolkata. There is a four storied building with a frontage on that road. It has some land appertaining to it on the back and to its west. The building and the land measure about 3 cottahs 5 chittaks and 30 sq. feet. The premise is numbered as 208/1 Rash Behari Avenue. It is owned by the respondents. At the back of that property there is another property which also has a four storied building. Its owner is the petitioner. Right along these two buildings there is a 8 ft. wide passage having a length of 57 ft. 6 inches. It runs north to south from Rash Behari Avenue alongside these two buildings to their east. This passage is part of the rear property. The said property along with the passage measures 3 cottahs 5 chittaks 5 sq.ft. The dispute is with regard to this passage. According to the petitioner, he has exclusive rights of user of this passage. It is said that the respondents have a very wide frontage, appertaining on Rash Behari Avenue.
(3.) The battle over easement rights over this passage has been raging for quite sometime, not only between these parties, but their predecessors in interest. Now, the history of the dispute. This large property at one point of time belonged to one Phani Mohan Banerjee. He purchased it on 22nd December, 1941. On 7th February, 1947, the said front portion was gifted by him to his daughter Smt. Bivarani Chatterjee. On 19th November, 1954 Phoni Mohan sold the remaining land to one Basanti Devi (Gupta). On 11th June, 1956, Smt. Basanti Devi (Gupta) sold the property to Smt. Arati Guha, the mother of the petitioner, now deceased. Now, all these conveyances stipulated that enjoyment of the rear property was subject to the easement right of egress and ingress over the passage of the owner of the front property. ORDER OF T.K. BASU, J.: A writ application filed in this Court by Smt. Arati Guha in 1979 has become very important for the purpose of determination of this application. The Calcutta Municipal Corporation had sanctioned a building plan in favour of Smt. Bivarani Chatterjee. Smt. Arati Guha was aggrieved by such sanction. She thought that construction in terms of that plan would encroach upon her right to use the said premises. She filed a writ application in this Court being Matter No. 434 of 1979. That writ application was dismissed on 16th August, 1979 by T.K. Basu, J. But some findings in the judgment have been used by the petitioner to support his case in this application. It is said that this Court held that Smt. Chatterjee had only an easementary right of support on that passage if she constructed a building on her land. Therefore, apart from the said right of support Smt. Bivarani Chatterjee had no other right. The respondents being successors in interest of Bivarani Chatterjee had only those easement rights which she had and none other. If Bivarani Chatterjee had the right of egress from and ingress into the passage that right had been given up in Court. SUIT OF 1983:;