- (1.) THIS is an application for review of judgment dated 30th of November, 2012 passed by this Court in Second Appeal No.38 of 2004. It is the case of the appellant petitioners that the impugned judgment dated 30th November, 2012 suffered from errors apparent on the face of the record and hence the same should be reviewed.
(2.) THE O. P.s. as plaintiffs filed a suit (Title Suit No.168 of 1991) alleging that the Tagore Land Development Ltd. (proforma defendant No.) being owner of a vacant land measuring one bigha 13 chittaks 23 square feet being piece and parcel and portion of premises No.31 Kakurgachi Road, Phool Bagan 24 Pgs. (South) divided the same into nine different plots each measuring 2 cottahs 13 chittaks and 35 square feet of land along with 10 feet common passage lying to the north of plot Nos. 2, 3, 4, 5, 6, 7 and south of plot No.1, 8 and 9, and 8 feet common passage lying to the east of plot Nos. 7 and 4 and west of plot Nos. 5 and 6. It is further case that those plots were sold out to different purchasers including present plaintiffs giving them right of ingress to and egress from the respective plots through those common passages for going to the main road as well as for using the same for other purposes for beneficial enjoyment of the plots. It is specific case that the defendant No.1 purchased plot Nos. 6 and plot No. 9 from the purchasers of those plots on different dates and that the defendant No.1 and her husband (defendant No.2) managed to obtain a deed of conveyance from proforma defendant No.4 in respect of the 10 feet wide common passage lying in between plot No.6 and plot No.9 ('A' schedule property) and that the deed of conveyance dated 1st of March, 1989 was collusive, illegal and void. It is further case that those defendant Nos. 1 and 2 managed to obtain an order of amalgamation of said 'A' schedule property with plot Nos. 6 and 9 from defendant No.3 Calcutta Municipal Corporation and started to make constructions on said 'A' schedule property infringing plaintiffs' right to use the same as common passage. Accordingly, the plaintiffs pray for a permanent injunction restraining defendant Nos. 1 and 2 from encroaching any portion of 'A' schedule property and for mandatory injunction with a direction upon the defendant No. 3 CMC for recalling the plan, if any, sanctioned for construction for over 'A' schedule property. Defendant No.1 and 2 filed the written statement alleging inter alia that the suit passage ('A schedule property) lying between plot Nos. 6 and 9 was a 4 private passage and not a common passage and that there was no scope of using the same as a common passage by other plot holders and that those defendants purchased the same from the lawful owner i.e., proforma defendant No.4 and that Calcutta Municipal Corporation rightly granted an order of amalgamation of those three plots namely plot Nos. 6, 9 and 'A' schedule property. The defendant No.3 Calcutta Municipal Corporation also filed a written statement supporting the defendant Nos. 1 and 2.
(3.) THE Tagore Land Development Ltd. (proforma defendant No.4) also filed a written statement supporting the case of the defendant Nos. 1 and 2. However, neither CMC nor proforma defendant No.4 contested the suit.;