M.M. Dutt, J. - (1.) This appeal' is at the instance of the - plaint -tiff and it arises out of a suit for declaration of a right of way and for permanent injunction.
(2.) The case of the Plaintiff is that the properties mentioned in schs. A, B, C and D of the plaint belonged to one Anil Raha. Schedule A land is a private road and it has been for more than thirty years used and treated as the common passage for ingress and egress to and from the land and properties mentioned in schs. B, G and D. It is alleged that the said passage in sch; A is; absolutely necessary and is indispensable for the beneficial enjoyment of the premises situate in the land mentioned in schs. B, C and D of the plaint. By a sale deed dated January 20, 1953 the said Anil Raha transferred to the Plaintiff the land and house described in sch. B of the plaint and also granted a right of way and passage over the private road mentioned in sch. A. The relevant portion of the sale deed, which is Ex. 1 relating to the private road, is as follows: ...Provided that so long as the main double storied building of the vendor lying to the north -west of the premises hereby sold shall remain as the personal property the vendor and his heirs, executors and legal representatives and shall not be transferred to some other party, upto that point of time the purchaser shall not claim or be entitled to claim any right of way over the private road of the vendor, CS. plot No. 6000 of mouja Asansol Municipality. But be it specifically provided that as soon as and whenever the vendor or his heirs, executors or legal representatives shall cease to be the absolute owner of the said double storied main building of the vendor lying to north -west of the premises hereby conveyed and the said double storied main building of the vendor shall be transferred to some other party, from that point of time onwards the purchaser shall have and shall continue to have a right of way and passage over the said private road of the vendor, CS. plot No. 6000, from S. B. Raha Lane upto the easternmost portion of that private road and thereafter the said right of way and passage shall run with the land and premises and tank and its banks hereby conveyed.
(3.) Previous to the transfer of the land and house described in sch. B o*f the plaint to the Plaintiff, the said Anil Raha transferred by a document dated December 18, 1950, the land and properties mentioned in sch. C of the plaint to the pro forma Defendant and also granted to the pro forma Defendant a right of way and passage over the private road as mentioned in sch. A of the plaint. By another document dated January 31, 1957, Anil Raha transferred to the Defendant No. 1 in the benami of the Defendant No. 2 the property mentioned in sch. D of the plaint lying to the north -west of the premises sold to the Plaintiff by Ex. 1. It is alleged that the Defendant Nos. 1 and 2 purchased the sch. D property with the knowledge of the pre -existing rights and title of the Plaintiff and the pro forma Defendant with regard to the private road mentioned in sch. A of the plaint. In 1953, the Plaintiff built a house on sch. B land and his vendor Anil Raha assured the Plaintiff that she would have a right of way over the private road mentioned in sch. A of the plaint. The Plaintiff thereafter built her main gate abutting on the private road and it is alleged that this is the only entrance for vehicles into the premises of the Plaintiff. It is further alleged that the Plaintiff has been using the private road as a passage as of right since her purchase and that the Defendants Nos. . 1 and 2 purchased the sch. A land subject to the right of way in favour of the Plaintiff and the pro forma Defendant. It is the Plaintiff's case that the Defendants Nos. 1 and 2 have been interfering with the said right of way of the Plaintiff over the private road and as such the Plaintiff filed the said suit for the reliefs afore' said.;