B.C.Mitra, J. - (1.) This appeal arises out of a judgment and order of Sinha, J., dated February 16, 1959, discharging the rule nisi issued on March 18, 1958.
(2.) The facts out of which this appeal arises are that premises No. 84A Beniatolla Street previously formed part of No. 84 Beniatolla Street. Prior to 1925 the said premises No. 84 Beniatolla Street belonged to the predecessors in title of the Appellants. A suit was filed in 1939 for partition being Suit No. 30 of 1939. A preliminary decree for partition was passed by consent of parties on November 24, 1951. By this decree the appellants were allotted the front petition of No. 84 Beniatolla Street which has since been numbered as 84 Beniatolla Street. The co-sharers of the appellants were allotted the back portion which is now numbered as 6A, Barwaritolla Lane.
(3.) In 1948 the Appellant No. 1 Yudhisthir Kumar Dutta, applied to the Corporation of Calcutta for sanction of a plan for a building at No. 84 Beniatolla Street, though in fact it was intended to be a building at No. 84A Beniatolla Street. This application was rejected. Thereafter on or about May 28, 1948, a fresh application was made for sanction of another building plan also at No. 84 Beniatolla Street. This plan was sanctioned and numbered as 105. It was described as an "Additional Plan" of premises No. 84 Beniatolla Street. A three storied building was constructed on the basis of this sanction. But the building as constructed was not in accordance with the plan, from which considerable deviations were made.;