D.K.SEN, J. - (1.) Macneill and Magor Ltd. the plaintiff No. 1 and Denzil G. Stephens, the plaintiff No. 2. instituted this Suit on or about the 29th Aug., 1979 against Mohsen Ali, the defendant No. 1 and M. H. Khaleeli, the defendant No. 2, claiming, inter alia. a) A declaration that the defendants are not entitled to cause any obstruction to or interfere with the free ingress and egress to and from the building at premises No. 217, Acharya Jagadish Chandra Bose Road. Calcutta through the Northern Gate and the user by the plaintiffs of a space delineated in the sketch plan annexed to the Plaint. b) A perpetual injunction restraining the defendants from interfering with the right of the plaintiffs to have free ingress and egress to and from either flat in the said building through the said northern gate and/or user of the said space for the aforesaid purposes or from fixing any chain or any other device for obstructing the opening of the said gate or from creating any other obstruction or interference in any manner whatsoever. c) A mandatory injunction directing the defendants to forthwith remove a chain from the, said gate of the said premises and to allow free ingress and egress to the plaintiff No. 2 through the said gate and the user of the said space.
(2.) The material facts constituting the cause of action of the plaintiffs in this, suit are inter alia, as follows: a) The defendant No. 2 is the owner of the land and building at premises No. 217, Acharya Jagadish Chandra Bose Road, Calcutta, hereafter referred to as the said premises; b) The defendant No. 2 let out a flat situated on the second floor of the building in the said premises on and from the 1st June 1970 to the plaintiff No.1 for residence of its Officers at a stipulated rent initially for a five years with option to the plaintiff No. 1 to renew the same for another five years. c) The terms and conditions of the tenancy were recorded in a letter dated the 18th June, 1970 but prior thereto it was expressly represented by the defendant No. 2 that the plaintiff No. 1 and the occupiers of the said flat would be entitled to the user of a space in the courtyard on the western side of the said premises for ingress to and egress from the said flat and also for parking motor vehicles therein. d) The said agreement of tenancy was concluded at the office of the plaintiff No. 2 within the original civil jurisdiction of this Court. e) The right to user of the said space was, in the alternative, a licence coupled with the grant of the said tenancy and in the further alternative was a right in the nature of easement annexed to the tenancy. f) The plaintiff No. 2 has been in occupation of the said flat on and from July 1970 continuously and the plaintiffs have enjoyed the user of the said space in the courtyard as also the user of the northern gate in the said premises. g) The defendant No. 1 claims to be an authorised representative of the defendant No. 2 and a care-taker of the said premises. h) Since 24th Dec. 1978 the defendants wrongfully kept the northern gate in the said premises locked with a chain and interfered with the user of the plaintiffs of the said space in courtyard and obstructed the plaintiffs in their ingress to and egress from the said flat through the said northern gate.
(3.) On a notice dated the 28th Aug., 1979 the defendants made an application in the suit for the following orders:- a) The suit be dismissed with costs for want of jurisdiction. b) Alternatively, the plaint filed in the suit be rejected and taken off the file.;