B.Panigrahi, J. - (1.)This appeal is directed against the reversing Judgment and Decree dated 20.6.1978 passed by Subordinate Judge, Alipore in T.A. No. 1029/78 dismissing the plaintiff suit for permanent injunction. The facts leading to this appeal are summarily stated :-
(2.)The plaintiff No. 1 who is the appellant in this case who along with other co-plaintiffs filed the suit for permanent injunction against the defendant No. 1 restraining him from interfering with the construction work of a boundary wall on the eastern end of the common passage described in schedule 'A' to the plaint. Plaintiff No. 1 and the Plaintiff No. 2 whose interest was devolved upon proforma defendants 3 and 4 are the owners of the premises No. 16/C and 16/A situated in Abinash Chandra Banerjee Lane. The other plaintiffs namely, originally numbered as plaintiffs 2 and 4 are the joint owners of the premises No. 16/B, Abinash Chandra Banerjee Lane. The defendant No. 1/respondent is the owner of the premises No. 19/E, Abinash Chandra Banerjee Lane. The plaintiffs claimed that they set apart a passage with a width 6 ft. for their exclusive use which is leading to the Corporation Road, Abinash Chandra Banerjee Lane. This said passage extends up to the northern corner end of the premises of the appellant. The south-west corner of the appellant No.'s premises joint common passage. At the request of the defendant No. 1, the plaintiffs allowed him to draw the water pipe line along the passage. The appellant also made a gift of land measuring 3' x 33" from his own land on the north of his premises to Calcutta Municipal Corporation. The plaintiff No. 1 intended to erect a boundary wall at the extreme end of the eastern side of the common passage and collected materials for the said purpose. The defendant No. 1 had however not allowed the appellant from erecting the boundary wall which resulted in filing of the present suit. Thus, plaintiffs have filed the suit for permanent injunction against the defendant No. 1 from disturbing their peaceful possession and enjoyment of the common passage.
(3.)The defendant No. 1 however, disputed the possession and claimed that the suit passage does to exclusively belong to the plaintiff. On the other hand, it was claimed that the common passage is the 'bustee passage' over which he has a right of use. It further transpires that he claimed to have drawn an electric line so also pipe line which would demonstrate his exercise of right over the same, and has been using the passage for more than 12 years before the filing of the suit with tacit knowledge of the plaintiff without any interruption. Proforma defendants were substituted in the event of death of the plaintiff No. 2 who filed a written statement supporting the stand of the defendant No. 1.
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