- (1.) This revisional application is directed against Order No. 20 dated 19th July, 2016 passed by the learned Judge, 6th Bench, City Civil Court at Calcutta in Title Suit No. 358 of 2016. The defendant nos. 1 and 2 are the petitioners before this Court. It is the case of the petitioners that one Chandi Charan Pal was the original owner of premises nos. 3 and 4, Lindsay Street, Kolkata-700087 (hereinafter referred to as the said premises). The said Chandi Charan Pal by a registered deed of lease dated 17th August , 1967 leased out the said premises in favour of one Tara Sankar Ganguly and his brother Bhabani Sankar Ganguly. Tara Sankar Ganguly and Bhabani Sankar Ganguly became the lessees in respect of the said premises. It has been contended that the said Chandi Charan Pal executed a Will and Testament in favour of his daughter, Smt. Jyotsna Chandra, who subsequently by a deed of conveyance dated 25th January, 2010 sold and transferred the entire property in favour of a company namely Tug Developer Pvt. Ltd. and the said company became the absolute owner of the said premises. It has been further contended that the defendant/petitioner no.1 is the sub-lessee in respect of half portion of premises nos. 3 and 4, Lindsay Street and the defendant no.4 granted sub-lease in respect of his undivided half share or interest of the said premises in favour of the defendant no.1.
(2.) It has been stated by the petitioners that the plaintiff/opposite party no.1 is claiming to be the sub-lessee in respect of 50% undivided share over and above the premises nos. 3 and 4, Lindsay Street having acquired the same from one Tara Sankar Ganguly by a Deed of Assignment dated 30th May, 2014. It is the case of the petitioner/defendant no.1 that he prayed for permission before the superior landlord/ owner of the said premises vide its letter dated 12th February, 2016 for construction of an underground water reservoir. The said landlord/owner duly permitted the defendant no.1 to construct the underground water reservoir. The petitioners submit that the owner of the said premises has already given consent to the defendant no.1/petitioner for constructing the said underground reservoir. The defendant no.1 also submits that the building is lying and situated in a densely populated area just opposite to New Market and there is no other resources in the nearby place for water. He submits that recently and in the past also incidence of fire hazard took place in the locality. Therefore, according to him it is necessary that the defendant no.1/petitioner no.1 may be permitted to construct the said underground water reservoir at the said premises. According to the petitioner/defendant no.1 has started construction of water reservoir in compliance with the direction passed by the West Bengal Fire and Emergency Services and after obtaining permission from the superior landlord of the building he started digging out the space in the said premises which is used as a passage. The petitioners further submit that the said passage is exclusively used and occupied by 'Sreeleathers' a sister concern of the defendant no.1/petitioner no.1 for egress of their customers. According to the petitioners, the plaintiff has no right, title and interest over the said premises. Therefore, the plaintiffs' permission was not necessary. However, so far as the permission from the Kolkata Municipal Corporation is concerned, the defendant/petitioner no.1 duly applied and whereas water supply department of Kolkata Municipal Corporation has issued a 'No Objection Certificate' for such work.
(3.) The plaintiffs/opposite parties submit that the petitioner has no right to excavate the land in question and that the plaintiffs without permission from the competent authority have indulged in unauthorised construction in the said premises without taking into consideration the safety and security of the inmates of the building and without taking appropriate measures against the danger due to the storage of water into the dug out portion of the land which has become a mosquito breeding ground. The opposite party filed a suit for declaration that the defendant nos. 1 and 2 have no right to make any construction of water reservoir or any other nature of construction on the common passage of premises nos. 3 and 4, Lindsay Street. They have also prayed for permanent injunction restraining the defendant nos. 1 and 2 from making any construction and from proceeding with the work of constructions of the underground reservoir and/or causing any connection of the Ferule at the back side common passage of the premises nos. 3 and 4, Lindsay Street.;