SACHINDRA NATH SARKAR Vs. BINAPANI BASU
HIGH COURT OF CALCUTTA
SACHINDRA NATH SARKAR
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Salil Kumar Datta, J. -
(1.)This is an appeal against judgment and decree of reversal. Plot Number 83 Mouja Andul P.S. Sankrail is a common passage in which the plaintiffs and the defendants, as transferees, are co-sharers. The common passage is flanked on one side by the houses of the plaintiffs Nos. 1 and 2 and on the other side by the houses of the plaintiff No. 3 and other defendants. According to the plaintiffs' case, the common passage was created for ingress and egress, space for repairs of structures, passage for light and air, and rain water and also for laying electric wires. There was an agreement to keep the common passage open to the sky for beneficent enjoyment of the dwelling houses on either sides of the common passage and their privacy was thereby maintained. The defendants by force completed all arrangements to construct a balcony from their house over the common passage. It was said that the defendants had no right to make such construction, which if made would cause permanent obstruction to the common passage and change its nature and character causing irreparable injury to the other owners, the plaintiffs. The plaintiffs in the circumstances instituted the suit for permanent injunction restraining the defendants from making any construction over the common passage.
(2.)The defendants filed their written statement denying that there was any agreement among co-sharers to keep the common passage free upto the sky-Further, it was said, there would be no obstruction to the common passage as the balcony 16 2/3' X 2 1/2', would be supported by the first floor roof of the defendants' house, covering only an insignificant portion of the common passage while there would be no occasion for affecting the light and air to the plaintiffs' residences as they are far away from the proposed balcony.
(3.)The learned Munsif, on a trial of evidence, held that every co-sharer has the right to use every part of the joint pathway, which was not a public pathway. The proposed construction would reduce the gap of 5 1/2' to 3' encroaching the pathway. The defendants had no such right to encroach the common pathway and the question of encroachment of light and air or of agreement was immaterial. The suit was accordingly decreed and the defendants were permanently restrained from making any construction over the common passage.
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