Bibek Chaudhuri, J. - (1.) The instant second appeal is directed to be heard on the following substantial questions of law:- Whether both the Courts below committed substantial error of law by not holding that the plaintiff/respondent herein being the owner of holding No.29, Baje Shibpur 2nd Bye Lane at best claim for easementary right to use the 10 ft. wide common passage of the appellant only to the extent of ingress and egress to Baje Shibpur 2nd Bye Lane through their 4 ft. 4 inches passage and not beyond that or not.
(2.) Now the facts that resulted in filing of the suit by the respondent/plaintiff:-
(3.) The plaintiff instituted Title Suit No.199 of 2009 in the 2nd Court of the Learned Civil Judge (Junior Division), Howrah stating, inter alia, that he is the absolute owner of premises No.29, Baje Shibpur 2nd Bye Lane by dint of a registered deed of partition executed on 12th April, 1972. On the contiguous north of the plaintiff's premises, there is a 10 ft. wide common passage running from east to west and culminates with Baje Shibpur 2nd Bye Lane. The plaintiff and prior to his ownership, predecessor-in-interest of premises No.29 Baje Shibpur 2nd Bye Lane has been/had been using the said passage with all its easementary rights. They have been using the said passage for the purpose of ingress and egress upto the northern end of their house, for effecting repairing of the northern side wall and also for discharging rain water from the roof of their house etc. The electrical and water pipe lane of the premises of the plaintiff run beneath the said passage. Thus, the plaintiff has been enjoying right of easement over the said common passage continuously, uninterruptedly, openly and without any obstruction from the defendants or any other contiguous owner. The defendants, however, constructed a wall along the northern side of the plaintiff's premises and thereby blocked the plaintiff's free access to the said passage.;