Sabyasachi Mukherjee, J. - (1.) This is a fight over flights, at a time when the world was feeling the thrill of man's flight to the moon - this Court had to concentrate in this Originating Summons on the rights of two claimants in three flights in a staircase in an old building in Calcutta.
(2.) One Sarat Chandra Mukherjee, since deceased, was the owner of land and property previously known as No. 3C Hidaram Banerjee Lane, Calcutta. The said land and property which was previously known as No. 3C Hidaram Banerjee Lane, Calcutta, comprised, inter alia, of land and property now known as No. 3C Hidaram Banerjee Lane, Calcutta, and No. 11/1/1A Chaitan Sen Lane, Calcutta. It appears that the said Sarat Chandra Mukherjee had three sons. Sarat Chandra Mukherjee made a Will dated May 18, 1945. He died in January 1946. On or about April 16, 1946, probate to the said Will of Sarat Chandra Mukherjee, hereinafter referred to as the testator, was granted to the executors by this High Court." By the said Will mentioned hereinbefore the testator, inter alia,, bequeathed part of his dwelling house then known as 3C and 3/2 Hidaram Banerjee Lane, Calcutta, to his three sons in severalty by bequeathing No. 3/2 Hidaram Banerjee Lane, Calcutta, to his eldest son and dividing the premises then known as No. 3C Hidaram Banerjee Lane into two portions in lots and demarcating the same in a plan attached to the said Will. By the said Will, the testator bequeathed, inter alia, the portion of the said dwelling house marked as lot No. 2 in the plan, to his son Nirmal Chandra Mukherjee and the portion marked as lot No. 3 in the said plan to his youngest son, one Dhananjoy Mukherjee. The said Will contained a clause to the following effect: The portion of the existing staircase in lot No. 3 at its northeastern corner which runs from the balcony upto the top of the house in lot No. 2 shall be used as a common staircase between lot No. 2 and lot No. 3. It is this clause that is the cause of this unfortunate litigation. On October 17, 1958, one Arun Kumar Boral, being the present Plaintiff in the Originating Summons, purchased from the said Dhananjoy Mukherjee the said lot No. 3 bequeathed to the said Dhananjoy Mukherjee under the said Will of the testator.' The said lot No. 3 is now numbered as 11/1/1A Chaitan Sen Lane, Calcutta.
(3.) It appears that the premises in dispute was the dwelling house of the testator. It consisted at the time of the said Will of three distinct blocks. The floors of the main building in lot No. 3 were at higher level than those of lot No. 2. There was also in the north -eastern corner of lot No. 3 a staircase which - could be used to go to the 1st, 2nd and 3rd floors of lot No. 2 and also to go to the 1st, 2nd and 3rd floors of lot No. 3. There was and still is in lot No. 2 a separate staircase from the ground floor to the 1st floor thereof, there are two other flights of the same staircase being flights Nos. 8 and 9. The dispute centers round three flights being flights Nos. 7, 8 and 9. The Plaintiff Arun Kumar Boral contends that upon a proper construction of the Will the allottee of Jot No. 2, being the Defendant Nirmal Chandra Mukherjee, has right of user in the said staircase which according to him is that consisting of flights Nos. 1, 2, 3, 4, 5, 6 and 7 and of that said staircase only the portions consisting of flights Nos. 3, 4, 5 and 6 thereof are and were intended to be used as common. It is the further contention of the Plaintiff that the flights Nos. 7, 8 and 9 of the said stairs do not run from the balcony upto the top of the house of lot No. 2.;