Ranadhi Kumar Das vs Madan Mohan Sadhukhan

Bibek Chaudhuri, J

The appellant as plaintiff instituted a suit for injunction against the defendant/plaintiff in the 7th Court of the learned Civil Judge (Junior Division) at Howrah which was registered as Title Suit No.204 of 1997 pleading, inter alia, that one Baridhi Bilas Das was the original owner in respect of Howrah Municipal Corporation holding No.44A, Hem Chakraborty Lane comprising of land measuring 2 cottahs, 6 chitaks and 15 sq.ft together with structure thereon. The said Baridhi Bilas transferred 1 cottah 12 chitaks 35 sq.ft of land together tile shed out of the entire property comprised in holding No.44A, Hem Chakraborty Lane to one Satyendranath Adak by a registered deed of sale dated 12 December, 1980. The vendor, however retained 10 chitaks and 8 sq.ft land in holding No.44A Hem Chakraborty Land with a strip of land measuring about 4 ft. 3 inches width in the South of the sold out portion to Satyendranath Adak and his pre-existing passage to Hem Chakraborty Lane being only egress and ingress to his portion. The said piece and parcel of land measuring 10 chitaks and 8 sq.ft of land together with small structures standing thereon within 44A Hem Chakraborty Lane is fully described in schedule A of the plaint. Schedule B of the plaint is the property purchased by Satyendranath Adak from the original owner, namely, Baridhi Bilas. Satyendranath Adak sold out B schedule property to the defendant/respondent. A schedule suit property was all along under the possession of the original owner of premises No.44A Hem Chakraborty Lane. By a registered deed of purchase dated 6th September, 1994, the said Baridhi Bilas sold out the suit property in favour of the plaintiff. B schedule property was renumbered as 44A/1/1 Hem Chakraborty Lane after it was sold out to Satyendranath Adak. The cause of action to file the said suit arose when the defendant was raising pucca two storied building without leaving any side or rear space towards south and east by the plaintiff's A schedule property. It is alleged by the plaintiff that defendant illegally obtained sanction plan with false and erroneous measurement of B schedule property, suppressing the existence of the only passage for ingress and egress from A schedule property which is morefully described as C schedule property of the plaint. The plaintiffs started to raise pucca boundary wall in the A schedule property in the northern side abating B schedule property and in the southern side by the side of the land of one Chandi Das, since deceased in order to protect his property and fixed a door towards Hem Chakraborty Lane sometimes in the last week of December, 1997. But the defendant all of in a sudden on 18th December, 1997 opened a door on the southern side below the standing step of staircase and another door on the southern wall of pantile roof room towards the strip of land described in schedule A and schedule C of the plaint with ulterior motive to use the said strip of land of the plaintiff illegally, though he had no right, title and interest over the said strip of land. It is further pleaded that the father of the plaintiff, namely Ramaprosad Das instituted Title Suit No.195 of 1983 in the 3rd Court of the learned Munsif, Howrah for declaration of injunction claiming right over C schedule property to the plaint impleading one Guruprosad Das and Baridhi Bilas Das and others as defendants. The said suit was decreed in part. The plaintiff preferred an appeal against the said judgment and decree. During the pendency of the appeal, dispute between the plaintiff and legal representatives of the said Baridhi Bilas was amicably settled. Plaintiff purchased A schedule property including C schedule property from the legal heirs of Baridhi Bilas. The portion alleged to be sold to Satyendranath Adak and subsequently to the defendant does not include C schedule strip of land. Since the defendant taking advantage of erroneous and collusive and wrong measurement of his purchased land in his deed of purchase tried to disturb peaceful enjoyment of C schedule property by the plaintiff, he filed the suit for permanent injunction restraining the defendant from using C schedule property in any manner whatsoever and from obstructing the construction of boundary wall and the entrance door in C schedule property.

The defendant contested the suit by filing written statement denying all material allegations made by the plaintiff against him. Specific case of the defendant is that holding No.44A Hem Chakraborty Lane was measuring about 2 cottahs 6 chitaks and 15 sq.ft of land with structure. The original owner of the said premises was one Guruprasad Das who got the said property by virtue of a final decree passed in Partition Suit No.7 of 1957. The said Guruprasad Das transferred the said holding in its entirety to his son Baridhi Bilas by executing a deed of sale dated 13th March, 1970. The defendant was a monthly tenant in respect of entire holding No.44A Hem Chakraborty Lane at a monthly rental of Rs.50/-payable according to the English calendar month. After purchase by Baridhi Bilas, the suit property was renumbered as holding No.44/A/1 Hem Chakraborty Lane. By a registered deed of sale dated 12th December, 1980, Baridhi Bilas transferred holding No.44/A/1 Hem Chakraborty Lane to one Satyendranath Adak. The defendant/respondent purchased the said holding from Satyendranath Adak by a registered deed of sale dated 7th May, 1982. It is further contended by the defendant/respondent that on the southern side of his land, he left out a strip of land approximately 1 ft. 9 inch in width as side space for the purpose of repairing of his boundary wall which was claimed by the plaintiff illegally. The plaintiff is claiming C schedule property by virtue of deed of purchase dated 6th September, 1994 from the heirs of Baridhi Bilas, though at the relevant point of time the legal heirs of Baridhi Bilas had no title over C schedule property.

Subsequent to the filing of the said suit, the defendant of Title Suit No.204 of 1997 filed Title Suit No.104 of 1998 against the plaintiff of the said suit praying for declaration of his title over the piece and parcel of land with building measuring about 1 cottah, 12 chitaks and 35 sq.ft in holding No.44/A/1 Hem Chakraborty Lane on the selfsame averment as taken by way of defence in Title Suit No.204 of 1997. The plaintiff/appellant as defendant of Title Suit No.104 of 1998 filed written statement containing, inter alia, the same averment as made out by him in the plaint of Title Suit No.204 of 1997, with counter claim in respect of "A" schedule property.

Both the suits were analogously tried by the learned Civil Judge (Junior Division), 7th Court at Howerah, and finally, Title Suit No.204 of 1997 was dismissed on contest and Title Suit No.104 of 1998 was decreed.

Against the judgment and decree passed in both the suits, the plaintiff/appellant preferred appeals being Title Appeal Nos.14 of 2017 and 17 of 2000. Both the appeals analogously heard and disposed of by the learned Additional District Judge, 1st Court at Howrah. By impugned judgment dated 26th May, 2013 the learned Judge in 1st Appellate Court dismissed both the appeals on contest without cost, thereby affirming the judgment and decree passed by the learned Civil Judge (Junior Division), 7th Court at Howrah.

The record of the instant appeal shows that the appeal was admitted on the following substantial question of law:-

"Whether the courts below committed substantial error of law by restraining the plaintiff appellant from raising boundary wall in respect of C schedule property after recording a finding that the plaintiff appellant was the owner of C schedule property and that to when there is no finding of any right, liability or obligation which disentitled the plaintiff appellant to raise a boundary wall within the property in question."

Baridhi Bilas Das, from whom the parties are claiming title over the suit property became the owner of holding No.44A Hem Chakraborty Lane measuring about 2 cottah, 6 chitaks and 15 sq.ft of land with structures standing thereon by purchase from Guruprosad Das by a registered deed of conveyance dated 24th March, 1970. The certified copy of the said deed of sale was marked exhibit-4 during trial of the suit. Exhibit-5 is a deed of sale by virtue of which the plaintiff/appellant purchased 10 chitaks, 8 sq.ft of land along with an R.T shed thereon comprising within holding No.44A Hem Chakraborty Lane. The said piece and parcel of land with structure is butted and bounded on the east by holding No.44A/1 Hem Chakraborty Lane, on the west by holding No.44A/1/1 Hem Chakraborty Lane, on the north by holding No.44A/1 Hem Chakraborty Lane and land holding of one S. Nandi and on the south by open land of one Chandicharan Das.

The relevant deeds and documents which were marked exhibits on behalf of the defendant/respondent are Exhibit-A by virtue of which Baridhi Bilas Das transferred 1 cottah, 12 decimal and 35 sq.ft of homestead land with structure out of the said 2 cottah, 6 chitaks and 15 sq.ft of homestead land to one Satyendranath Adak. The said portion which was sold out to the said Satyendranath Adak was recorded as holding No.44A/1 Hem Chakraborty Lane. The land which was sold out to Satyendranath Adak by executing Exhibit-A is depicted in a plan annexed with the deed with red ink. In the schedule, it is clearly stated that the said property was sold out to Satyendranath Adak along with easement right over a strip of land situated on the southern side of the said property. It is important to note that the said deed of sale was executed on 12th December, 1980. The present defendant/respondent purchased the said land from Satyendranath Adak by virtue of a registered deed of sale dated 7th May, 1982.

On careful perusal of the plan attached with the sale deed (Exhibit-5), it is ascertained that land and building of the plaintiff/appellant situated in holding No.44A/1 Hem Chakraborty Lane stands on the extreme east of the said passage which was purchased by the plaintiff/appellant from the heirs of Baridhi Bilas Das on 6th September, 1994. The said plan attached to the deed (Exhibit-5) shows that the disputed passage runs from Hem Chakraborty Lane towards west to east. It is also ascertained from the said plan that holding No.44/A/1/1 which is owned by the present defendant/respondent is situated on the adjacent north and west of the said passage.

The learned trial judge while adjudicating issue No.3 came to the finding that the disputed passage described in schedule C of the plaint is piece and parcel of A schedule property.

However, the learned trial court refused to grant decree for permanent injunction in favour of the plaintiff/appellant on the ground that in a previously instituted suit between the plaintiff and the said Baridhi Bilas Das being Title Suit No.195 of 1983, the plaintiff/appellant himself claimed C schedule passage as a common passage. The learned trial judge also held that the vendor of the defendant, namely, Satyendranath Adak purchased 1 cottah, 12 chitaks and 35 sq.ft of land with structure in holding No.44A/1/1 Hem Chakraborty Lane together with easement right over the strip of land situated on the southern side of the property which was sold to the said Satyendranath Adak by Baridhi Bilas Das. The defendant/respondent purchased holding No.44A/1/1 Hem Chakraborty Lane from Satyendranath Adak. According to the learned trial judge as well as the learned Judge in Lower Appellate Court, the easement right over the said C schedule property automatically transferred in favour of the respondent as the said right of easement over C schedule property is in the nature of covenant running with the land.

The learned Judge in 1st Appellate Court came to such finding while affirming the judgment and decree passed by the learned trial judge relying upon the provisions contained in Section 40 and Section 55(2) of the Transfer of Property Act.

Mr. Bhaskar Ghose, learned Senior Advocate for the plaintiff/appellant submits that the learned trial court dismissed the suit on the ground that the plaintiff has not prayed for declaration of title on C schedule property and without prayer for such declaration, a decree for permanent injunction cannot be granted. According to Mr. Ghose, both the courts below failed to consider the provision contained in Order 7 Rule 7 of the Code of Civil Procedure. Order 7 Rule 7 of the CPC reads as under:-

"R. 7. Relief to be specifically stated.- Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement."

It is submitted by Mr. Ghose that a court in exercise of plenary jurisdiction can exercise discretionary power to mould the relief or give any relief as the parties may be found to be entitled to in equity and justice. According to the learned Senior Counsel for the appellant even if there was no specific prayer for declaration of title over C schedule property made by the plaintiff/appellant in his suit, the courts below could have made such declaration on the basis of the deed of title by virtue of which the appellant became the absolute owner of the C schedule property. In support of his contention, Mr. Ghose refers to a decision of this Court in the case of Amulya Ratan Mukherjee and Ors. vs. Kali Pada Tah and Ors. reported in AIR 1975 Cal 200. The factual background of the aforesaid decision is that the plaintiff instituted a suit for declaration of title and recovery of possession claiming, inter alia, that the defendants were tenants and there tenancy was determined by a notice to quit. Both the courts below concurrently held that the plaintiff had right, title and interest in the property, but had been dispossessed by the defendants for a period not more than 12 years and the defendants had no right, title and interest in the property as alleged by them. Accordingly the trial court passed a decree for recovery of possession against the defendant holding, inter alia, that the defendants were rank trespassers in respect of the suit property. This court affirmed the judgment and decree passed by the courts below on the ground that under Order 7 Rule 7 of the CPC the court is justified to pass suitable decree. According to Mr. Ghose, the above principle is squarely applicable in the instant case because both the courts below found that the appellant is the absolute owner of C schedule property and it is a part and parcel of A schedule property. When the title of the plaintiff was proved, the courts below could not refuse the prayer for permanent injunction against the respondent. On the selfsame principle Mr. Ghose also relies upon a subsequent decision of a Coordinate Bench of this Court in the case of Arjun Chandra Bera vs. Bijay Krishna Bera And Ors reported in 2002 (4) CHN 692.

Mr. Partha Pratim Roy, learned Advocate for the respondent, on the other hand, submits that the provision of Order 7 Rule 7 of the CPC is not applicable under the facts and circumstances of the present case. Declaration of title cannot be an ancillary relief to the main relief prayed in the suit. It is submitted by Mr. Roy that pleadings and particulars are required to enable the court to decide the rights of the parties in the trial. Thus, the pleadings are necessary to help the court in narrowing the controversy involved and to inform the parties concern to the question in issue, so that the parties may adduce appropriate evidence on the said issue. It is a settled proposition that as a rule of relief not founded on pleadings should not be granted. Therefore a decision of a case cannot be passed on grounds outside the pleadings of the parties. The pleadings and issues are to ascertain the real dispute between the parties to specify the area of conflict and to see where the contesting parties differ.

It is contended by Mr. Roy that the appellant prayed for a decree for permanent injunction restraining the respondent from causing any obstruction from raising construction over C schedule property on the basis of a deed of conveyance by virtue of which the appellant purchased the said strip of land from the heirs of Baridhi Bilas Das sometimes in 1994. Title Suit No.204 of 1997 was instituted over a dispute as to whether the appellant has right to raise construction on C schedule property. In support of his contention, he refers to issue No.3 framed by the learned trial court during trial of the suit. Issue No.3 is reproduced below:-

"Is there any existence of C schedule property? If so is it a part and parcel of A schedule or not?"

According to Mr. Roy, the learned trial court while deciding issue No.3 held that "A" schedule property of which "C" schedule property is a part, purchased by the plaintiff/appellant by a registered deed of sale dated 6th September, 1994. On the other hand, the respondent purchased holding No.44A/1/1 Hem Chakraborty Lane from Satyendranath Adak by a registered deed of sale dated 7th May, 1982. The vendor of the present defendant purchased B schedule property from the said Baridhi Bilash along with right of easement over the strip of land situated on adjacent southern side of B schedule property. Therefore, the vendor of the respondent used to enjoy C schedule property as a passage. On purchase of B schedule property the respondent automatically acquired the right to use the said passage as easementary right.

It is vehemently urged by Mr. Roy, learned Advocate for the respondent that in a previously instituted suit (T.S 195 of 1983), the appellant claimed right of user of C schedule property against Baridhi Bilas Das stating, inter alia, that C schedule property is a common passage. Such plea made by the appellant in a previously instituted suit is in the nature of admission that binds the appellant. At present the appellant cannot claim that C schedule property is under absolute ownership of the plaintiff by virtue of purchase in the year 1994. From the pleadings of the appellant in Title Suit No.195 of 1983, it is established that the plaintiff claimed the said strip of land in C schedule property as common passage against the original owner, namely Baridhi Bilas Das. Mr. Roy submits that where the plaintiff's title is under a cloud, and he does not have exclusive possession, the remedy for the plaintiff is suit for declaration and recovery of possession with or without consequential injunction. In support of his contention he refers to a decision of the Hon'ble Supreme Court in Anathula Sudhakar vs P. Buchi Reddy (Dead) By Lrs & Ors reported in (2008) 4 SCC 594.

For effective discussion and proper adjudication of the instant appeal at the risk of repetition, I like to record that the defendant/respondent purchased B schedule property being holding No.44A/1/1 Hem Chakraborty Lane from Satayendranath Adak. A schedule property was purchased by the plaintiff/appellant by a registered deed of sale from the heirs of Baridhi Bilash Das on 6th September, 1994. C schedule property is a passage running from west to east from Hem Chakraborty Lane on one side and holding No.44A/1 which is undoubtedly owned by the appellant being piece and parcel of holding No.44A Hem Chakraborty Lane.

It is ascertained from the plaint that the dispute between the parties arose when the defendant raised construction over B schedule property without leaving any side or rear space towards south and east in spite of protest made by the appellant.

The respondent, on the other hand pleaded that the original owner, namely, Baridhi Bilas transferred B schedule property to one Satyendranath Adak by a registered deed of sale dated 12th December, 1980. It is specifically stated in the schedule of the said deed that Baridhi Bilas transferred B schedule property along with right of easement over a strip of land situated on the southern side of the said property. The defendant became the owner of B schedule property by purchase from Satyendranath Adak. Therefore defendant/respondent automatically acquired right of easement over C schedule strip of land from his vendor.

During trial of the suit, the plaintiff proved a document written by the defendant/respondent on 27th August, 1986 declaring, inter alia, that he would not encroach upon 4 ft. 3 inches wide common passage situated on adjacent south of his holding and would not cause any obstruction to the appellant from peaceful enjoyment of the said common passage. The said document was marked as Exhibit-3 during trial of the suit.

During trial, certified copy of the judgment and decree passed in Title Suit No.195 of 1983 are marked as exhibit-1 and 1(a) respectively. It is found from the certified copy of the said judgment that the plaintiff/appellant claimed the said 4 ft. 3 inches wide strip of land as a common passage having right to use the said passage. Subsequently, plaintiff/appellant purchased the said strip of land from the heirs of Baridhi Bilas by a registered deed of sale dated 6th September, 1994.

It is needless to say that a question as to whether a strip of land in between two holdings is under the absolute ownership of one of the parties to the suit or a common passage, is a question of fact and generally the High Court in Second Appeal is not obliged to deal with such disputed question of fact. High Court cannot reassess evidence or without reassessing evidence find any infirmity in the finding of fact of the courts below. Measure of proof is within the domain of the two courts of fact in the hierarchy. Sufficiency of proof is no ground for the High Court to interfere with a finding of fact. However, if the High Court concludes that the findings of fact recorded by the courts below are perverse being based on evidence or of irrelevant materials, the second appeal can be entertained and it would then be permissible for the High Court to reappreciate the evidence.

I have already stated hereinabove that this Court while admitting the appeal formulated the substantial question of law. The substantial question of law involved in the instant appeal is as to whether the appellant was entitled to get a decree for permanent injunction restraining the defendant/respondent from using C schedule property in any manner whatsoever and from obstructing the construction of boundary wall and entrance door in the C schedule property, when title of the appellant was proved and established in the trial court and affirmed by the 1st Appellate Court.

Needless to say that the plaintiff/appellant cannot claim better title over C schedule property than what was enjoyed by his vendors. The vendors of the appellant in respect of A schedule property of which C schedule property is a part, are the legal heirs and representatives of Baridhi Bilas Das. Baridhi Bilas during his life time, transferred B schedule property to the vendor of the respondent along with right of easement over C schedule property. Subsequent to such transfer the plaintiff filed Title Suit No.195 of 1983 claiming the said passage as a common passage. Therefore, on the date of purchase of A schedule property, the appellant knew that C schedule property is a common passage to be used by both the appellant as well as the owner of B schedule property. In Rajpur Colliery Co. vs. Pursottom Gohil reported in AIR 1959 Patna 463, it was held that a covenant granting a right of way over a particular plot of land for the beneficial enjoyment of another adjacent plot can be enforced by the lessee of the adjacent plot against lessee of the first plot taking lease with notice of covenant. In Pemsel and Wilson vs. Tucker : (1907) 2 Ch 191, it was held that a restricted covenant is one which would entitle a third person to interfere with the free use which is the transferee may choose to make of the property which is the subject matter of the contract. It deals with easement and restrictive covenants as distinguish from covenants running with the land.

Bearing the above stated principles in mind, if the case of the respective parties is assessed, this court will come to an irresistible conclusion that the original vendor of mother premises No.44A Hem Chakraborty Lane transferred 1 cottah 12 chits and 35 sq.ft of land with structure to one Satyendranath Adak, vendor of the respondent with right of easement over the southern side strip of land which is described as C schedule property in the plaint. The appellant purchased A schedule property of which C schedule is a part from the heirs of the original vendor. When the original vendor, namely Baridhi Bilas Das allowed easementary right over C schedule passage to the vendor of the respondent, the respondent is entitled to enjoy such right against the appellant. Moreover, the appellant cannot claim C schedule passage as his exclusive passage by virtue of purchase on 6th September, 1994 because the appellant himself knew from long before his purchase of A schedule property that the said passage is a common passage and the vendor of the respondent used to enjoy right of easement over the said passage. The appellant cannot restrain the respondent from his right of easement over C schedule passage.

At the same time, it is found from the deed of purchase by virtue of which the respondent became the owner of B schedule property that Satyendranath Adak only transferred 1 cottah 12 chitaks and 35 sq.ft of land with structure to the respondent. In the said deed right of user of C schedule passage by the respondent was not specifically stated. On careful consideration of the title deeds of the parties, I find that the respondent does not have any title over the said passage. The appellant is the owner of C schedule passage. Since the respondent is entitled to enjoy right of easement over the said passage, the appellant is not entitled to get any decree of permanent injunction restraining the respondent from obstructing the construction of boundary wall and entrance door in C schedule suit property.

However, the appellant is entitled to get a decree for permanent injunction against the respondent restraining him from creating any obstruction to the appellant from peaceful enjoyment of C schedule property.

Substantial questions of law as formulated by the Division Bench of this Court is answered in the light of the observation made hereinabove.

As a result, the instant appeal is allowed on contest in part.

The judgment and decree passed by the learned trial judge the Title Suit No.204 of 1997 analogously with Title Suit No.104 of 1998 and affirmed by the 1st Court of Appeal in Title Appeal No.14 of 2000 and 17 of 2000 are set aside.

The respondent is restrained by a decree of permanent injunction from causing any obstruction in peaceful enjoyment of C schedule property by the appellant.

However, prayer for decree of permanent injunction restraining the respondent from obstructing the appellant from constructing the boundary wall and entrance door in C schedule suit property is refused.

Parties do bear their respective cost of the appeal.

Decree be drawn up accordingly.

Urgent certified website copies of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities.