A co-owner of a common passage has a general right of drainage for all purposes of the premises, including the purposes of a new building erected on the premises, and has the right to lay new underground drains if and when that becomes necessary for making the plaintiff's right of drainage effective.

R. S. BACHAWAT, J.

( 1 ) THE plaintiff is the owner of the house and premises at No. 146/2, Old China Bazar Street, Calcutta, formerly being portion of premises Nos. 142, 143, 144, 145 and 146, Old China Bazar Street. The defendants 1 to 5 claim to be the owners of the adjoining premises 141 to 145 Old China Bazar Street.

( 2 ) THE root of the plaintiff's title is the return of the Commissioner of Partition dated 8-1-1885, in Suit Nos. 349, 360 and 363 of 1878 (Ex. A-2 ). By and under the return the house and premises Nos. 142, 143, 144, 145 and 146 Old China Bazar Street were allotted to the plaintiffs predecessor-in-title one Prannath Dutt. The return provided that the common passage in dispute being premises No. 146 Old China Bazar Street might be used by the said Prannath Dutt and one Kedareswar Dutt without any objection by the other of them and that both the parties would have the right to drain their respective portion that is to say the premises respectively allotted to them by underground drain through the common passage. Bose, J. has found that by the return the common passage was allotted to Prannath and Kedarnath jointly. The plaintiff claims title through Prannath Dutt. The defendants 1, 2, 3, 4 and 5 collectively called the Dutt defendants claim title to the common passage through Kedareswar Dutt. The plaintiif claims that the plaintiff and defendants 1,2,3,4 and 5 have become the co-owners of the common passage. The plaintiff also claims that the parties have the right to drain their respective portion by underground drain through the common passage. The defendants 6, 7, 8 and 9 are tenants of portions of the open land on the common passage under the plaintiff and the Dutt defendants. The defendant No. 10 claims to be the purchaser of the shop of the defendants Nos. 6, 7, 8 and 9. The plaintiff has now constructed a new building on the premises No. 146/2 Old China Bazar Street. The Cprporation of Calcutta duly sanctioned the plan for the new building. In connection with the new building the plaintiff proposes to lay underground drain through the common passage. The plaintiff claims that it is obligatory on the defendants to render all facilities to the plaintiff for the laying of the passage and that in spite of demands the defendants 6 to 10 have unlawfully refused to remove the wooden platform constructed by the defendants on the portion let to them. The plaintiff claims a declaration of easement right to drain the plaintiff's premises underground through the common passage and consequential injunction and reliefs. Certain other reliefs in respect of the construction of the boundary wall on the eastern side of the plaintiff's premises were also claimed. There is no controversy in this appeal with regard to the right to construct the boundary wall. The plaintiff has been given full relief by the learned trial Judge, with regard to the boundary wall.

( 3 ) ON a review of the materials on the record including the return Ex. A-2 the learned trial Judge came to the conclusion that the plaintiff is co-owner of and has Joint interest in the common passage in dispute along with the Dutt defendants. This finding has not been challenged in appeal.

( 4 ) THE materials on the record show that the common passage is the only space through which drainage of the plaintiff's preimses No. 148/2. Old China Bazar Street can be laid in order to connect it with the main municipal drain in Old China Bazar Street and for this purpose french to the depth of 7ft. and of the width of about 3 ft. 6 inches has to be dug in the portion of the common passage along which the wooden platforms of the tenants are located. The french has to be excavated in the centre of this portion of the common passage and without removing the wooden platforms it is not practicable to excavate the said trench. This is the evidence of John Austin Parks who is the Chief Valuer of the Calcutta improvement Trust for 15 years and is now a partner of Messrs. Tal

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