A suit for mandatory injunction to enforce a compromise decree passed in a partition suit is barred by limitation if it is filed more than 35 years after the passing of the decree.

( 1 ) THIS appeal has been directed against the judgment and decree passed in connection with Title Suit No. 2044 of 1997 by the learned judge, 10th Bench of City Civil Court, Calcutta.

( 2 ) THE present appellant as plaintiff filed Title Suit No. 2044 of 1997 against the respondent as defendant of the said suit for a decree of mandatory injunction for a direction upon the defendant for dismantling of a staircase from the common passage so as to make the same free from obstruction as per terms of settlement of the decree passed by the High court in Partition Suit No. 646 of 1960 and for other consequential reliefs.

( 3 ) THE plaintiff-appellant contended in the plaint that her predecessor-in-interest pursuant to a compromise decree passed in partition Suit No. 646 of 1960 by the High Court acquired absolute ownership over the suit property including right over a common passage free from any obstruction. The plaintiff-appellant stated in the plaint that subsequently her predecessor-in-interest Smt. Sephali Patra sold away the suit property along with the right over the common passage to the present plaintiff on 14. 7. 1978 with a tenant. The plaintiff-appellant after evicting the tenant from the suit property through a suit got physical possession over the suit property in the year 1993.

( 4 ) THE plaintiff-appellant applied for mutation of her name before the Calcutta Municipal Corporation and the Assistant Assessor of Calcutta municipal Corporation by his letter dated 7th June, 1982 informed the plaintiff-appellant that without dismantling of the staircase belonging to the defendant and standing on the common passage, no action could be taken for mutation of plaintiff's name. The plaintiff-appellant thereafter requested the defendant for removal/dismantling of the staircase from the common passage as per terms of settlement of the compromise decree passed in the earlier partition suit, but, the defendant-respondent did not pay any heed to such request of plaintiff. The plaintiff subsequently filed section 144 of the Cr. P. C. against the defendant in the year 1997, but, without any effect and only thereafter she filed the suit in question for a decree of mandatory injunction.

( 5 ) THE defendant-respondent contested the suit before the trial Court by filing written statement denying thereby all the material averments of the plaint contending inter alia that the suit was bad for non-joinder of necessary parties and the suit was also hopelessly barred by limitation. The defendant-respondent further stated that as per the plaint case itself the right over the passage accrued on the basis of the compromise decree passed in the year1962 and since the predecessor-in-interest of the plaintiff-appellant did not take any step for execution of that compromise decree, it is not open for the plaintiff-appellant to file a separate suit for enforcement of that compromise decree after a gap of long 35 years. The defendant-respondent further contended that since the predecessor-in-interest of plaintiff-appellant waved her right regarding dismantling of the staircase standing over the passage for a considerable period of time, the plaintiff-appellant had no cause of action to bring the suit for mandatory injunction.

( 6 ) THE learned Trial Court on perusal of pleadings of the parties framed several issues to decide the suit including issue framed on the question of maintainability of the suit and the learned Trial Court while disposing issue No. 1 which was regarding maintainability of the suit and after hearing the learned Advocate of both plaintiff-appellant and respondent-defendant observed that the suit as framed by the plaintiff-appellant was bad for non-joinder of necessary parties and at the same time, the learned Trial Court also observed that the suit was hopelessly barred by limitation and on such findings, the learned Trial Court dismissed the suit of the plaintiff-appellant holding that the suit itself wa