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2011 Supreme(Cal) 737
High Court of Judicature at Calcutta
TAPAN KUMAR DUTT & SYAMAL KANTI CHAKRABARTI
Subhra Sinha Roy
Versus
Iman Kalyan Dey
R. V. W. 73 of 2008 with C. A. N. 8817 of 2008 with F. A. 10 of 2005
Decided On : 20-05-2011
For the Petitioner:Mr. Biswajit Basu, S. Mukherjee, Riya Banerjee, Advocates.
For the Respondent:Mr. S. S. Roy, Mr. D. Kundu, Advocates.
The subsequent purchaser's rights to enforce an easementary right over a property are limited to the terms and conditions of the compromise decree and any subsequent waiver or relinquishment of such rights by the original owner.
Headnote:
EASEMENT - RIGHT OF WAY - LIMITATION - WAIVER - ENFORCEABILITY - REVIEW - ERRORS APPARENT ON FACE OF RECORD - SUBSEQUENT PURCHASER'S RIGHTS.
Fact of the Case:
Plaintiff/appellant filed a suit for mandatory injunction directing the defendant/opposite party to remove and/or dismantle the staircase on the common passage at the cost of the defendant as per the terms of settlement in a compromise decree passed by the Hon’ble Court in a Partition Suit No. 646 of 1960. The Trial Court dismissed the suit on the grounds of non-joinder of necessary parties and maintainability. The appeal was dismissed by the Hon’ble Court affirming the findings of the learned Trial Court. The plaintiff/appellant filed a review application.
Finding of the Court:
The subsequent purchaser did not acquire any right to remove the staircase obstructing the pathway and cannot claim removal of the same long after such purchase to enforce his easementary right over the same which shall only be confined to clause 10 of the compromise decree and not proviso to Clause 14 thereof. The Hon’ble Division Bench while considering the appeal was concerned with the question of limitation and non-joinder of necessary party. Therefore, such a question of enforcement of easementary right of way over the property by removal of staircase was not in existence and not taken into account which cannot be treated as an error apparent on the face of record for review.
Issues: 1. Whether the subsequent purchaser has the right to remove the staircase obstructing the pathway and claim removal of the same after a long time of purchase to enforce his easementary right over the same? 2. Whether the question of enforcement of easementary right of way over the property by removal of staircase was an error apparent on the face of record for review?
Ratio Decidendi: 1. The subsequent purchaser did not acquire any right to remove the staircase obstructing the pathway and cannot claim removal of the same long after such purchase to enforce his easementary right over the same which shall only be confined to clause 10 of the compromise decree and not proviso to Clause 14 thereof. 2. The question of enforcement of easementary right of way over the property by removal of staircase was not in existence and not taken into account which cannot be treated as an error apparent on the face of record for review.
Final Decision: The review application is dismissed.
Syamal Kanti Chakrabarti, J.
The present application is filed for the review of the judgment dated 27.07.2007 passed in F. A. No. 10 of 2005 dismissing the appeal preferred by the plaintiff/ appellant against the judgment and decree of dismissal dated 15.06.2004 passed in Title Suit No. 2044 of 1997 by the learned Judge, 10th Court City Civil Court, Calcutta.
2. In the Court below the plaintiff instituted Title Suit No. 2044 of 1997 praying or a decree for mandatory injunction directing the defendant/ opposite party to remove and/or dismantle the staircase on the common passage at the cost of the defendant as per the terms of settlement in a compromise decree passed by this Hon’ble Court in a Partition Suit No. 646 of 1960.
3. One Sephali Patra filed the above suit against one Lilabati Dashi for partition of premises no. 63, Shyambazar Street, formerly known as no. 111/1 Shyambazar Street, in the Original Side of this Hon’ble Court. The said Lilabati Dashi was substituted by her descendants Kartick Chandra Pal and Harinarayan Dey. The said suit ended in a compromise decree on 01.10.1962 in terms of which Sephali Patra got the back portion of the said premises together with the right of way in the passage of the front portion which leads from Shyambazar Street to the said back portion which was identified under Lot ‘B’ of the plan annexed to the said decree. On the other hand Kartick Chandra Pal and Harinarayan Dey jointly got the front portion of the said premises identified under Lot ‘A’ of the said plan under certain conditions. Some of the clauses of such compromise decree are quoted below for the purpose of better appreciation of the judgment under review.
“Clause-5: The back portion of premises No. 63, Shyambazar Street, Calcutta described in Lot ‘B’ of the schedule below and demarcated in the plan annexed hereto and marked ‘B’ and therein bounded by yellow borders is hereby allotted to the plaintiff. Clause-6: It is declared that the front portion of the said premises described in Lot ‘A’ of the said schedule and demarcated in the said plan and marked ‘A’ and therein bounded by red borders is hereby allotted to the substituted defendants the defendant Kartick Chandra Paul having one equal fourth part of share herein and the defendant Hari Narayan Dey having three equal fourth parts or shares therein.
Clause-7: To equalies the said partition the substituted defendant Harinarayan Dey shall on or before the putting in of these terms pay to the plaintiff Rs. 5,500/- (Rupees five thousand five hundred only) by way of owelty money and the said amount having been paid by the defendant Hari Narayan Dey one equal half part or shares in the lot ‘A’ shall belong to the said Hari Narayan Dey alone. Clause-8: Within 6 months from the date of these terms of settlement being put in, the plaintiff and the defendant Kartick Chandra Pal shall sign execute and register in favour of the said Hari Narayan Dey a proper conveyance in respect of the said half share in Lot ‘A’.
Clause-9: The said defendant Harinarayan Dey shall also within one month from the putting in of these terms pay to the plaintiff Rs. 80/- (Rupees eighty only) in payment of the defendants share of the Municipal Taxes in respect of the suit premises.
Clause-10: The parties will have right to way in the passage leading from Shyambazar Street to the said back portion described in lot B, the said passage being marked ‘X’ to ‘Y’ in the said plan and therein coloured burnt ciena with liberty to lay drain, swear, filtered and unfiltered water pipes, and electrical and telephone connections under or over the same.
Clause-11: The aforesaid passage will be maintained by all the parties herein.
Clause-12: Immediate steps shall be taken by the partie herein to eject the existing tenant occupying a portion of the said front portion of the suit premises costs whereof however will be borne by the substituted defendants only.
Clause-13: The plaintiff will have no claim
