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2011 Supreme(Cal) 747
High Court Of Calcutta
Tapan Kumar Dutt, Syamal Kanti Chakrabarti, JJ.
Subhra Sinha Roy - Appellant
Versus
Iman Kalyan Dey - Respondent
R. V. W. 73 of 2008 with C. A. N. 8817 of 2008 with F. A. 10 of 2005
Decided On : May 20,2011
Biswajit Basu, S.Mukherjee, Riya Banerjee, S.S.Roy, D.Kundu
A subsequent purchaser cannot claim a better right than the vendor possessed.
Headnote:
EASEMENT - LIMITATION - WAIVER - REVIEW - ENFORCEMENT OF EASEMENT RIGHT OF WAY - OBSTRUCTION BY STAIRCASE - SUBSEQUENT PURCHASER'S RIGHT - NON-JOINDER OF NECESSARY PARTIES - EASEMENT OF NECESSITY - APPLICABILITY.
Fact of the Case:
Plaintiff filed a suit for mandatory injunction directing the defendant to remove 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 Honourable Court in a Partition Suit. 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. On the other hand Kartick Chandra Pal and Harinarayan Dey jointly got the front portion of the said premises under certain conditions. The learned Trial Court dismissed the suit mainly on the grounds of non-joinder of necessary parties and maintainability. The appeal was dismissed on 27.07.2007 by this Honourable Court affirming the findings of the learned Trial Court which is now under review.
Finding of the Court:
The Court held that the plaintiff/ petitioner has tried to assert some easementary right as the subsequent purchaser though such right was relinquished by the original owner by her own conduct and as such the same is barred by limitation and doctrine of estoppel by conduct and no enforceable decree can be passed against such claim.
Issues: 1. Whether the plaintiff/ petitioner has tried to assert some easementary right as the subsequent purchaser? 2. Whether such right was relinquished by the original owner by her own conduct? 3. Whether the same is barred by limitation and doctrine of estoppel by conduct? 4. Whether an enforceable decree can be passed against such claim?
Ratio Decidendi: 1. Yes, the plaintiff/ petitioner has tried to assert some easementary right as the subsequent purchaser. 2. Yes, such right was relinquished by the original owner by her own conduct. 3. Yes, the same is barred by limitation and doctrine of estoppel by conduct. 4. No, an enforceable decree cannot be passed against such claim.
Final Decision: The Court dismissed the review application.
Syamal Kanti Chakrabarti, J.
1. THE present application is filed for the review of the judgement dated 27.07.2007 passed in F. A. No. 10 of 2005 dismissing the appeal preferred by the plaintiff/ appellant against the judgement 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 for 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 Honourable Court in a Partition Suit No. 646 of 1960.
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 Honourable 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 judgement 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 parties 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
