Tarun Kumar Gupta, J.

This second appeal is directed against the judgment dated 17 th February, 1998 passed by the learned Civil Judge (Senior Division), Sealdah in Title Appeal No.59 of 1997 reversing the judgment dated 30 th May, 1997 and decree thereof passed by the learned Munsif 3rd Court at Sealdah being Title Suit No.65 of 1987.

The plaintiff filed a suit alleging that he purchased the suit property from one Uday Kumar Gupta through a kobala dated 22 nd February, 1983 including the 4 feet passage running north to south. The contiguous west plot being portion of the premises No.10/1, Gobinda Khatick Road is the property of defendant No.1. The 4 feet common passage running from north to south, was plaintiffs’ absolute property through said purchase and defendant No.1 had no right over the same. As the defendants are trying to encroach on said passage claiming to be common passage the plaintiff was compelled to file the suit for declaration and injunction.

The defendants / respondents contested said suit by filing a written statement. It was contended inter alia that the defendant No.1 was the owner of plot No.10/1/C (old plot No.10/1) Gobinda Khatick Road to the contiguous east side of the plaintiffs land. The vendor of both the parties was same. The defendant No.1 purchased said plot of land along with the right to use the disputed 4 feet wide common passage as a passage for going to the public pathway and that except the suit passage the defendants had no other pathway to come to the public pathway. The plaintiff was not the absolute owner of the common passage and the suit was liable to be dismissed.

After contested hearing learned trial court decreed the suit by observing that the disputed suit passage was absolute property of the plaintiff and that the defendant being a subsequent purchaser cannot claim any right over the said passage which was sold to the plaintiff by their common vendor at an earlier point of time.

Being aggrieved, the defendants preferred an appeal which was allowed after contested hearing by observing that the disputed passage was a common passage and that the plaintiff was not entitled to get any decree as prayed for. The title suit was accordingly dismissed.

Being aggrieved, plaintiff has filed this second appeal. At the time of admission of this appeal, the following substantial question of law was formulated by the Division Bench vide order dated 15th July, 1998:-

“Whether the court of appeal below erred in law in dismissing the entire suit of the plaintiff / appellant by reversing the judgment and decree of the learned trial court although it was held that passage in suit was a common passage.”

Mr. Jiban Ratan Chatterjee, learned senior counsel appearing for the plaintiff / appellant, submits that plaintiff purchased the suit property including the passage from his vendor Uday Kumar Gupta through a purchased deed dated 22.02.1983. According to him, the plaintiff purchased 1 cottah 8 chittaks and 24 square feet of land including said 4 feet wide common passage in holding No.202 / 257 at premises No.10/1 (old) which is presently renumbered as 10/1-C, Gobinda Khatick Road.

Mr. Chatterjee further submits that in the purchase deed of the plaintiff (exhibit-1) it was specifically mentioned that the common passage was included in the plaintiff’s purchased property. He next submits that from the report of the learned Commissioner (exhibit-2) it is apparent that the suit passage was included in the purchased property of the plaintiff. According to him defendant purchased other portion of the premises No.10/1 (old) which was also renumbered as 10/1-C measuring about 1 cottah from the common vendor through a kobala dated 24.06.1983. According to Mr. Chatterjee, as the vendor already sold out the disputed passage to the plaintiff through the plaintiff’s purchased deed dated 22.02.1983, said vendor had no authority to give any right of passage to the defendant No.1 being subsequent purchaser, for using