The interpretation of the alleged deed of gift, the absence of mention about the overhead water tanks, and the plaintiff's right to water supply influenced the court's decision in setting aside the lower court's order and continuing the interim injunction.

JUDGMENT :

MADHUMATI MITRA, J.

1. This appeal has been preferred against an order, dated 29th July, 2017 passed by the learned Civil Judge, Senior Division, 7th Court, Alipore in Title Suit No. 391 of 2015, rejecting the prayer for temporary injunction as prayed for by the plaintiff/appellant.

2. Before dealing with the rival submissions of the parties, it would be appropriate to set out the facts briefly.

3. As per plaint case the present appellant and respondent nos. 1 and 2 are the successors in interest of Late Mantu Chatterjee who purchased 4 cottahs, 12 Chittacks and 10 sq. ft. of land in plot no. 7540-7541 in Khatian No. 8311 and 2047 in Mouza-Behala Gram from one Shankar Haldar. Said Mantu Chatterjee constructed a two storied building covering 1 cottah, 15 chittacks and 28 sq. ft of land keeping the remaining portion vacant. Subsequently said Mantu Chatterjee transferred the remaining vacant portion of the land. After the demise of Mantu Chatterjee and his wife, the plaintiff/appellant and the defendants/respondents inherited the suit property in equal shares. Respondent No. 2 is the married sister of the plaintiff and respondent no. 1 and she resides in her matrimonial home. Plaintiff and defendant no. 1 reside in the suit building. It has been alleged by the plaintiff that the defendant no. 1 is enjoying more than 1/3rd share in respect of the suit property. Plaintiff claims that the suit property is a joint property of the parties. Plaintiff has made several requests for partition of the suit property by amicable partition but the defendant no. 1 did not pay any heed. As such the plaintiff/appellant was compelled to bring T.S. No. 391 of 2015 praying for a decree of partition and declaration of his share.

4. In his application for temporary injunction the plaintiff/appellant has stated that he is occupying the ground floor of the suit premises and defendant no. 1 is occupying the 1st floor of the suit premises. There is only one underground reservoir with two overhead tanks, one for plaintiff and other for defendant no. 1 and both the overhead tanks are kept on the roof of the premises. It has been alleged by the plaintiff that he is being obstructed from using the roof where his overhead tank is kept. He is also obstructed from using the main entrance of the premises and to operate electric pump due to the obstructions created by defendant no. 1.

5. Defendant no. 1 contested the prayer for temporary injunction and denied all the claims allegations of the plaintiff by submitting that by virtue of a deed of gift executed by their father in the year 2006 he got entire 1st floor along with staircase, landing and main door on the north-west corner of the suit property. Thereafter, he mutated his name in the respect of the gifted portion of the suit premises. He has admitted that the overhead tank of the plaintiff is kept on the roof of the building. He has claimed that overhead tank of the plaintiff electric pump, etc. are within his portion which he got on the basis of deed of gift. He has contended that he became the absolute owner of the said portion. Plaintiff has no right over the same. He has also claimed that on several occasions he requested the plaintiff to shift the overhead tank and pump to the common area so that all the parties can access in right manner, but the plaintiff did not response. Defendant no. 1 has also alleged that the plaintiff is trying to grab his exclusive portion which he got by virtue of deed of gift executed by his father in his favour. It is his specific claim that the entire main door on the north-west corner measuring 78 sq. ft. is his absolute property and for security purpose he keeps the same under lock and key. Plaintiff has separate entrance to the suit property. Both the plaintiff and defendant no. 1 have access to the electric pump and reservoir. Plaintiff is getting water through overhead tank. Defendant no. 1 has prayed for an order for shifting the overhead tanks and electric pump