JUDGMENT :

Soumen Sen, J.

1. By consent of the parties the appeal, cross-appeal and the applications are taken up together and disposed of by this common order.

2. The appeal is arising out of an order passed by the learned Judge-in-Charge, Bench 6, City Civil Court in connection with an application for injunction under Order XXIX Rule 1 and 2 read with Section 151 C.P.C filed by the plaintiff/appellant.

3. The dispute is with regard to the right to use the roof by Ankur Gupta and Arun Kumar Gupta.

4. One Ganesh Lal Purushottam Das Hindu Undivided Family (hereinafter referred to as ‘HUF’) represented by its Karta Tulsyan was the sole and exclusive owner of a reasonably big plot of land at 5A, Robinson Street Calcutta-700 017. The HUF constructed a multicipated building comprising at a basement, ground floor and 7 floors consisting of 13 number of self contained flats on the suit property. Out of the said 13 flats Ganesh sold, transferred and conveyed the right title interest in connection with 5 flats being flat no. 1A on the ground floor, flats no.2A and 2B on the second floor and flat nos. 3A and 3B on the 3rd floor together with all proportionate shares and common areas. After the death of Ganesh his elder son Purusattam became the Karta of the said HUF and his brothers and mother became coparceners and members of the said HUF. However, due to expansion of family members dispute arose amongst the coparceners of the HUF with regard to the use and occupation of the remaining flats on the ground floor and flat nos. 1B, 4A, 4B, 5A, 5B, 6, 7 and roof of the said building. With the intervention of the friends and well-wishers of the Tulsyan family the disputes were resolved by an amicable arrangement and settlement in respect of the use and occupation of the flats mentioned aforesaid along with right to use and enjoy the roof of the said building. The said arrangement was reduced in writing and culminated in the deed of family arrangement and partition executed on 24th February, 1999. The settlement, inter alia, includes the enjoyment of the remaining flats on the ground floor and flat nos. 1B, 4A, 4B, 5A, 5B, 6 and 7 and roof of the said building togetherwith car parking area in the basement and servant quarters on the ground floor with each flat togetherwith undivided proportionate share in the land of the said premises appertaining thereto with right to use and enjoy the common areas, benefits and utilities in the manner indicated in the said deed.

5. The predecessor in interest of the appellant namely, Satyanarayan Tulsyan was allotted flat no.7 as would appear from Clause 11 of the aforesaid deed of settlement read with Part-VII of the said deed. Clause 12 of the said deed records that the parties had agreed that the roof together with family temple built up thereon and all other areas of the said building in the said premises no.5A, Robinson Street Calcutta-700 017 not specifically allotted to the parties shall belong to and shall remain in common amongst the parties to the said deed. Satyanarayan mortgaged the said flat in favour of Fullerton India Credit Company Limited, a finance company. Due to failure to pay mortgage debt the said flat was put to sell and the defendants in the suit purchased the suit property in the auction sale.

6. The defendants on the basis of the deed of sale asserted their right of enjoyment of the roof of the building in question. The remaining members of the Tulsyan family who are presently residing in the suit property resisted such user of the roof on the ground that the deed of family settlement does not give any right to Satyanarayan to sell or transfer his interest in the roof in favour of a stranger.

7. In the earlier round of litigation between the parties we permitted the appellants to carry out repairing work on the roof immediately above the flat of the appellants under the supervision of an Advocate and we directed the learned Trial Judge to dispose of the injunction application on merits upo