Easement rights to a common passage persist unless formally surrendered; courts require clear evidence of encroachment to uphold claims.

SUPRATIM BHATTACHARYA, J.

1. The present appeal has been preferred assailing the judgment and decree dated 08.04.2016 passed by the learned District Judge, Hooghly in Title Appeal no. 141 of 2015.

2. Through the said judgment the First Appellate court has passed the following “Hence, Ordered that the defendants are to remove the window shades jutting out on the B schedule property and also remove the open drain as well as opening of pipes from the B schedule property within a period of three months from the date of this judgment, in default the plaintiff/appellant is at liberty to put the decree passed by this Court into execution. No order as to costs. ...”

3. The present lis has been instituted by the respondent No.1 namely Smt. Kakali Das along with her husband the proforma respondent namely Goutam Das who were the plaintiffs in the trial court. The husband and mother of the present appellants herein was the defendant No.1 before the trial court, on his death the present appellants have been substituted. The respondent No. 2 herein that is Hooghly Chinsurah Municipality was the proforma defendant No. 2 while the respondent No. 3 herein namely Biswamohan Datta was the proforma defendant No.3 before the trial court.

4. The facts which have given rise to the present lis is that Biswamohan Datta the respondent No. 3 herein was the erstwhile owner of the suit property along with other properties situated at Pipulpati, Kadamtala Mouja-Kulihanda, P.S. Chinsurah, District-Hooghly. The respondent No.3 herein being the owner of large property sold some of his properties to Manibhusan Datta and Binoybhusan Datta. Thereafter the said Biswamohan Datta again sold some of the properties to Chittaranjan Sinha (since deceased) who was the husband and the father of the present appellants, vide two deeds of sale dated 13.06.1991 and 23.01.1992.

Thereafter the said Biswamohan Datta gifted some of his properties to his daughter and son-in-law who were the plaintiffs before the trial court vide two deeds of gift dated 24.11.1999 and 11.03.2003.

5. Through the deed of sale dated 23.01.1992 in favour of Chittaranjan Sinha the said Biswamohan Datta along with other properties had given the right of user of the B schedule property mentioned in the plaint which is a strip of land measuring about 51 feet in length and 4 feet wide.

Thereafter vide the deed of gift dated 11.03.2003 the said Biswamohan Datta gifted the self same B schedule property of the plaint to his daughter and son-in-law absolutely. The plaintiffs have alleged that the appellant/defendant has been constructing sun shade and boxes surrounding the windows in the wall facing the B schedule property and have also alleged that rain water pipe, generator pipe and other pipes are being fixed in the wall of the building belonging to the appellants mentioned in the C schedule of the plaint facing the B schedule property thereby encroaching the B schedule property.

6. This alleged encroachment of the B schedule property by construction of windows, sun shades and fixing of pipes have given rise to the present lis.

7. Facts before the Trial Court

The plaintiffs through the plaint have prayed for the following:

“a) for a declaration that the defendant no.1 has no right to open windows, shades, slabs upon and /or beneath the windows in the eastern wall of the defendant’s house as described