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Richard De Souza Vs. Abdul Wahed and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberAppeal No. 66 of 1959
Judge
Reported inAIR1963Cal110
ActsEasements Act, 1882 - Sections 8 and 13
AppellantRichard De Souza
RespondentAbdul Wahed and ors.
Appellant AdvocateB.C. Dutt and ;Mitra, Advs.
Respondent AdvocateS.K. Mukherji and ;Mathura Banerji, Advs.
DispositionAppeal dismissed
Cases ReferredAnnapurna v. Santosh Kumar
Excerpt:
- .....of another portion of premises no. 89, collin street now known as 89b, collin street. there is a common passage to the east of premises no. 89, separating it, inter alia, from premises no. 89b. it is now admitted by all the parties before us that there is a common passage to the east of premises no. 89/1. in this appeal we are not directly concerned with that common passage.2. the plaintiff claims a declaration that a strip of land running along the entire northern boundary of premises no. 89/1, collin street as shown in the plan annexed to the plaint is a common passage. the plan annexed to the plaint is not drawn to scale but the plaintiff orally says that the width of the passage is about 5' to 6'.3. both premises no. 89 and 89/1, collin street were the subject matter of a partition.....
Judgment:

Bachawat, J.

1. The plaintiff is the owner of premises No. 89/1, Collin Street. The defendant No. 1 is the owner of a portion of the adjoining premises No. 89, Collin Street now known as premises No. 89-A, Collin Street. The defendants Nos. 2 and 3 are owners of another portion of premises No. 89, Collin Street now known as 89B, Collin Street. There is a common passage to the east of premises No. 89, separating it, inter alia, from premises No. 89B. It is now admitted by all the parties before us that there is a common passage to the east of premises No. 89/1. In this appeal we are not directly concerned with that common passage.

2. The plaintiff claims a declaration that a strip of land running along the entire northern boundary of premises No. 89/1, Collin Street as shown in the plan annexed to the plaint is a common passage. The plan annexed to the plaint is not drawn to scale but the plaintiff orally says that the width of the passage is about 5' to 6'.

3. Both premises No. 89 and 89/1, Collin Street were the subject matter of a partition suit being suit No. 1389 of 1937 on the Original Side of this Court to which all the owners of the two premises were parties. In that suit Shri Sushil Kumar Dutt, Bar-at-Law, was appointed Commissioner of Partition. By an order of Court dated December 20, 1940, Shri Dutt as Commissioner of partition made distinct and separate allotments of premises No. 89/1 and also the premises now known as 89A, and of other premises with a view to selling them. Premises No. 89/1 was sold by auction on March 20, 1942, and the property was conveyed to the plaintiff by an instrument dated the 21st August, 1942. The premises now known as premises No. 89A, was also sold by the Commissioner of Partition but the exact date of the sale does not appear from the evidence on the record. Subsequent to the conveyance dated the 21st August, 1942, the Commissioner of Partition executed a deed of rectification dated the 23rd June, 1950, whereby he purported to rectify, inter alia, the northern boundary of premises No. 89/1 given in the conveyance dated the 21st August, 1942. The plaintiff claims that the disputed strip of land was used as a passage for ingress to and egress from a door on the northern boundary of premises No. 89/1, and also that two windows in a room abutting on the common passage enjoyed unobstructed air and light from this open strip of land. The defendant has constructed structures on a portion of the disputed strip of land. The plaintiff claims that by reason of this construction the defendant has wrongfully obstructed the plaintiff's right of passage, as also his right of access to light and air in respect of the two windows.

4. The defendant No. I claims to be the owner of the disputed strip of land.

5. Before us the plaintiff through his Counsel expressly stated that the plaintiff does not claim to be an owner or co-owner of this strip of land. The disputed portion of the land is shown as included in premises No. 89A, in the plan annexed to the conveyance in favour of the defendant No. 1 dated the 13th April, 1949 by Md. Ismail, and Md. Israil and also in the partition plan, copy of which is annexed to the conveyance dated the 19th May, 1942, of the adjoining premises No. 91, Collin Street (Ext. 1). The partition plan was prepared by the Commissioner of Partition at the time of the allotments mentioned above. This partition plan was shown to the purchaser of premises No. 89-A at the time of its sale by the Commissioner of Partition. The area of the premises No. 89A is given in the conveyance dated the 13th April, 1949. There has been no local investigation, nor any attempt by the plaintiff to show that the disputed strip of land is not included in the premises No. 89A. For the purposes of this case I am satisfied on the evidence on the record that the disputed strip of land is included in the premises No. 89-A belonging to the defendant No. 1.

6. In the plaint the plaintiff claimed a right of common passage over the disputed strip of land by prescription. That claim is no longer made before us. It may be noted also that the plaintiff's Counsel did not claim a right of way over it by way of easement of necessity. Before us the plaintiff's Counsel claimed a right of way over the disputed strip of land on the ground (r) that the right of way over the strip of land had been expressly granted to the plaintiff by the deed of rectification D/- 23-6-1950 and/or by the conveyance D/- 21-8-1942, and (2) that, in any event, the Commissioner of Partition as representing the parties who owned both premises No. 89/1 and 89A impliedly granted in favour of the plaintiff an easement of way over it in as much as a quasi easement over it was, necessary for enjoying premises No. 89/1 as it was enjoyed on August 21, 1942 when the transfer in favour of the plaintiff took place. None of these contentions were advanced before the trial Court. On the materials on the record the plaintiff has not established either of these contentions.

7. I will deal firstly with the plaintiff's claim of express grant by the deed of rectification, dated the 23rd June, 1950. This deed purports to describe premises No. 89/1 as 'bounded on the north by passage common to premises No. 89 and 89/1, Collin Street'. Now the deed does not expressly grant a right of common passage over the disputed strip of land. Nevertheless, since the deed represents that there is an existing common passage to the north of premises No. 89/1, the plaintiff in a proper case would have been entitled to claim on the strength of this deed that there is such a common passage on a principle akin to estoppel (See -- Annapurna v. Santosh Kumar : AIR1937Cal661 .) If a vendor of an immovable property who owns the adjoining immovable property represents in the conveyance that the immovable property conveyed by him has an existing common passage over the other immovable property retained by him, he may well be estopped later from denying that there was no common passage over the other land. But this principle can have no application to the facts of this case. On April 13, 1949 before the execution of the deed of rectification, the defendant had become the owner of the premises No. 89A including this strip of land. No doubt premises No. 89A was previously owned by the parties to the partition suit No. 1389 of 1937, but on June 23, 1950 they had ceased to be the owners of the aforesaid premises including the disputed strip of land. Besides it is not shown that on June 23, 1950 Shri Dutt as Commissioner of Partition had any power to execute this deed of rectification on behalf of the parties to the partition suit. The conveyance dated the 21st August, 1942 does not reserve such power in favour of Shri Dutt, nor does it appear that he obtained any order of Court authorising him to execute the deed of rectification. On both these grounds the deed of rectification dated the 23rd June, 1950 cannot operate as an express grant of a right of way over the disputed strip of land.

8. The case of an express grant by the deed of conveyance dated the 21st August, 1942, must equally fail. In that deed the premises No. 89/1 is described as 'butted and bounded on the North and East by passage common to premises Nos. 88/2, 90 and 89 Collin Street.' There can be no doubt that part of this recital is incorrect. It is now admitted before us that on the east of premises No. 89/1 there is a passage common to premises No. 89/1 and other premises. The recital in that deed with regard to the eastern boundary of premises No. 89/1 is therefore necessarily, a mistake. It is argued forcibly that there is a mistake in the recital of the northern boundary. The recital of the northern boundary does not fit in with the case of either the plaintiff or the defendant No. 1. The defendant's case is that there is no common passage at all to the north pf premises No. 89/1 whereas the plaintiff's case is that there is a passage to the north of premises No. 89/1 which is common to premises Nos. 89 and 89/1. Nevertheless I am not satisfied that the Commissioner of Partition intended to set apart the disputed strip of land as a common passage or to show a common passage as the northern boundary of premises No. 89/1. The contemporaneous partition plan already referred to does not show that there was a common passage to the north of premises No. 89/1. Besides the deed dated 21st August, 1942 does not expressly grant the right of passage nor is a case of grant on the principle akin to estoppel is made out. There is no representation in the deed of an existing passage common to premises No. 89 and 89/1 to the north of premises No. 89/1. in order to found the claim of estoppel, there must be a clear and unambiguous representation. There is no such representation in, this case. Besides the precise date of the sale and conveyance of premises No. 89A by the Commissioner of Partition is not known. it is not established before us that on the 21st August, 1942, the Commissioner of Partition or the parties to the partition suit who were represented by the Commissioner of Partition had any authority or power to grant an easement of way over the disputed strip of land.

9. Let me now examine the claim of implied grant of easement. The plaintiff has failed to establish that on August 21, 1942 when premises No. 89/1 was conveyed to him, there was any door on the northern boundary of the premises. In agreement with the learned Trial Judge we are unable to accept the testimony of the plaintiff as also of his witness Gorachand Chandra with regard to the existence of the door. The plaintiff stated that the door was blocked in 1953. This rase is false. if there was any blocking as alleged by the plaintiff I would have expected some serious correspondence on the matter. Not a single protest in writing with regard to this alleged blocking is produced by the plaintiff. His witness Gorachand attempted to say that he saw the door in the year 1955. This case must be wholly false because even according to the plaintiff, the door was blocked in the year 1953. in the sketch plan drawn by Gorachand the disputed strip of land re shown as a common passage. But he did not see any door and he could not of his own knowledge say that the disputed strip of land was a common passage. I accept the testimony of the defendant and his witnesses and particularly of Md. Sarafuddin and Md. Ismail who were not shaken in cross-examination at all. The truth of the matter is that the disputed strip of land was used as a courtyard and as a passage by the inhabitants of the riled huts on premises No. 89, for access to the privy existing on the western part of it and to the passage on the eastern side.

10. The plaintiff claims a right of common passage over the disputed strip running along the entire northern boundary of premises No. 89/1. But the materials on the record show clearly that until recently there was a privy on the western part of the disputed strip of land. The width of the alleged common passage is not clearly shown. The plan annexed to the plaint, as also the plan drawn by Gorachand, are not drawn to scale. The evidence of both the plaintiff and Gorachand with regard to the width of the alleged common passage is not reliable.

11. The plaintiff has not established before us that there was a door on the northern side of premises No. 89/1, on the 21st August, 1942. Consequently his case that the disputed strip of land was used as a common passage for ingress to and egress from the door must fail. The plaintiff has failed to establish that a quasi easement of way was enjoyed over this strip of land when the conveyance in his favour took place. The case of implied grant of easement must fail on this ground as also on the ground that it is not shown that on the date of the conveyance of premises No. 89/1, in favour of the plaintiff, the vendors of premises No. 89/1 were also the owners of the disputed strip of land.

12. Throughout this judgment I have referred to the conveyance dated the 21st August, 1942, as a conveyance in favour of the plaintiff for the sake of convenience. In fact the conveyance was in favour of the plaintiff and his father. The father died shortly after the conveyance and after his death the plaintiff became the full owner of the premises No. 89/1.

13. The case of easement of light and air though made in the plaint is not now pressed before us.

14. in the circumstances, the appeal most fail. We pass the following order : The appeal be and is hereby dismissed. Each party will pay and bear its own cost of this appeal.

Laik, J.

15. I agree.


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