Skip to content


Lalmoni Dasi Vs. Bolye Chunder Sen - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1887)ILR14Cal796
AppellantLalmoni Dasi
RespondentBolye Chunder Sen
Excerpt:
partition - family dwelling-house--partition wall--open space of ground--easement. - .....were declared, partition was ordered, and a commission issued, with the other directions usual in partition decrees. the decree contains these words: 'it is ordered that the plaintiff and defendant do, at the request of either party, and at the expense of the party requiring the same, execute mutual conveyances to each other of their respective shares, such conveyances to be settled by one of the judges or the registrar of this court in case the parties differ about the same. the commissioners effected a partition and made theirreturn. on the 19th december, 1872, an order was made by which the certificate of the commissioners was confirmed, and it was 'further ordered that the plaintiff be at liberty to take exclusive possession of such portions of the properties as have been allotted.....
Judgment:

Wilson, J.

1. In this case the plaintiff, as owner of the house No. 8/1, Gopikishen Pal's Lane, sued the defendant, the owner of adjoining premises, in respect of infringements, actual and threatened, of her alleged right to the free access of light and air, by the erection of a wall. The plaintiff claimed damages and an injunction. Of the written statement it is enough to say that, amongst other things, it denied the right of the plaintiff to the light and air claimed. The plaintiff's house and the defendant's were formerly one property, forming a family dwelling-house, No. 8, Gopikishen Pal's Lane. In 1871 the defendant's predecessor in title, who was entitled to a three-fourths share of the property, sued the plaintiff's predecessor in title (he is also her husband), the owner of the other one-fourth, in this Court for partition. On the 14th March 1871, a decree was made by which the shares were declared, partition was ordered, and a commission issued, with the other directions usual in partition decrees. The decree contains these words: 'It is ordered that the plaintiff and defendant do, at the request of either party, and at the expense of the party requiring the same, execute mutual conveyances to each other of their respective shares, such conveyances to be settled by one of the Judges or the Registrar of this Court in case the parties differ about the same. The Commissioners effected a partition and made theirreturn. On the 19th December, 1872, an order was made by which the certificate of the Commissioners was confirmed, and it was 'further ordered that the plaintiff be at liberty to take exclusive possession of such portions of the properties as have been allotted to her by the said Commissioners, and to raise partition walls.' The parties took possession of their respective shares, and they and their successors in interest have so continued down to the date of the suit. No conveyances have been executed. The share allotted to the plaintiff's predecessor formed the western portion of the premises partitioned, and was covered with buildings. The share allotted to the defendant's predecessor, where it adjoined the other share, consisted partly of buildings in immediate contact with and forming one brook with the buildings on the share of the plaintiff's predecessor, and partly of open courtyards. These old buildings have been pulled down; and the defendant was proceeding to erect a wall along the whole western edge of this land; the effect of which was, it has been; found, to interfere materially with the access of light and air to the plaintiff's house. The case was heard before Trevelyan, J. The learned Judge refused to give the plaintiff any relief in respect of those portions of his premises, which were exposed by the demolition of the buildings on the defendant's land, in other words, he has left the defendant free to build on the old sites and to the old height; and so far there can, we think, be no doubt that he was right. With this exception he has enjoined the defendant from erecting anything to obstruct the plaintiff's light save by a wall of not more than six feet in height. Against this decree the defendant has appealed. No serious exception was taken to the details of the injunction ordered, if an injunction ought to issue at all, but two questions were raised: First, it was contended that, on the evidence in the case as it stands, the plaintiff had shown no title to the access of light and air as against the defendant; and, secondly, that the learned Judge had rejected evidence which ought to have been admitted. As to the first question it was contended that, although in the case of a sale or other transfer inter partes a grant of the easement claimed by the plaintiff would be properly implied, no such right can be implied in the case of a partition by the Act of a Court of law. The question so suggested appears to us one of considerable difficulty; but it is not, we think, necessary to decide it in the present ease. The defendant's predecessors in title entered upon the share allotted to her, on the strength of the original partition decree of the-14th March 1871, and the order of the 19th December, 1872. By the decree either party could insist upon mutual conveyances; she was, therefore, bound to execute a conveyance whenever required, and she could not in equity be allowed to deal with the land in such a way as would defeat any conveyance called for. And the present defendant who takes through her, and from the very nature of the case with full notice, is in no better position, so that, for the present purpose, the case is the same as if there had been conveyances. And the terms of the subsequent order very much strengthen the ease. It expressly authorized the then plaintiff, the now defendant's predecessor, to 'raise partition walls.' That goes far to negative the right to raise any other obstruction ; and we agree with the learned Judge in thinking that, when open spaces are spoken off, 'partition walls' do not mean blocks of building, but such walls as are used for partitioning open spaces. The first objection to the decree therefore fails.

2. The other contention as to the rejection of evidence was also decided against the appellant.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //