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Ashutosh Sadukhan and ors. Vs. the Corporation of Calcutta - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in49Ind.Cas.93
AppellantAshutosh Sadukhan and ors.
RespondentThe Corporation of Calcutta
Cases ReferredBarada Prasad Roy v. Corporration of Calcutta
Excerpt:
calcutta municipal act (iii b.c. of 1899), section 341 - adverse possession--fixture--limitation--limitation act (ix of 1908), section 23, schedule i, article 146(a). - .....we think that the municipality lost their right to that portion of the land upon which the wall stands, having regard to the provisions of article 146 (a) of the limitation act. that article provides that for a suit by or on behalf of any local authority for possession of any public street or road or any part thereof from which it has been dispossessed or of which it has discontinued the possession, the period of limitation is 30 'years from the date of the dispossession or discontinuance. the rowak having been built about half a century ago as an integral part of the building, the right of the municipal corporation to that portion 'of the street or drain occupied by the wall of the rowak is barred by the provisions of that article.3. it is contended on behalf of the respondent.....
Judgment:

1. This appeal arises out of a suit for declaration of the plaintiffs' right to the land upon which a rowah or platform stands and for a further declaration that the defendants, the Corporation of Calcutta, have no right to interfere with the platform situated on the said land and for other reliefs.

2. It has been found that the rowak has been in existence for about 50 years, that it rests upon its own foundation and that it is an in-tegral part of the main building of the plaintiffs. Assumisg, therefore, that the land upon which the wall, of the rowak stands belonged to the Municipality as the owner thereof, we think that the Municipality lost their right to that portion of the land upon which the wall stands, having regard to the provisions of Article 146 (a) of the Limitation Act. That Article provides that for a suit by or on behalf of any local authority for possession of any public street or road or any part thereof from which it has been dispossessed or of which it has discontinued the possession, the period of limitation is 30 'years from the date of the dispossession or discontinuance. The rowak having been built about half a century ago as an integral part of the building, the right of the Municipal Corporation to that portion 'of the street or drain occupied by the wall of the rowak is barred by the provisions of that Article.

3. It is contended on behalf of the respondent that the erection of the wall is a continuing wrong and that limitation is saved by the provisions of Section 23 of 'the Limitation Act. That section certainly, cannot have any application to such a case. The injury was complete an the erection of the wall and there was no continuing injury: within the meaning of the Statute. The. effect may continue, but this does not extend the time of limitation.

4. Then it is contended that on the passing of the Act in 1899, the portion of the street and. the drain over which the rowak stands became vested in the Municipality, even if the rights to the same had been lost by adverse possession on the part of the plaintiffs. But although the drain or street is vested in the Municipality the projection, that is, the rowak, is found to be an integral part of the main building. That being so, it is not a fixture attached to the building and does not come within Section 341 of the Calcutta Municipal Act. See the case of Barada Prasad Roy v. Corporration of Calcutta CO 10 Ind. Cas. 310 : 13 C.L.J. 611 : 15 C.W.N. 780 .

5. The plaintiffs' right by adverse possession to the land on which the wall of the rowak stands will be declared. It will further be declared that the defendant has no right to interfere with the rowak nor with the corrugated iron shed over the rowak.

6. The appellants are entitled to their costs of this appeal.


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