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Nrisingha Prosad Chatterji Vs. Girindra Nath Mukerji - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in165Ind.Cas.941
AppellantNrisingha Prosad Chatterji
RespondentGirindra Nath Mukerji
Excerpt:
deed - construction--intention of parties--language must be looked to. - .....were sought. in the first case which the munsif dismissed, the relief claimed was found on an alleged covenant running with the land or in the alternative, and by way of an after-thought we think, upon an easement of necessity. in the second suit ho partly granted the relief asked for which eras based upon a complaint of conduct amounting to trespass and nuisance, and gave a small award in damages. it is to be noted that the two protagonists to this litigation are prominent local pleaders. the whole of this litigation seems to have been permeated with sustained malice and it was of so protracted a nature (every conceivable issue relevant or otherwise being raised) that it produced condition of almost incredible verbosity in both the judgments of the lower courts. we do not propose.....
Judgment:

1. These are appeals from a joint judgment of the Additional Judge of Nadia, allowing an appeal from a judgment of the Munsif at Krishnagar and dismissing two cross-appeals from the same Munsif in a connected case.

2. In both disputes which were quarrels between neighbours in relation to a boundary, an injunction and damages were sought. In the first case which the Munsif dismissed, the relief claimed was found on an alleged covenant running with the land or in the alternative, and by way of an after-thought we think, upon an easement of necessity. In the second suit ho partly granted the relief asked for which eras based upon a complaint of conduct amounting to trespass and nuisance, and gave a small award in damages. It is to be noted that the two protagonists to this litigation are prominent local Pleaders. The whole of this litigation seems to have been permeated with sustained malice and it was of so protracted a nature (every conceivable issue relevant or otherwise being raised) that it produced condition of almost incredible verbosity in both the judgments of the lower Courts. We do not propose to follow this example. We are satisfied that the Judge of the lower Appellate Court was right in disallowing the second appeal before him but we are not satisfied that he was justified in allowing the appeal in the suit concerned with the alleged easement or covenant running with the lands.

3. Without setting out the evidence again we are convinced that there was not an easement of necessity or any easement at all. The circumstances in no way warranted the establishment of such a servitude which can only arise under conditions quite dissimilar to those which prevail here.

4. As to the alleged covenant of a restrictive nature running with the land w-e are also satisfied that no such obligation was in existence between the parties. The agreement which it was attempted to construe as a restrictive covenant was nothing more than a personal licence granted by a vendor to a purchaser.

5. It is by the language alone of any written agreement that the intention of the parties thereto can be deduced. In this agreement there is no indication that any right granted by the vendor was intended to follow the land. The covenants in the agreement aforesaid were not incorporation in the 'Kobala' which was executed and it may also be observed that it was with hesitation that the Munsif did not hold that the obligee was guilty of fraud with regard to the fabrication of certain parts of the agreement and its subsequent registration. We doubt had we been in his place whether we should have shared this hesitation--so unconvincing are his reasons for rejecting the arguments in support of this contention.

6. Consequently we are of the opinion, that the judgment of the trial Court in what we may call the 'Easement' case should be restored and costs will follow this event.

7. To sum up, appeal No. 832-33 is allowed and the other appeal (S.A. No. 833-33) is dismissed with costs. Cross-objections are also dismissed as being incompetent.


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