Arun Kumar Boral vs Nirmal Chandra Mukherjee

Sabyasachi Mukharji, J.—This is a fight over flights, at a time when the world was feeling the thrill of man''s flight to the moon� this Court had to concentrate in this Originating Summons on the rights of two claimants in three flights in a staircase in an old building in Calcutta.

One Sarat Chandra Mukherjee, since deceased, was the owner of land and property previously known as No. 3C Hidaram Banerjee Lane, Calcutta. The said land and property which was previously known as No. 3C Hidaram Banerjee Lane, Calcutta, comprised, inter alia, of land and property now known as No. 3C Hidaram Banerjee Lane, Calcutta, and No. 11/1/1A Chaitan Sen Lane, Calcutta. It appears that the said Sarat Chandra Mukherjee had three sons. Sarat Chandra Mukherjee made a Will dated May 18, 1945. He died in January 1946. On or about April 16, 1946, probate to the said Will of Sarat Chandra Mukherjee, hereinafter referred to as the testator, was granted to the executors by this High Court." By the said Will mentioned hereinbefore the testator, inter alia,, bequeathed part of his dwelling house then known as 3C and 3/2 Hidaram Banerjee Lane, Calcutta, to his three sons in severalty by bequeathing No. 3/2 Hidaram Banerjee Lane, Calcutta, to his eldest son and dividing the premises then known as No. 3C Hidaram Banerjee Lane into two portions in lots and demarcating the same in a plan attached to the said Will. By the said Will, the testator bequeathed, inter alia, the portion of the said dwelling house marked as lot No. 2 in the plan, to his son Nirmal Chandra Mukherjee and the portion marked as lot No. 3 in the said plan to his youngest son, one Dhananjoy Mukherjee. The said Will contained a clause to the following effect:

The portion of the existing staircase in lot No. 3 at its northeastern corner which runs from the balcony upto the top of the house in lot No. 2 shall be used as a common staircase between lot No. 2 and lot No. 3.

It is this clause that is the cause of this unfortunate litigation. On October 17, 1958, one Arun Kumar Boral, being the present Plaintiff in the Originating Summons, purchased from the said Dhananjoy Mukherjee the said lot No. 3 bequeathed to the said Dhananjoy Mukherjee under the said Will of the testator.'' The said lot No. 3 is now numbered as 11/1/1A Chaitan Sen Lane, Calcutta.

It appears that the premises in dispute was the dwelling house of the testator. It consisted at the time of the said Will of three distinct blocks. The floors of the main building in lot No. 3 were at higher level than those of lot No. 2. There was also in the north-eastern corner of lot No. 3 a staircase which- could be used to go to the 1st, 2nd and 3rd floors of lot No. 2 and also to go to the 1st, 2nd and 3rd floors of lot No. 3. There was and still is in lot No. 2 a separate staircase from the ground floor to the 1st floor thereof, there are two other flights of the same staircase being flights Nos. 8 and 9. The dispute centers round three flights being flights Nos. 7, 8 and 9. The Plaintiff Arun Kumar Boral contends that upon a proper construction of the Will the allottee of Jot No. 2, being the Defendant Nirmal Chandra Mukherjee, has right of user in the said staircase which according to him is that consisting of flights Nos. 1, 2, 3, 4, 5, 6 and 7 and of that said staircase only the portions consisting of flights Nos. 3, 4, 5 and 6 thereof are and were intended to be used as common. It is the further contention of the Plaintiff that the flights Nos. 7, 8 and 9 of the said stairs do not run from the balcony upto the top of the house of lot No. 2.

As it is to be expected in a situation like this there have been a spate of litigations between Arun Kumar Boral and Dhananjoy Mukherjee over this point, both civil and criminal. It would be necessary to refer to some of these litigations for determination of certain rival contentions in this case.

On July 17, 1967, this summons was taken out by the Solicitors on behalf of the Plaintiff Arun Kumar Boral for the determination of the following questions:

(a) Has the Defendant as owner of lot No. 2 mentioned in the Will of the testator any right to use any portion of the said staircase above that leading to topmost floor of lot No. 2, i.e. beyond or above the flight No. 6 ?

(b) Has the Defendant any right to use any portion of the Plaintiff''s lot No. 3 mentioned in the above Will except the said portion of the said staircase ?

(c) Is the Defendant obliged to contribute to the maintenance or repairs to the said portion of the said staircase to be used as common between lots Nos. 2 and 3 ?

The Defendant entered appearance and filed the affidavit. This Originating Summons has been marked as a suit. There was a suit filed in the City Civil Court being Title Suit No. 657 of 1966 by Nirmal Chandra Mukherjee, the present Defendant to the Originating Summons against Arun Kumar Boral, inter alia, for injunction and certain incidental relief�s in respect of the said staircase. There were certain interlocutory applications and proceedings in the said title suit in the City Civil Court. There was an application to this Court for transferring the said suit of the City Civil Court, and all proceedings thereof from the City Civil Court. On June 7, 1968, A. N. Sen J. made an order by consent of parties transferring the City Civil Court suit to this Court and directing that the City Civil Court suit be heard along with the Originating Summons suit in this Court. A. N. Sen J. observed that the learned Judge, who would be dealing with the Originating Summons matter, would decide which of the matters be taken up first. Before me, I had directed that the Originating Summons to be determined upon evidence, and consequently I had given necessary directions for discovery of documents and inspection thereof. Thereafter, the Originating Summons was heard* by me upon evidence. I had directed, with the consent of the parties, that the evidence taken in the Originating Summons would also be treated as evidence in the suit. I shall deal with the contentions of the parties in the Title Suit No. 657 of 1966 of the City Civil Court which has been transferred to this Court and has been marked as Extra-Ordinary Suit No. 21 of 1968 in a separate judgment to be delivered hereinafter. Model, plans, reports of the engineers and numerous other documents were tendered as exhibits in this case, a large number of witnesses were called. As is inevitable in a case like this, most of the evidence is wholly immaterial and irrelevant for the purposes of adjudicating the rights of the parties in dispute in this action. I, therefore, propose only to deal with such evidence, oral and documentary, while dealing with the specific issues so far as they are relevant for the purpose of this action.

On January 3, 1969, the following issues were settled:

What was intended by the testator Sarat Chandra Mukherjee by the relevant clause in the Will dated May 18, 1945, in relation to the common staircase between lots Nos. 2 and 3 of premises No. 3/C Hidaram Banerjee Lane, Calcutta, as mentioned in para. 7 of the affidavit of Arun Kumar Boral ?

Do flights Nos. 7, 8 and 9 lead to the roof of lot No. 2 and lot No. 3 ?

Does flight No. 7 lead to any room or ante-room as alleged by Arun Kumar Boral ?

(a) Has the Defendant exercised any right of way in the rooms in the several floors belonging to the Plaintiff for the last 40 years ?

(b) If so, has the Defendant acquired any right by such user ?

(c) If so, is the Defendant entitled to any right ?

Is the present Originating Summons barred by res judicata or principles analogous thereto in view of the Title Suit No. 688 of 1963 in the City Civil Court and the judgment relating to that ?

Has this Court jurisdiction to entertain and try this suit on the grounds mentioned in para. 17 of the affidavit of Nirmal Chandra Mukherjee ?

To what relief is the Plaintiff entitled ?

Issues 1, 2 and 3:

These issues are inter-connected and may conveniently be dealt with together. The main question, in my opinion, in this litigation is the construction of the relevant expression in the Will of the testator, namely, "the portion of the existing staircase in lot No. 3 at its north-eastern corner which runs from the balcony upto the top of the house in lot No. 2...." It is, therefore, necessary to find out if there was (a) an existing (b) staircase in the portion which is marked as lot No. 3 in the plan at its north-eastern corner (c) which runs from the balcony upto the top of the house in lot No. 2 at the time of the Will of the testator. If it is found out that there was such an existing staircase at the time of the Will of the testator, then it would be necessary to determine the number of flights that constituted that staircase and which of the flights of that staircase which ran from the balcony upto the top of the house in lot No. 2-It will necessarily involve the question of the meaning of the expression ''top of the house''. According to the Plaintiff, this existing staircase referred to in the said clause of the Will consists of only seven flights. According to the Plaintiff, the said staircase consists of seven several flights and the flight No. 6 leads to the 3rd floor of lot No. 2, being the topmost floor of that lot, and after leaving the third floor, the last flight, being flight No. 7 of the staircase, turns into a room or an ante-room belonging to lot No. 3 and after passing through the same one comes to two other flights, namely, Nos. 8 and 9 of the stairs. According to the Plaintiff, there is no flight of stairs leading to the roof of lot No. 2. Nirmal Chandra Mukherjee, the Defendant herein, on the other hand asserts that there are nine several flights of the existing staircase referred to in the Will. So the question is, do the flights Nos. 7, 8 and 9 form part of the staircase referred to in the relevant clause of the Will which is the common staircase ? Opinions have differed of the engineers whether they are part of the staircase. Arguments have been advanced on the expressions whether the ''top -of the house'' mean the roof of the house or not and whether the expression ''staircase'' involves two ingredients, stairs and case. It was contended that the flights Nos. 8 and 9 are in a different case. Counsel for the Defendant drew my attention to the observations of the Privy Council in the case of Indira Rani Ghose v. Akhoy Kumar Ghose L.R. 59 IndAp 419 (430). Lord Blanes-burgh delivering the judgment of the Privy Council observed:

To their Lordships this appears to be peculiarly a case similar to those referred to by Lord Macnaghten when delivering the judgment of the Board in Narendra Nath Sircar''s case 23 LA. 18 26 in which, care must be taken lest the wills of people speaking a different tongue, trained in different habits of thought, and brought up under different conditions of life, are interpreted by the application to them of a too rigid construction of the English language.

On this aspect, learned Counsel also drew my attention to the meaning of ''top'' in the Chamber''s Dictionary and to the evidence of Shyamapada Chatterjee, a nephew of the testator who was one of the attesting witnesses and who was given the right of residence in a room in the house forming part of lot No. 2 and who was brought up in the said house. According to him, in answers to Qs. 54 and 55 of his evidence this staircase includes nine flights leading to the roof of lot No. 2 Learned Counsel for the Defendant, therefore, urged that giving an ordinary meaning to the expression, what was intended by the testator, was that access by this staircase would be given to the allottee of lot No. 2 to go to the roof of the house in lot No. 2. Learned Counsel for the Plaintiff, on the other hand, contended that it had to be borne in mind that the staircase was in the lot No. 3 and the right of common user must be strictly construed and such a construction should be avoided which would detract from the grant made in favour of the allottee of lot No. 3. It was further contended that the flight No. 7 led to a room or ante-room belonging to lot No. 3 and it was inconceivable that the testator had given any access through a room belonging to the allottee of lot No. 3. It was then urged, on behalf of the Plaintiff, that in order to reach the roof of lot No. 2 by flights Nos. 7, 8 and 9 one had to traverse through the portions which were not parts of the staircase. As such, such a construction, it was submitted, should not be made. It was then urged that inasmuch as the testator had not used the expression ''roof and such a construction should not be made so as to include the roof within the meaning of the word ''top''. Learned Counsel then submitted that inasmuch as the testator had indicated his desire that the allottee of lot No. 2 should have a separate staircase from its ground floor to the balcony, similarly there were indications that for the access to the roof of the house in lot No. 2 such a separate staircase would have to be constructed by allottee of lot No. 2. Learned Counsel drew my attention to the meaning of the expression ''case'' as appearing in the Oxford Dictionary (vol. II. 3rd ed., p. 1995). He drew my attention to the reports of the engineers and exhibit in this case. He also relied on the answers to questions Nos. 33 and 34 of Subir Chatterjee, a witness called on behalf of the Defendant. He also drew my attention to the portions of the affidavit of Nirmal Chandra Mukherjee affirmed on September 15,1967. Learned Counsel for the Plaintiff relied on the following observations of Cotton L.J. in the case of Ralph v. Carrick 11 Ch.D. 873 (878):

As regards our duty when wills come before us for construction it is obvious to say that it is in each case to consider the words of the will. I say that, for the purpose of calling attention to the argument, that in the absence of any rule of law laid down or established by cases we are at liberty to construe wills as ordinary intelligent persons would do. There is a fallacy in this. We are bound to have regard to any rules of construction which have been established by the Court, and subject to that we are bound to construe the will as trained legal minds would do. Even very intelligent persons whose minds are not so trained are accustomed to jump at a conclusion as to what a person means by considering what they, under similar circumstances, think they would have done. That is conjecture only, and conjecture on an imperfect knowledge of the circumstances of the case, because the facts known to the testator may not all be before them, and the testator''s mind, as regards the attention to be paid to the claims of the different parties dependent upon him, may not have been constituted as their minds are constituted, so that it cannot be concluded that he would have acted in the same way as they. We therefore must construe the will as we should construe any other document, subject to this in wills, if the intention is shown, it is not necessary that the technical words which are necessary in same instruments should be used for the purpose of giving effect to it.

It would be convenient in this context to consider issues 2 and 3. Several witnesses have tried to give evidence on this point, nine photographs being Ex. 6 and a model of building being Ex. B have been tendered though there have been criticisms that they do not precisely and correctly represent the true position. It appears to me from the evidence and the cross-examination that they approximately present the position so far as the main features of this case are concerned and can be relied upon for the purpose of adjudicating the present controversy between the parties. The photograph No. 3 in Ex. 6 indicates the landing place of flight No. 7, which fan also be called a covered verandah or a corridor, it has a window and a door and through that door one enters the flights Nos. 8 and 9 which are admittedly in a different case and do not fall within the covered area of the staircase in dispute. That position would appear from the photograph No. 4 in Ex. 6. After that one reaches the flight No. 9, one immediately steps in the roof of the staircase upto the flight No. 7, and then one can go to the roof of the house in lot No. 2. This position would be apparent from the photographs as well as the house-model being Ex. B. It has to be remembered that this staircase is in the lot No. 3. It has further to be remembered that as one steps out of the flight No. 8 one has to traverse a landing place which is on the lot No. 3. The Plaintiff in this action has contended, firstly, that, the flights Nos. 7, 8, and 9 do not lead to the top of the house of lot No. 2 but to the roof or top of No. 3, and secondly, after flight No. 7 the covered area of the landing place is really a room or an ante-room having a window and a door and, as such, flight No. 7 does not lead to any portion of lot No. 2. For these reasons the Plaintiff contended that they did not form part of the staircase in dispute. It must further be remembered that at the time of the Will of the testator as well as at the time of his death it was only by the process of the flights Nos. 7, 8 and 9 that one could have reached the roof of the lot No. 2. In this context, it may be relevant to discuss portions of certain evidence adduced in this case. One Sri Shyamapada Chatterjee was called by the Defendant as a witness. The Defendant is the second maternal uncle of the said witness, the testator was his maternal grand-father. This witness has been given certain benefit in the Will of the testator by way of right) of residence. He has tried generally to give the background of the Will. He was one of the executors of the said Will. According to him, in answers to Qs. 54 to 62 of his evidence there are nine flights in the disputed staircase. He generally identified the photographs referred to hereinbefore. He was asked what he did as the executor of the Will and how he understood the plan and the Will. My attention was drawn to the answers to Qs. 122 to 124 of his evidence. I do not think that in determining the present issues before me the evidence of his witness helps either way. The other witness, on whose evidence some reliance was placed by the Defendant, was one Sri Naresh Chandra Roy. He is an Advocate, practicing in the City Civil Court, and he had inspected the premises in connection with the title suit filed in the City Civil Court. He was appointed pleader commissioner and he made a report dated May 12, 1967, which has been tendered as Ex. 7. It was suggested that he was asked to report on the condition of the staircase so as to consider the question whether the said staircase would require repairs or not. But he has traveled beyond the scope and has made observations about continuous nature of flights of the said staircase which he had no business to do. Again, I am of the opinion, the evidence of this witness is also of no material assistance in determining the present controversy. My attention was drawn by counsel for the Defendant to his answers to Qs. 38 and 39. Sri Subir Kumar Chatterjee was also called as a witness by the Defendant. He said that the Defendant was the uncle of the mother of this witness. According to him, he was born and brought up in that house. He is about 30 years of age. He has generally given evidence about user, closure of door in the corridor of the landing place in the seventh flight by the allottees of lot No. 3 and the criminal and civil litigations and the disputes between the parties. He has proved the photographs. My attention was drawn to his answers to Qs. 18-28, 33, 40 and 85 of his evidence. Two engineers were called to give evidence in this case. On behalf of the Plaintiff one Sri Probodh Chandra Chatterjee, who is a panel'' Surveyor and Valuer of this High Court, was called as a witness. He inspected the premises in question and made a report dated April 24, 1967. His report has been tendered as Ex. A He has stated that the report was correct. He also said that the model Ex. B, more or less, roughly represented the true position though not actually to the scale. My attention was also drawn to answers to Qs. 68 and 69 of his evidence. In his report Sri Chatterjee has mainly stated about the condition of the s!(^airs and the necessity of repairs. He has not stated in the report anything as to question whether the nine flights of the stairs form part of one continuous staircase. In answers to Qs. 49 to 51, Sri Chatterjee has stated that the expressions ''covered landing space'' and'' ''verandah'' could only be distinguished from a particular situation. Theoretically, according to him, it was not possible to distinguish them. He has further stated that these expressions could be used interchangeably in answers to Qs. 68 to 70 of his evidence. He stated that in order to reach the topmost part of the house one had to use flights Nos. 8 and 9 of the stairs. Sri Dinesh Chandra Banerjee, who is also an engineer, was called as a witness by the Defendant. He is also in the panel of engineers of this High Court and he has made a report dated January 8, 1969. He has proved that report which has been tendered and marked as Ex. 3(a). According to him, in answers to Qs. 12-13 he has stated that the nine several flights formed part of one continuous staircase. He has stated the same thing in his report also. He was cross-examined and it was suggested to him that there were several wrong assumptions and mistakes in his report. These mistakes are, however, not germane to the present, controversy. The Plaintiff Arun Kumar Boral also gave evidence, but for the determination of the present issues I have not been able to find anything material from his evidence.

The principles of law which should guide Courts in a matter like this are fairly well-settled, but their application to a particular situation often presents difficulties. The cardinal rule is to give effect to the intension of the testator as declared by him in the words of his Will so far and as nearly, as may be consistently possible with the law. It is, therefore, necessary to consider two matters, firstly, what is the intension of the testator as disclosed by the expressions used in the Will, and secondly, how can effect be given to that intention. The intention of the testator must primarily be sought in the words of the testator as used in the Will, normally, according to their natural and grammatical meaning, but that meaning can sometimes admit of modification to accord with the real intention shown by the Will as a whole and in the context of the surrounding circumstances. The ordinary meaning of the words is the meaning given to these by the ordinary uses of society, that is to, say, society of the testator. For this purpose, the Courts may, if necessary, consult dictionary of good reputation and other contemporary literary sources. In case of ambiguity, evidence may however, be admitted and considered. Evidence, however, will not be admitted where the meaning is plain and unambiguous. In that context too rigid a construction of the language foreign to the society in which the testator lived should not normally be made. It is also true that in the absence of evidence we should not speculate upon the condition and circumstances in which the testator understood a particular word. The Court should not consider, in the absence of compelling reasons and evidence in a particular case, anything apart from the well-established rules of construction in construing the expressions used in a Will by a testator. If one approaches the problem in that background then there is no conflict between the observations of Lord Blensburgh (Supra ) and the observations of Cotton L.J. (Supra ) referred to hereinbefore. Bearing the above principles in mind one has to approach the facts and circumstances of this case.

An argument was made that, so far as the bequest of lot No. 3 is concerned, the testator has not used the expression ''absolutely'', while in case of bequest in the case of lot; No. 2 the testator has used the expression ''absolutely''. It was contended that this was a pointer of the fact that right had been given to the allottee of lot No. 3 to use staircase for going to the roof of the house. I do not think that this argument is of any assistance t� the Defendant. In the context of the Will, I am of the opinion that much should not be made of the omission of the expression ''absolutely''. Reading the Will as a whole it appears that this omission is accidental. It appears to me that the key to the construction of the clause must be found in the expression ''top of the house in lot No. 2''. So far as the background of the use of this expression is concerned, it has to be borne in mind that the testator was making an allotment between his two sons. The testator was giving to his two sons two different lots to be used and enjoyed by them. It has also to be borne in mind that the Will was of a Bengali gentleman in respect of his property in the year 1945. These allotments were being made in respect of the family dwelling house. These facts are available on record and can be relied upon. If, however, beyond this I, who has lived in this city at the relevant time and knowing the importance of a proof in a household in this part of the country and knowing also the fact in the year 1945 the system of living in flats and ownership of flats had not become popular in Calcutta, conclude that by the use of the expression ''top of the house'' the testator had meant the roof of the house, then it might be contended that I am speculating on certain points without any- evidence on record. Without entering into the controversy as to whether the considerations of these matters, just mentioned hereinbefore, would involve speculation without evidence or would be a matter of taking judicial notice of certain well-known facts, for the purpose of this case, it is not necessary for me to rely upon these factors.

I do not find anything in the context to cut down the ordinary meaning of the expression ''top of the house''. According to the Chamber''s Dictionary (20th Century, 1969, p. 1161) ''top'' means the ''highest part or place'', ''the upper end or the surface''. According to the Oxford Dictionary ''top'' means ''summit, highest part''. Keeping in mind the ordinary meaning and the dictionary meaning of the expression ''top of the house'' one must, therefore, conclude that when access to the top of the house in lot No. 2 was being ensured by right of user of the staircase, what was intended was that access would be available to the roof of that house. It is now necessary to examine the context, in which the expression has been used and the relevant submissions made in this connection. Roof in a house in a tropical country forms an integral part of the building and generally access to the roof should'' be presumed. It has, moreover, to be remembered that the testator has not indicated that for the access to the roof of lot No. 2 the allottee of lot No. 2 would have to construct or might contract a separate staircase. It was contended that by the ''top'' what was meant was the access to the top floor. I am unable to accept the contention. In the language of the expression and in the context in which it has been used I do not find anything which indicates that the ordinary or the literary meaning of the expression ''top'' should be so construed as not to mean the highest part but the top floor. To do so would, therefore, be adding to the expression. There is no /warrant for it. The testator was aware of the expression ''floor'' as would be evident by the use of the expression ''floor'' in connection with other building in the same Will. Therefore, in the same Will, when he has used the expression ''top'' and has not used the expression ''top floor'', if the expression ''top floor'' means something different from the expression ''roof, then in my opinion, such a construction should not be made in respect of this clause of the Will. It was then contended that staircase in question had been given to the allottee of lot No. 3, so any curtailment of the right of ownership of the allottee of lot No. 3 should be strictly construed. It is true that it must be strictly construed, but it has to be borne in mind that there has been a curtailment and the testator intended to curtail the absolute right of the allottee of lot No. 3 to the complete enjoyment of the entirety of the property allotted by preserving certain rights of the user in respect of the staircase. The 1question> therefore, is to what extent such rights of the allottee of lot No. 3 have been curtailed. "Curtailment of rights of the allottee of lot No. 3 must be found from the language used by the testator and such language must be strictly construed. But the strict construction of the language used does not mean that the ordinary meaning of the words used by the testator should not be given effect %o, even if there is no contrary indication expressed in the context or from the document as a whole. It is, therefore, necessary to consider the other submissions made in this connection on behalf of the Plaintiff. It was contended that the expression ''staircase'' involved two ingredients, namely, stairs and case. It was contended that flights Nos. 8 and 9 of the stairs are not in the same case with the other flights of the stairs. Case was here used in the sense of a covered area. Flights Nos. 8 and 9 were in a different covered area. Reference was made to the evidence referred to hereinbefore as well as the model and the photographs. In that context it was contended that the expression ''top of the house'' must be construed to mean the top floor being the floor after flight No. 6.

Reliance was placed on the Oxford Dictionary (vol. II, 3rd ed., p. 1995.). It is true that the expression ''case'' has a peculiar meaning and read in that sense flights Nos. 8 and 9 are not in the same case. But, in view of the fact that the expression ''staircase'' has been used as one word read with the expression ''existing'', I think it would be too rigid a construction unwarranted by the tenor of the Will as a whole to conclude that by use of the expression ''slipcase'' the stairs composed upto flight No. 7 was intended to be meant and the expression did not include flights Nos. 8 and 9. It is also relevant to remember that if the expression ''staircase'' is read in that way, it would lead to an anomaly. A harmonious construction, therefore, is to read the expression ''staircase'', in view of the expression used and in the� context it has been used, to include flights Nos. 8 and 9. It was next contended on behalf of the Plaintiff that flights Nos. 7, 8 and 9 do not lead to the roof of the house in lot No. 2. It was urged that flight No. 7 led to a room or an ante-room belonging to lot No. 3. It was further urged that as one stepped out of flight No. 9, one got to the roof of the stairs and not to" the roof of lot No. 2. It was then urged that the roof of the stairs belonged to lot No. 3 and there was no reason to presume that the testator intended to give to the allottee of lot No. 2 any access to the roof of the stairs. It is, however, difficult to accept the position that flight No. 7 lead to a room or an ante-room. The landing of the flight No. 7 is an extended area. It has a door also and a window. According to the witness of the Plaintiff Sri P. C. Chatterjee, in answers to Qs. 49 to 59 of his evidence, the expressions ''covered landing space'' and ''verandah'' can be used inter-changeable and it is difficult to distinguish them merely from the expressions used. Looking at the photographs, it seems to me, it would not be correct to describe covered landing space as a room or an ante-room. Therefore, flight No. 7 does not lead to a room or an ante-room as contended by the Plaintiff. The other point is that after flight No. 9 one steps into the roof of the stairs. The relevant clause in the Will has stated that the existing staircase would be used as a common staircase. Therefore, in one sense, roof of the staircase forms part of this staircase, specially so if access over that roof is necessary to lead to a point for the access to which the right of common user in the staircase was being ensured. In that context it is not possible to say that flight No. 9 does not lead to the roof of the house of lot No. 2.

In the premises, I answer issue No. 1 by saying that by the common staircase the testator intended the flights including flights Nos. 7, 8 and 9 leading to the roof of lot No. 2. The answer to issue No. 2 is also in the affirmative. The issue No. 3 is answered > in the negative.

Issues 4 (a), (b) & (c)

On these issues reliance was placed on the evidence of Arun Kumar Boral to his answers to Qs. 53, 76, 77, 246, 247, 269, 274 and on, the answers given by Sri Shyamapada Chatterjee to Qs. 27-30, 47, 39, 54, 55, 62, 65, 56, 50 and 72 and also to the answers given by Sri Subir Kumar Chatterjee to Qs. 40, 85, 86, 230, 238, 239, 240, 241 as well as to Q. 27. I, however, do not think, it would be necessary for me to discuss in detail the evidence on this point. The main position seems to be that the testator died in January 1946. Probate was granted to his Will on April 16, 1946. Thereafter, assent was given by the executors on May 30, 1947, after which the separate enjoyment by the allottees of lots Nos. 2 and 3 of the two separate lots started. The Plaintiff, Arun Kumar Boral, purchased lot No. 3 on October 17, 1958. Reading the evidence, it appears to me that, whatever might have been the position prior to the purchase by Arun Kumar Boral, trouble started soon after the purchase by Arun Kumar Boral. The City Civil Court suit was filed by the Plaintiff in 1963, a criminal complaint was lodged in 1966. In this connection reference may be made to the answers given by Arun Kumar Boral to Qs. 53, 76, 77 and 269 of his evidence. I am, therefore, of the opinion that in view of the facts mentioned hereinbefore it cannot be said that the Defendant has been able to establish that he has without interruption peacefully and openly and as of right enjoyed access over the staircase or over the disputed portions of the staircase for twenty years. Therefore, issue No. 4(a) is answered by saying the Defendant has not been able to establish any right of way by user which gives him an enforceable right. Issues Nos. 4(b) & (c) also are answered in the negative.

Issue 5:

In view of the fact that the Plaintiff filed a title suit being Title Suit No. 688 of 1963 in the City Civil Court of Calcutta for partition of the staircase, it was contended that the present Originating Summons was barred by res judicata or by principles analogous thereto. In Ex. E, which is the brief containing documents there is the plaint filed in the Title Suit No. 688 of 1963. The present Plaintiff filed that suit against the present Defendant along with Sm. Annapurna Pandit and Sri Shyamapada Chatterjee. It was contended on behalf of the Defendant that in the said suit partition had been claimed of the staircase in its entirety, including flights Nos. 7, 8 and 9. The Court has, however, decreed that it was not convenient to partition the said staircase. Therefore, it was contended that it had been accepted that the said staircase in its entirety was a common staircase and, as such, it could not be contended by the Plaintiff now that certain flights of the said staircase were not part of the said common staircase. In that suit the Defendant filed N a written statement and also made an application u/s 4 of the Partition Act to pre-empt the right title and interest of the Plaintiff in respect of the premises purchased by the Plaintiff. By a judgment delivered on November 25,1965, the learned Judge, constituting the Eighth Bench of the City Civil Court dismissed the suit. He came to the conclusion that the staircase in question was not capable of being partitioned. He also held that the entire property purchased by the Plaintiff was- not the subject-matter of the suit before him and, as such, Section 4 of the Partition Act had no application. He, therefore, dismissed the claim for pre-emption. On the question of pre-emption the Defendant has filed an appeal before this Court and the appeal is pending. At least this is what appeared from the evidence. In evidence, Sri Arun Kumar Boral, the Plaintiff herein, in answer to Q. 268 had stated that he had preferred no appeal from the said judgment in� Title Suit No. 688 of 1963. At the stage of the argument, however, it was contended before me that an appeal had in fact been preferred and was pending in this Court. The original records of this Court were produced, and I find an appeal was filed on January 30, 1966, by Sri Arun Kumar Boral being the appeal F.A. tender No. 163 of 1966. In view of the fact that the original records of this Court indicate that an appeal has in fact been filed, I am of the opinion, I should take judicial notice of that fact in spite of evidence to the contrary given by the Plaintiff himself. On the question of res judicata several contentions were urged. It was contended on behalf of the Plaintiff that, on a proper reading of the plaint, the flights Nos. 8 and 9 were not the subject-matter of the prior suit. Evidence was also adduced on the question as to what was intended to be meant by the pleadings in that suit. It was contended on behalf of the Defendant that the matter directly and substantially in issue in the City Civil Court was the claim and the right to partition of the staircase including flights Nos. 7, 8 and 9. It was, on the other hand, urged that it would be apparent from plaint and judgment that the questions about the right of parties in respect of flights Nos. 7, 8 and 9 were not the subject-matter. According to the Plaintiff, these were not directly or substantially in issue and were also not matters which might and ought to have been made either grounds of defence or attack in the previous suit. It was then urged oh behalf of the Plaintiff that the City Civil Court would have no jurisdiction to entertain and try the Originating Summons and, as such, there was no question of applying principles of res judicata and/or principles analogous thereto. On the other hand, it was contended by the Defendant that the subject-matter of the former suit was substantially and directly the same, and reliance was placed on the plaint filed in the City Civil Court as well as the evidence in this Originating Summons on the scope '' of the- proceedings before the City Civil Court. Counsel for the Defendant referred to expl. IV of Section 11 of the CPC and drew my attention to certain decisions. Counsel for the Defendant urged that the basis of the previous claim in the former suit as well as the basis of the decision in the former suit was that the entirety of the staircase was a joint property. The rival contentions of the parties on this point would have required serious consideration because the fact that the City, Civil Court would have no jurisdiction to grant relief�s claimed in this Originating Summons would have been no bar to the application of the principles of res judicata and/or principles analogous thereto. Reliance may be placed for this proposition on the decision of the Supreme Court in the case of Gulabchand Chhotalal Parikh Vs. State of Bombay (Now Gujarat), and the decision of the Supreme Court in the case of Union of India (UOI) Vs. Nanak Singh, . But I do not decide this controversy because of the fact that appeals have been preferred from the judgment and the decree of the City Civil Court both by the Plaintiff Arun Kumar Boral as well as by the Defendant Nirmal Chandra Mukherjee, as mentioned hereinbefore. Application of res judicata and/or principles analogous thereto depends upon the finality of the decision in the former suit. Decision from which an appeal lies and has indeed been preferred is not final between the parties so as to form res judicata. Reliance may be placed for this principles on the decision of the Privy Council in the case of S.P.A. Annarnalay Chelty v. B.A. Thornhil 36 C.W.N. In that view of the matter the issue No. 5 must be answered in the negative.

Issue 6:

This issue is directed towards the consideration of the question whether this Court has jurisdiction to entertain the present proceedings. In para. 17 of the affidavit of Arun Kumar Boral in support of this Originating Summons it has been asserted that this suit was valued at Rs. 20,000 and, therefore, this Court had jurisdiction to entertain the same. In para. 17 of the affidavit of Nirmal Chandra Mukherjee affirmed on September 25, 1967, it has been asserted that this Court had no jurisdiction because the value of the subject-matter of the suit did not exceed Rs. 10,000. It has been further stated that the staircase was valued by the Plaintiff himself in the Title Suit No. 688 of 1963 of the City Civil Court at Rs. 2,000. It was asserted on behalf of the Defendant that the suit being in respect of the same subject-matter the value could not be more. Counsel for the Plaintiff drew my attention to the answer given by Arun Kumar Boral in Q. 314 of his evidence. Reliance was also placed on the provision of the City Civil Court Act and Suit Valuation Act. Learned Counsel for the Defendant referred me to the decision in the case of Raijani Kanta Bag v. Rajabala Dasi 24 C.W.N. 76 and to the decision in the case of Katamberi Chuzhali Bhagavati Amma''s owner, Uralan and Manager Samanthan Karakkattitathil Kammaran Nambiar (since deceased) and Another Vs. Valia Ramunni, Karnavan and Manager now the Santikkaran of Parachinikkatavath Mattappurakkal Muthappan Deity, styled as "Matayan" and Others, . In my opinion, the proper way to determine the question is to see what is being asked in this Originating Summons. Viewed from that point of view it appears to me that what is being asked in this Originating Summons is not merely the determination of the question of the rights of the parties in certain flights of the staircase or in the entirety of the staircase, but what is being asked here is the determination of the question of the rights of respective allottees of lots Nos. 2 and 3. Upon the determination of the rights of the respective allottees of lot No. 2 and lot No. 3 the value of the entire allotments of lot No. 2 and lot No. 3 would depend. The evidence on record show that in 1958 Arun Kumar Boral purchased lot No. 3 for a sum of Rs. 35,000. It is the cloud over this property that is being sought to be clarified by this Originating Summons. Therefore, I am of the opinion that this Originating Summons is in respect of a subject-matter exceeding in value the sum of Rs. 10,000 and, as such, this Court has jurisdiction to entertain the summons. Issue No. 6 is, therefore, answered in the affirmative.

Issue 7:

In view of the answers given by me to the different issues, it is now necessary to deal with the specific questions raised in this summons. My answers to the questions are as follows:

(a) Yes. The Defendant as the owner of lot No. 2 has the right to use the flights Nos. 7, 8 and 9 for going to the roof of the house of lot No. 2.

(b) Yes. The Defendant has the right to use the said staircase from the balcony to the roof of the house including flights Nos. 7, 8 and 9.

(c) In the Will no obligation has been cast upon the allottee of lot No. 2 to contribute anything either for the repairs or maintenance of the said staircase.

The said staircase is the property of the allottee of lot No. 3. Allottee of lot No. 2 has the right of user as a right of way. Indeed no argument was advanced before me on this question. This question, therefore, is answered in the negative. In the facts and circumstances of this case, I direct that each party should pay and bear its own costs to be taxed as a defended suit as against their respective own clients. Certified for two counsel.