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Sm. Parul Bala Roy Vs. Srinibash Chowmal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Case NumberAppeal No. 11 of 1946
Judge
Reported inAIR1952Cal364
ActsSpecific Relief Act, 1877 - Sections 3 and 54
AppellantSm. Parul Bala Roy
RespondentSrinibash Chowmal and ors.
Appellant AdvocateBansorilal Sarkar, ; Naresh Chandra Sen Gupta and ; Provash Chandra Basu, Advs.
Respondent AdvocateHiralal Chakravarty, ; Niranjan Roy Choudhury and ;Chandidas Roy Choudhury, Advs.
DispositionAppeal dismissed
Cases ReferredPiggott v. Stratton
Excerpt:
- .....showed for the purpose of the building the frontage of the plot to be on the northern road. an open space was left at the farthest end opposite to this road & at the back of the proposed building, that is to say, the open land was shown to be the southern part of plot no. 381. this open space was 87ft. & odd wide from north to south.2. after obtaining this sanction, the appellant sold the southern portion of plot no. 381 to the respondents. the area so sold was 2 cottas 2 chattaks 8 sq. ft. & it was 33 ft. north to south, with the result that the open back space which was retained by the vendor at the back of her proposed building on her own site was 4 ft. wide. we are using these figures for the purpose of convenience, for in fact the open space so retained by the vendor was 4 ft......
Judgment:

1. In 1938, the appellant Parul Bala Roy Choudhury purchased from the Calcutta Improvement Trust a plot of land No. 881 of Scheme No. 33 covering an area of 5 cottas 13 chataks & 25 sq. ft. While she was the owner of the whole of the plot, she submitted a building plan for sanction by the Calcutta Corporation. The plan was sanctioned by the Corporation on 15-5-1939, This plot viz: 381 is a corner plot abutting on two 40ft. wide streets made by the Calcutta Improvement Trust. The greater length of the plot is north to south. One face of the plot, namely, the northern one, abuts on one 40 ft. road & west face of the plot on the other 40ft. road. The plan which was submitted for sanction & which was sanctioned by the Corporation showed for the purpose of the building the frontage of the plot to be on the northern road. An open space was left at the farthest end opposite to this road & at the back of the proposed building, that is to say, the open land was shown to be the southern part of plot No. 381. This open space was 87ft. & odd wide from north to south.

2. After obtaining this sanction, the appellant sold the southern portion of plot No. 381 to the respondents. The area so sold was 2 cottas 2 chattaks 8 sq. ft. & it was 33 ft. north to south, with the result that the open back space which was retained by the vendor at the back of her proposed building on her own site was 4 ft. wide. We are using these figures for the purpose of convenience, for in fact the open space so retained by the vendor was 4 ft. wide, at some places & 4ft. 6 inches in others & the plot sold to the respondents was 33 ft. wide at some places & 33 ft. 5 inches at other places. But that is not very material. We only mention these details in order to be more accurate.

3. After the sale, the respondents submitted a plan for building upon the site so purchased by them. The Corporation refused to sanction that plan, one of the grounds being that the building proposed by the respondents had utilised a portion of the open ground, a portion of which had been shown in the plan sanctioned in favour of the appellant on 15 5-1939, to be the back space of her proposed building.

4. For the purposes of understanding the position, we will have to notice some of the Rules mentioned in Sch- XVII of the Calcutta Municipal Act in [3] of 1923. Section 319 of the said Act enacts that no piece of land shall be used as a site for the erection of a new building, & no new building shall be erected, otherwise than in accordance with the provisions of that Chapter & of Sch. XVII & any orders, rules or by-laws made under the Act, relating to the use of building sites or the erection of new building, as the case may be. Schedule XVII is a part of the Act itself. The relevant rules for regulating 'domestic houses', as defined in Section 3 of the Act are Rules 30, 32 & 36. We may say that both the building plans, the plan of the appellant which had already been sanctioned, the plan submitted by the respondents, the sanction of which has been refused by the Corporation, are for raising dwelling houses, that is to say, a species of domestic houses.

5. Rule 32 relates to open side spaces. It says that certain amount of open space must be kept at the sides of buildings. Ordinarily, it ought to be 6 ft. wide for each building, but if there is an open space within the site of the neighboring building, 2 or more ft. in width adjoining to that relevant side of the proposed building, then the open space can be reduced to 4ft. wide. According to this rule, if there had not been anything else in this case, the respondents would have had to keep on the facts of this case, an open side space of only 4ft. wide on the northern part of their site.

6. Rule 30 deals with the open back space. First of all, a back space is defined to be the space within the site of the proposed building opposite to the street on which the side abuts, If the site abuts on two streets, that is to say, a corner plot, the front of the building would be taken to be on that street which is wider of the two, but if the two streets are of equal width, the owner would have the option of treating any one of these streets to be on the frontage of his building. From the building plan submitted by the appellant & sanctioned by the Municipality on 15 s 1939, it is quite clear that she, the appellant, treated the northern street to be the street forming the frontage of her building. According to the Rule, the back space would be opposite that street, that is to say, the open space immediately to the south of her proposed building, & the plan, which the appellant submitted to the Municipality & which had been sanctioned in fact shows that to be the back space of her proposed building. By reason of the sale, only 4ft. open space immediately to the south of the building proposed to be raised by the applt. is retained by her & the rest of the open space. namely, the southern portion of Plot No. 381 'covering an area of 2 cottas 2 chattaks 8 sq. ft. & which has a road frontage of 33ft. only on the western side, has been sold to the respondents. The back space is calculated on the basis of angular measurement.' The height of the building proposed by the appellant & as sanctioned by the Corporation is 36 ft. It is to be a three storied one on back portion, that is to say, on the southern side. According to the angular measurement, a back space of about 14 ft. 5 inches has to be kept open according to Rule 30 & that back space must be included within the site of the building which is proposed to be raised. At the time when the building plan was sanctioned, the back space left was more than 14ft. 5 inches wide, within the building site, because at that time the appellant was the owner of the whole of the Plot No. 381 & the open spice at the back of her proposed building was much more than 14ft. 5 inches, in fact it was something like 37ft. By the sale to the respondents, the appellant remains the owner of only a strip of land 4ft. wide at the back of her proposed building. By reason of the provisions of Rule 36, a further 10ft. or so of the land which has been included in the conveyance in favour of the respondents cannot be utilised for building by the respondents. That is the effect of Rule 36 & apparently proceeding upon this Rule the Municipality refused the sanction of the plan submitted by the respondents, although they had kept a side space of 4ft. open at the northern side of their proposed building & within their building site.

7. After the refusal of their building plan by the Corporation of Calcutta the respondents instituted this suit for a permanent injunction to restrain the deft, appellant from constructing any structures upon an additional space of 10ft. wide on the southern portion of the land retained by her, so as to leave a strip of 14ft. 5 inches open as the back, space of her building within her own site, that is to say, within the plot of which she is the owner after she had sold the southern part of Plot No. 881 to the puffs. respondents by the conveyance dated 31-8-1940. In the alternative, their case was that if they are not entitled in law to get a permanent injunction, they may be awarded compensation & they assessed the compensation at the figure of Rs. 1900.

8. The learned Munsiff dismissed the suit. On appeal the learned Additional Dist. J. reversed that decision & held that the plffs, respondents were entitled to a perpetual injunction. He held that damages would not afford adequate compensation & the plffs respondents were entitled to perpetual injunction, as in his opinion the case came within Section 54, Specific Relief Act. He gave the injunction in this form, namely, that the deft, may be restrained permanently from utilising any portion of the land sold by her to the plffs. for the purpose of open space under the Corporation Building Rules & from building on her land in such a way as would necessitate the utilisation of any portion of the land sold for the purpose of the Corporation Building Rules., The Building Rules to which he apparently refers here are the Building Rules in respect of domestic houses.

9. Against this judgment & decree of the learned Dist. J. the deft, preferred a second appeal which was heard by our learned brother Sharpe J. sitting singly. He affirmed the decree of the learned Dist. J., but at the same time gave leave to appeal under Clause 15 of the Letters Patent. The deft, appellant has accordingly preferred this appeal before us.

10. Before we deal with the question as to whether the case comes under 8. 54, Specific Relief Acr, it is necessary to notice some findings of fact which were binding on our learned brother Sharpe J. in second appeal & which are binding on us. Those findings are as follows :

(i) That the respondents had no notice of the fact that the deft, had utilised a portion of the land which she subsequently sold to them as back space for the purpose of her own building.

(ii) That they, the plffs., did not know any fact which would lead them to make enquiries in the matter & therefore they could not be fixed with constructive notice of the fact that a portion included in their conveyance by the deft, had been utilised by her as the back space of her proposed building.

(iii) That the sale by the appellant to the respondents was made after the deft, had raised the foundation in the southern part of her building according to the sanctioned plan. But the learned Dist. J. observes that that did not enable the plaintiffs, to know, or could not have led them to believe that a portion of the land sold to them by the appellant had in fact been utilised as back space in the plan submitted by the appellant & which had been sanctioned by the Corporation.

11. Before we deal with the question of law, it is necessary that we should notice some of the terms of the conveyance. The purchasers were put under some restriction. There is specific covenant in the conveyance that the purchasers, the pltfs. would not be able to cover that place, a strip of land 4ft. wide immediately to the south of & abutting on the southern portion of the plot retained by the vendor. The conveyance also contained the usual terms about title & stated that the purchasers would peacefully & quietly enjoy the premises sold to them.

12. The Judicial Committee of the P. C. in the case of Tituram Mukherjee v. Cohen, 33 Cal. 203, laid down the proposition in the concluding portion of the judgment that the law of perpetual injunction is codified in India. That passage in the judgment of the Judicial Committee has been taken to mean that for the purposes of seeing whether any perpetual injunction can be granted or not, it is not legitimate in India to go outside the provisions of chap. 9 & chap. 10 of the Specific Relief Act. In the case of Ramkissen v. Pooran Mull, 47 Cal. 733:31 c. L. J. 259, a Division Bench of this court, considered the provisions of chaps. 9 and 10 in detail. They pointed out that permanent, injunction can be granted at the discretion of the. Court: That is Section 52, the first section in chap. 9 Dealing with Section 53, they pointed out that the second para, did not deal with the question under what circumstances an injunction is to be given That para, only defines the form of the injunction. The circumstances, in which a perpetual injunction can be given they pointed out, are contained in Ss 54 & 57, Specific Relief Act & the cases, in which no injunction can be granted are mentioned in Section 56 of the Act.

12a. Section 54, first para, says that subject to the provisions contained in or referred to by that Chapter, that is to say, chap. 10, perpetual injunction may be granted to prevent the breach of an obligation existing in favour of the appellant whether expressly or by implication This para shows that the cases of breach of an obligation are contemplated by this section. Section 3, Specific Relief Act gives a wide import to the word' 'obligation.' It means any duty enforceable by law. It is not confined to contractual obligations only. An injunction founded on torts, on breach of trust, or on the breach of any other legal duty can be granted, provided the other circumstances are present. Such being the scope of para. 1 of Section 54 we are now to consider the other two paras.

13. The second para, defines the condition under which an injunction can be granted where the obligation, the breach of which is made the foundation for a prayer for injunction, is a contractual obligation. In those cases, in granting injunction the Court has to be guided by the rules & previsions contained in chap. II of the Act which deals with specific performance of contract.

14. The third para, deals with the breach of obligations other than obligations arising under a contract. In order to entitle the plaintiff to obtain an injunction, there must be an invasion or threatened invasion of the pltf's right to, or enjoyment of property. The word 'invade' indicates the breach of an obligation on the part of the deft., that is to say of a duty on the part of the deft, which is recognised by law, not merely a moral or religious duty. Where the breach or the threatened breach of an obligation other than a contractual obligation to the pltff. is made the subject-matter for a suit for perpetual injunction, the pltf. can only get an injunction not merely by proving the legal duty on the part of the deft, towards the plff., which has been broken or threatened with breach but also by proving any one of the conditions mentioned in Clauses (a) to (c) to exist. In this cape, therefore, the first question which will have to be considered is what is the nature of the legal duty which the appellant owed to the pltfs.

15. Having regard to the terms of the conveyance, it is very difficult to say that the case is & case of breach of an obligation arising from contract. The contract puts a restriction upon the purchasers not to build on a certain area & if the purchasers attempted to build on that area, the case would have come under Para. 2 of that section. But here there was no express contract on the part of the vandor that she would not interfere by her act or otherwise with the pltfs. that is to say, the purchasers' raising a building on any portion of their lands beyond the 4ft. open space, that they were to keep open for the benefit of the vendor, or to keep the requisite open back space on the site she retained. From the restrictive covenant placed on the purchasers not to build on that area, it would be difficult to raise by implication a covenant of the nature we have spoken to above. In order, therefore, that the pltfs. might be entitled to ask for an injunction, the case must be brought within Para. 3 of Section 54.

16. No doubt, the enjoyment of the land which has been purchased by the pltfs. is curtailed by reason of the Corporation Building Rules, namely, E. 36 of sch. 17, by the fact that the deft, appellant has utilised a portion of the laud sold to the plaintiffs as the back space of her building. But simply because the enjoyment of the pltf. is less beneficial that would entitle them to obtain an injunction unless they can show that there was a legal duty on the part of the deft, towards them & that by non-performance of that legal |duty the enjoyment of their property is materially affected. We have already stated that it would be difficult to bring the case within Para, a of Section 54 that there was a breach or a threatened breach of an obligation on the part of the appellant towards the reaps, arising from contract. But we think that the pltfs. have brought their case within Para. 3, that is to say, the deft, is threatening to invade the plffs' enjoyment of the property by reason of a breach of her obligation towards them, an obligation resting not on contract but on other factors. We have already stated that by reason of the deft, showing the back ,3pace as she did in her plan, the enjoyment of their property by the plff. are materially affected, for, by reason of Rule 36 they cannot build up to 4 ft. of the southern boundary line of the site retained by the appellant after her sale. But we have already stated that something more is required.

17. It is quite apparent that the appellant knew that the plffs. were making the purchase for the purpose of building a house there. The fact is patent, because the land which was purchased had been developed by the Improvement Trust for the purposes of providing building sites. The area so purchased was small, 2 cottas & odd. In fact, it has been admitted before us by the-learned Advocate appearing for the appellant, that there cannot be any question that the plffs, made the purchase from the deft, for the purpose of having a dwelling house there & that purpose was known to the deft, at the date of the sale. Secondly, having regard to the fact that the appellant hid made her plan in that manner & got it sanctioned, she had a legal duty to disclose to the plff. at the time when she offered the property to sale that she had shown & utilised a portion of the property proposed to be sold by her as the back space of her proposed building. It was thus a case where the vendor knew that there was a. latent defect in the property to be sold which was shown to the vendor but not known to the purchasers, & the finding is that the purchasers could not with due diligence discover the defect. That being the position, as we have said, there was a legal duty on the part of the appellant to disclose to the purchasers, the respondents, the fact that she had shown a portion of the land; which she proposed to sell, as the back space oft her proposed building in the plan which she submitted to the Municipality & which had been sanctioned. Coupled with this fact, the covenant in the conveyance given by the vendor, that the purchasers were to enjoy the land conveyed to them, except with the restriction specifically imposed upon them, would lead to the inference that a representation was made, though not in express terms, but by implication, that the purchasers would be free to build upon their land 'in such manner as the other Municipal Building Regulations might allow them to do otherwise, & that she had not done any act which would put them under an extraordinary burden, or special disability in respect of the building.

18. That being the position, in law there was a duty on the part of the appellant to make good that representation to the plffs. & a failure to do so on her part, or acting contrary to that representation would, in our opinion, be the breach of a legal duty which the appellant owed to the plffs. & which can, therefore, be made the foundation for a prayer for injunction. The injunction can be granted provided that the case comes within any of the Clauses (a) to (c) mentioned in Section 54, Specific Relief Act. This is the principle on which the case of Piggott v. Stratton, (1859) 1 D. F. & J. 33, proceeds, a case which has been referred to in, the judgment of the learned Additional Dist. J. Although Knight Bruoe L. J. went upon another ground in supporting the perpetual injunction given in that case, Lord Campbell L. C. put the case clearly on the principle that a representation made by a vendor or a lessor creates a legal duty on his part to make good that representation & that if he acts or threatens to act contrary to that representation, he breaks an obligation, that is to Say, a legal duty towards the purchaser to whom he had made that representation, & a perpetual injunction can be granted.

19. The next question, therefore, is whether the case comes, within any of the clauses which we have noticed. In our opinion, it comes under Clause (c) & it is apparently on that clause that our learned brother Sharpe J.'s judgment proceeds. There he pointed out that the area sold by the deft, to the plffs. had a road frontage of 33 ft from north to south & that under the terms of the covenant, they, the plffs. had to keep a space of 4 ft. wide at the northern extremity of their site. By reason of the act of the appellant in getting her building plan sanctioned in the manner she had done, an additional space of 6 or 7 ft. on this side had to be left vacant, in addition to what they would have to keep as open space for their building on other sides for the purpose of complying with other building rules given in Sch. xvii. In these circumstances, the plffs. would not have a decent, or a comfortable building within the plot which they had purchased for the purpose of making a house. Under these circumstances, pecuniary compensation would not afford adequate relief to the plffs.

20. We have stated the form in which the injunction has been given by the learned Additional Dist. J. The object of the injunction as has been expressly in the ordering portion of the judgment of the Additional Dist. J., is to put a restraint upon the deft., so that she may not utilise any portion of the land sold by her to the plffs. for the purpose of open space under the Corporation Building Rules & from building on her land that is to say, the land retained by her, in such a way as would necessitate the utilisation of any portion of the land sold to the plffs. for the purpose of the Corporation Building Rules. In order to carry out the object we think, that the deft, should be altogether restrained from building on the basis of her plan of which she had got sanction from the Corporation on 15 5-1939, so that she may if she likes to raise a building, be compelled, to submit a revised plan for sanction treating the site retained by her, which we understand has been numbered now as 51A Lake Place, - & nothing beyond it, to be her building site. Therefore, the injunction would in this form :

'That the deft, is restrained from mating or continuing any structures in accordance with the plan already sanctioned in her favour by the Corporation of Calcutta on 15-5-1939.'

Although it is not necessary to reiterate we make it quite clear that it is open to the deft, to submit a revised plan to the Corporation of Calcutta in respect of the building which she may propose to raise upon the site which is her property now.

21. The result is that this appeal, subject to the modification of the form of the injunction, is dismissed with costs.


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