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Nrimal Kumar Moulik and ors. Vs. Sm. Champabala Roy and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 439 of 1965
Judge
Reported inAIR1971Cal407,76CWN556
ActsEvidence Act, 1872 - Section 115
AppellantNrimal Kumar Moulik and ors.
RespondentSm. Champabala Roy and ors.
Appellant AdvocateMahindranath Ghosh and ;Jamini Kumar Banerjee, Advs.
Respondent AdvocateHariprasanna Mukherji, ;Bhupendra Kumar Panda and ;Jayindranath Nanda, Advs.
DispositionAppeal allowed
Excerpt:
- .....lands mentioned above along with other adjacent lands. her house is on the contiguous north of the suit land which was an adjunct of her residence. plot no. 1159 is situated on the west of the suit land, also belonging to the plaintiff. she planned a residential colony known as 'lakshminarayan colony' on her lands mentioned above and in the plan prepared by her for the purpose she loosely described the suit land as a park, though it was never intended to be a park in the true sense. the plaintiff had the desire to keep this land vacant for the purpose of sufficient air and light for her own residence and also for accommodation for ceremonial occasions usually held in the presence of sri sri lakshminarayan bigraha till then in her house and for other religious occasions. the plaintiff.....
Judgment:

Salil Kumar Datta, J.

1. This is an appeal by defendants Nos. 1 to 11 against a judgment of concurrence decreeing the plaintiff's suit. The suit property is comprised in C. S. Plot No. 1158, khatian No. 152 Mouza Noapara. P.S. Barasat. The case of the plaintiff is that she is the owner of the lands mentioned above along with other adjacent lands. Her house is on the contiguous north of the suit land which was an adjunct of her residence. Plot No. 1159 is situated on the west of the suit land, also belonging to the plaintiff. She planned a residential colony known as 'Lakshminarayan colony' on her lands mentioned above and in the plan prepared by her for the purpose she loosely described the suit land as a Park, though it was never intended to be a Park in the true sense. The plaintiff had the desire to keep this land vacant for the purpose of sufficient air and light for her own residence and also for accommodation for ceremonial occasions usually held in the presence of Sri Sri Lakshminarayan Bigraha till then in her house and for other religious occasions. The plaintiff constructed pucca pathways running the four sides of the suit land. Defendants Nos. 1 to 17 were residents of the locality and they were putting forward false claim of easement, right of user of the suit land for themselves and on behalf of the local public. They also gave out that they would change the character of the land and convert it into a playground, place of exercise and to do other things calculated to thwart the exercise of the plaintiff's right of possession thereon. Actuated by that motive, they have been wrongfully attempting to dig earth, put goal-posts and such acts were resisted by the plaintiff. There were criminal proceedings in respect of the entire C. S. Plot No. 1158 of which the suit land was a part. There was an attachment order in the said proceedings, but that could not be enforced as it was against some of the defendants only and accordingly it became infructuous and proved abortive. The plaintiff denied that the defendants had any right of user in the suit land, and also denied that she made at any time any grant or dedication conferring such right of user or easement in favour of the defendants. In fact, some of the defendants had given an undertaking that if they required the land, they would obtain a permission from the plaintiff beforehand. The defendants, however, attempted to disturb the peaceful possession of the suit land of the plaintiff and accordingly, the plaintiff was constrained to file the instant suit praying for a declaration that the suit land was a private land of the plaintiff and also for a permanent injunction restraining the defendants from claiming any easement right, right of user or any right whatsoever in and over the suit land. The suit was instituted against the defendants in a representative capacity as selves and for and on behalf of the local public. Along with the plaint a plan of the suit land was attached which only showed the suit land and the plaintiff's house on the north.

2. The suit was contested by the defendants who filed a joint written statement. Their case was that the suit land was not within the compound of or adjunct to the plaintiff's house as claimed. They denied that the word 'Park' was written loosely and averred that it was written with full knowledge of its import and meaning. It was also pointed out that the suit land along with other adjoining lands were planned as a colony known as 'Lakshminarayan Colony' by the plaintiff and the lands on the west of the suit land were divided into small residential plots interspersed with roads and the suit land was shown in the plan which was prepared by the plaintiff as a Park. It was further stated that there were other lands in the colony which were shown in the plan as personal. The defendants' case was that in the plan the suit land was shown as a Park which was in effect a grant by the plaintiff for user by the people of the colony as place for walking, playground and holding meetings as also as place for recreation. The defendants were displaced persons and on the basis of representation that the suit land would be kept as a park as shown in the plan, the defendants purchased and took settlement of the colony plots at a considerable expense. The defendants thereafter have converted the colony into a beautiful township and the colony is also served by electricity and the suit land was since being used as a place of recreation and strolling by local public and also as a playground. The plaintiff illegally attempted to take possession of the suit land when the defendants opposed and criminal proceedings were started. The defendants claimed that the suit land, on the basis of a grant by the plaintiff, was a park and the people of the colony had the right to use the suit land for sports, recreations and meetings and the plaintiff was estopped from challenging the position.

3. The suit was tried on evidence before the learned Munsif and it was held on the materials on record that there was no grant of easement or user by the plaintiff. Further, it was held that at the time the easement is alleged to have been granted, there was no colony in existence. Regarding the defendants' contention that they had acquired a right of user or easement by estoppel, it was held that no one enjoyed the suit land as a park at the time the settlements or sales were made to the defendants as the park was not in existence at all and accordingly, there could be no estoppel in the said circumstances. As the contentions raised on behalf of the defendants were not accepted, the trial court granted a decree by giving declaration to the plaintiff that the suit land was her private land and the defendants were also permanently restrained from claiming any easement or right of user or any right whatsoever in the suit land.

4. An appeal was preferred therefrom by some of the defendants and the lower appellate court proceeded to examine whether there had been a grant of such right of user to the defendants and other persons of the locality and also whether the defendants had acquired a right by the doctrine of estoppel. The appellate court was of the opinion that the user of the word 'Park' in the plan was intentional as held by the learned Munsif, but there was no evidence to show the intention of the plaintiff to allow the people of the colony to use the suit land as a park. There was no recital in any of the documents in favour of the defendants that any grant of such easement right or right of user was made and accordingly, the lower appellate court held that there was no express grant in the circumstances. The appellate court also found that there could be no easement of necessity or acquisition of quasi-easement in respect of user of the suit land by the defendants as claimed. The appellate court also was of the opinion that there was no implied grant or oral grant in respect thereof by the plaintiff. In respect of the claim of acquisition of such right by estoppel by representation, it was held that such representation must be of existing fact, which was not so in this case, the park being non-existent at the time of settlement or sales. Upon these findings the lower appellate court dismissed the appeal. The present appeal is against the said decision by the said defendants.

5. Mr. Manindra Nath Ghose, the learned Advocate appearing for the appellants has contended that the plaintiff was barred by the principle of estoppel from claiming the suit land as her private land. He drew my attention to the plan of the colony which indicated clearly that the suit land was shown as a park therein and the same plans were attached to the sale deeds executed by the plaintiff to some of the defendants. There was another demarcated plot on the other side of the suit land which is shown in the said plan as personal. If the plaintiff wanted to retain this land as a private land it would have been shown as such. Mr. Ghose further contended that adjacent plots were sold or settled to the defendants as residential plots of the colony as shown in its plan which included the suit land. This plan clearly indicated that the said land was being and would be kept as a park and on the basis of such representation the defendants were induced to purchase or take settlement of the plots of the colony for valuable consideration. Accordingly, Mr. Ghose contended that in the circumstances there was a grant of user of the suit land by the plaintiff and further that the plaintiff was estopped from claiming this land as her private land after such grant and representation which was acted upon by the defendants to their detriment. Mr. H. P. Mukherjee, the learned Advocate appearing for the plaintiff respondent disputed the above contentions and submitted that in none of the sale or settlement deeds there was any recital showing that the instant plot was being or to be used as a vacant plot for the user of the defendants and the people of the locality. In the absence of such a recital the defendants were not entitled to claim any right of user and there was no misrepresentation at all or of any existing fact by the plaintiff to that effect nor was there any evidence of grant by the plaintiff.

6. There is no dispute that the colony was planned by the plaintiff on the basis of a plan annexed to the sale deeds of colony plots which indicated the amenities that would be available in the colony and on such basis different plots were sold out or settled to the defendants for their residential or other purposes. It will also be noticed that in none of the conveyances or leases any mention is made about user of the roads shown in the plan by the purchasers, lessees or the people of the locality. But nevertheless there is no dispute that such lands are being used as roads by the defendants and the people of the locality without any objection from the plaintiff. It could not be said that all roads were easements of necessity for all plots. Thus even in absence of any specific provision in the documents, there was a representation that such roads shown in the plan would be used by the people of the locality which obviously implied a grant therefor. If this is the position in respect of roads which has not been and cannot be disputed, on the same test it must be held that the plaintiff by showing the suit land as a park in the plan at the time of sale or settlement of the plots of the colony, also clearly induced her prospective purchasers or lessees that the suit land would remain as such a park and there would be grant of user of the land as such park. This is certainly a representation made by the plaintiff to the defendants inducing them to purchase or take the plots.

7. Estoppel, as is well known, is a rule of evidence which prevents one party from denying the existence of a fact which he represented as existing and upon which representation another person has been induced to act to his detriment. As we have already said that the plaintiff undoubtedly was the owner of lands of the colony and it is also her case that a colony was planned thereon and a plan of the colony is also annexed to several kobalas Exts. C series in favour of the defendants. There can be no doubt that the defendants were induced to purchase or take on lease the plots on the basis of the plan of the colony and if the colony showed a park it is also obvious that the defendants must have considered before taking a plot the amenities that, would be available in the colony. It is not necessary that there must be recital about user of the park in the kobalas or in the various settlement deeds of the defendants. We have already said that there is even no provision for user of the roads by the people of the locality, but even so, the user of such roads has not been disputed or obstructed by the plaintiff as she cannot dp so. Therefore, mere absence of recital in the kobalas about user of the park, does not indicate that it was never meant to be a park, though it was shown as such by the plaintiff in the plan. I am, therefore, of the opinion that the plaintiff is barred by estoppel from having a declaration from the court that the instant land was her private land and she could dp whatever she likes in respect of the suit land and prevent other I people from entering into the said land, if such estoppel is not otherwise barred by any law.

8. The courts below have rightly held that there could be no estoppel in respect of a fact which did not exist, for the law of estoppel must relate to an existing fact. If that fact is not there, mere future promise or promise to do something in some subsequent date will not create any estoppel in favour of the party claiming it. According to the courts below as it is found that there was no existing fact, namely, existence of a park, there could be no estoppel. Admittedly, the roads were not in existence at that point of time and therefore, even in respect of roads the defendants would be estopped from their user on this contention. In respect of the park there is no denying that the land thereof belonged to the plaintiff at the material time. It may be that it was not so demarcated or developed as a park. What was represented was in respect of a colony which was in process of formation at about that time and the land demarcated was represented to be used as a Park. If that was the position then there could be no dispute that the park even as undeveloped land did exist at the time when the sales or settlements were made to the defendants only awaiting demarcation and developments. I, therefore, do not think that the courts below were correct in thinking that the park as undeveloped land did not exist at that time and therefore, no right would accrue. On the other hand, the representation was that the roads as shown in the plan would be used as roads. So was also the park which was to be kept as such in future. I, therefore, in disagreement with the courts below hold that the plaintiff is barred by estoppel from raising the present action.

9. The next point which the courts below have considered is whether there was any grant of user bv the plaintiff to the defendants. It is, therefore, to be seen whether there has been any express grant or implied grant of such right by the plaintiff to the defendants. I agree with the findings of the courts below that there has been no express grant of user of the suit land by the plaintiff. But we shall have to consider whether there has been an implied grant. There is no dispute that no document in writing is required for grant of user of any land As I have already stated, the plan was the basis of the representation which was placed before the defendants, the prospective purchasers or lessees, and in that plan the suit land was shown as park. There were also roads which are also shown in the said plan. It would obviously represent the grant of user of the roads as also user of the suit land as a park, even though there was no express grant or dedication. As soon as the defendants acted on the said representation by purchasing or taking lease of the plots for consideration the grant implicit in the representation came in existence. After sale and settlement of colony plots it is too late for the plaintiff now to turn round and say that she never intended to make any grant or dedication for the user of the suit land to the defendants or the people of the locality. Accordingly, I hold, in disagreement with the courts below, that there was implied grant by the plaintiff to the defendants and the people of the locality for user of the suit land as a park.

10. Mr. H.P. Mukherji has next contended that the word 'Park' has several meanings. It is sometimes said to be a piece of ground comprising woodland and pasture; sometimes it is adjunct to a holding used for keeping beasts of chases or a tract of land surrounding a mansion kept as a pleasure ground. In view of the ambiguity of the meaning of 'park', Mr. Mukherjee contended, there could not be a specific or certain grant of user as contended by the defendants. In the Chambers's 20th Century Dictionary (1952 Edition) 'park' has also been defined as a piece of ground for public recreation. In considering the terminological meaning of 'park', we shall have to take the meaning which is associated with a township. There 'park' means a space kept open for the public to assemble, to stroll at their pleasure and to use it as a place of games or recreation. The plaintiff in planning the colony also made provision for the park in the literal sense in which It is used in case of a park in a township. There is. therefore, no uncertainty in the meaning of the word 'park' in so far as the parties to the suit are concerned This contention of Mr. Mukheriee ha3 therefore no substance.

11. In the result, this appeal must succeed and is allowed with costs, the judgments and decrees of the courts below are set aside and the plaintiff's suit is dismissed.


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