Bombay High Court
Real Estate Agency vs Model Co-Operative Housing Society ... on 26 April, 1990
Equivalent citations: 1990(3)BOMCR534
Author: S.P. Kurdukar
Bench: S.P. Kurdukar
JUDGMENT C. Mookerjee, C.J.
1. Model Co-operative Housing Society, Respondent No. 1 herein had originally instituted in the Court of the District & Sessions Judge, Goa, Daman and Diu at Panaji a suit against the present Appellant Real Estate Agency as Defendant No. 9 and also against other Defendants-Respondents inter alia with the prayers that the Defendants be directed to acknowledge that in La Campala residential colony there existed a central open space measuring 19,250 square metres as described in the plaint and that the plaintiff's who were owners of Plot No. B-1 to B-5 of the said colony had rights of easement of light and ventilation and play ground over the said central open space measuring 19,250 square metres. The plaintiff's had further prayed for permanent injunction to restrain the defendants 1 to 8 from interfering with in any manner with the right of the palintiffs over the said central open space and for restraining the Defendant No. 9 from reducing in any manner the area of the central open space and/or from alienating any part thereof. The plaintiffs had also prayed for injunction upon the defendant Nos. 10 and 11 from giving any licence and/ or permission to Defendant No. 9 to reduce the area of central open space by sub-dividing the same into plots for construction etc.
2. Defendant Nos. 1, 2, 3, 4, 5, 6, 7 and 8 did not contest the suit. Defendant No. 5 had appeared in person. Defendant No. 9, the present Appellant, who had taken the land from Defendant Nos. 1 to 8 for developing the same into a residential colony had mainly contested the suit. Defendant No. 10 had also appeared in the trial Court. The suit was subsequently transferred to the High Court, Goa Bench, Gadgil, J., as he then was, by his judgement dated 29th April, 1983 ordered and decreed as follows :
"It is hereby declared that the plaintiff has a right to take air and light from the entire central open space in question admeasuring 19,250 square metres and to use it as a playground and recreation place, Defendant Nos. 1 to 9 are permanently restrained from interfering with the above right of the plaintiff by reducing the area of the central open space or in any other manner, Defendants Nos. 10 and 11 are restrained from giving permission to Defendants Nos. 1 to 9 or any one or more of them to develop the property so as to reduce the area of the said central open space. Defendant No. 9 should pay plaintiff's costs of the suit and bear its own costs."
3. Being aggrieved thereby, Defendant No. 9, had preferred the instant Letters Patent Appeal which was transferred to Bombay Bench for final disposal. After this Letters Patent Appeal had been heard in part by this Bench, on 1st October, 1989, the learned Counsel for the plaintiffs respondents filed an application under Order 7, Rule 27 C.P.C. praying for leave to amend the plaint of the suit. We were of the view that the said amendments were necessary for factually determining the real questions in controversy between the parties. As the Appeal had then remained part heard, we had not recorded reasons for allowing the prayer for amendment of the plaint on payment of Rs. 500/- as costs in favour of defendant No. 9 (Appellant herein). Time for filling of the written statement had been also filed.
4. Pursuant to the said leave granted, paragraphs 7A to 7F and 8A to 8C had been inserted in the plaint of the suit. By making the said amendments, the plaintiffs had averred inter alia that defendant No. 9 had represented to the proposed members of the plaintiff Society that he had already advertised that the colony would have 10,000 square metres central play ground. He had also represented that as per the scheme of the proposed Co-operative Housing Society of the Plaintiffs La Campala residential colony would have several special features including the central open space measuring 19,250 square metres, ensuring light, ventilation and recreation ground. The plaintiffs further averred that acting on the representations made by defendant No. 9 inter alia that open space of 19,250 square metres would be kept for light, ventilation and recreational facilities, decision had been taken to form the Plaintiff society and to purchase 5 plots. After formation of the society and purchase of the plots an Associate concern of defendant No. 8 viz, M/s. Nanu Ramakant & Co. had completed construction of the buildings in the 5 plots purchased by the society.
5. The defendant No. 9 had filed an additional written statement with reference to paragraphs added by amendment of the plaint of the suit. Defendant No. 9 had averred inter alia that when the plan for development of the residential colony was under preparation, defendant Nos. 1 to 8 had been informed by the Officers of the concerned Department that while sub-dividing the said property into various plots the defendant No. 9 as Developer would not only provide for internal access but also have to leave certain portion of lands as vacant. Normally 15% of the land used to be kept open. The Officers had told that a similar law was contemplated for Panaji. By way of abundant caution, tentatively the defendants had decided to leave open about 19,250 square metres as open space in the sub-divisional plan submitted to the Municipal Council. After rules were framed by the Municipal Council in the year 1977 requiring 15% of the total land to be kept open, on 21st November, 1977 defendants had applied to the Municipal Council for permitting them to make more plots for construction, upon an area of about 7,000 square metres out of the said open space of 19,250 square metres Defendant No. 9 had also made averments about the discussions made between the promoters of the plaintiff Co-operative Society on one hand and Defendant No. 9 on the other. The defendants claimed that the Promoters did not ultimately purchase 29 plots as originally proposed by them. In the mean time Defendant No. 9 had procured loan from a Co-operative Bank to finance the society. Defendant No. 9 further claimed that the special features mentioned in the advertisement issued were merely to "puff up" the proposal of the society and not for creating any legal obligation. Defendant No. 9 denied that there was any representation that there was 19,250 square metres open space in the colony.
6. After pleadings of the parties were amended, the following three additional issues were framed :---
(1) Whether the plaintiff prove that the defendant No. 9 made representation to the plaintiff as alleged in Para 7(a) to 7(d) of the amended plaint.
(2) Whether the plaintiffs prove that the plaintiffs acted upon the said alleged representation in the manner described by them in paras 7(f) and 8(a) and 8(b) of the amended plaint and, therefore, whether the defendant No. 9 are estopped from the constructing and/or developing on any portion of the central open space admeasuring about 19,250 square metres.
(3) Whether the defendants No. 9 prove that they had left the central open space open in contemplation of law requiring them to keep such an open space and that on the contemplated law having come into force requiring the defendants No. 1 to keep open only 15% land open, the defendants No. 9 are entitled to construct on the said open space."
Both the parties had adduced further oral and documentary evidence. Thereafter we further heard the Appeal and had reserved our judgement.
7. The principal point in this case is whether the defendant Nos. 1 to 9 are under legal obligation to keep the entire central open space measuring 19,250 square metres for ever open for enjoyment of the right of the plaintiffs to take air and light and also for use as a play ground and recreational place. In making declaration in this behalf and granting injunction in favour of the plaintiff, the learned Single Judge had held inter alia that defendants had made representation that there will be an open space of 19,250 square metres and the plaintiff society had purchased the plots relying upon the same. Therefore the plaintiffs were entitled to uninterrupted use of the central open space for air, light and play ground. The learned Single Judge also upheld the plaintiff's contention that defendant No. 9 had made admissions as to how the central open space would be utilised and that defendant No. 9 was bound by the same. These statements if treated as representations would enable the plaintiff to claim relief on the principle of promissory estoppel.
8. At the time of the previous hearing of the appeal, on behalf of Defendant No. 9 appellant , it had been contended that in the plaint the plaintiff did not expressly take the plea of promissory estoppel. It had appeared to us that before the learned Single Judge both the parties had already led evidence and had made submissions on the question of promissory estoppel, if any , arising from the alleged representations on the part of defendant No. 9 to keep a vacant area of 19,250 square metres. The learned Single Judge had also recorded his finding on the question of promissory estoppel. In these circumstances in order to meet the Defendants' objection that in the absence of any express averments of estoppel in the plaint, the said point had been decided against it, we felt that the plaintiff ought to be given an opportunity to amend the plaint expressly incorporating therein the alleged representations made by defendant No. 9 regarding the central open space and for giving liberty to the defendants to file additional written statement.
9. As already noted that pursuant to the leave obtained the plaintiffs had amended the plaint of the suit and the defendant No. 9 had filed additional written statement. Further evidence has been also recorded in respect of the additional issues framed in the suit. Mr. Pandit learned Counsel appearing on behalf of the appellants has submitted before us the following propositions :
1. There can be no easement of light and air and play ground as claimed by the plaintiff.
2. Assuming that there can be such a right it can be created by express grant or contract. The trial Court was not wrong in holding that there was no express grant or contract in this behalf.
3. In any event violation of easement of light and air would not be actionable unless the same resulted in material or substantial interference with the enjoyment of the dominant factor.
4. The amendment of the plaint was necessary because in the original plaint plea of estoppel had not been taken through the learned Single Judge had considered it.
5. No plea of estoppel was proved by evidence even after the pleadings were amended and parties had adduced further evidence.
6. Upon the evidence adduced by the parties, it would be inequitable to grant prayer for injunction made by the plaintiffs.
10. The learned Counsel appearing for the parties including the Municipal Council of Panaji have correctly pointed out that the provisions of the Indian Easements Act had come into force in the then Union Territory of Goa, Daman and Diu with effect from 1st November, 1978 i.e. long after the transfer of the plots in the said La Campala colony in favour of the plaintiff society. Therefore the existence or otherwise of the defendant's obligation to keep open the said central open space of 19,250 square metres ought to be decided in the light of laws which were in force before the appointed date in Goa, Daman and Diu (Administration) Act, 1962 which were continued to remain in force at the relevant time by reason of section 4(1) of the Goa, Daman and Diu (Administration) Ordinance, 1962 and thereafter by corresponding section 5(1) of Goa, Daman and Diu. It has been submitted before us that under the Portuguese Law, 'burden' which was in the nature of an easement imposed upon any property belonging to different owners used to be called 'servitude'. Under Article 2274 of the Portuguese Civil Code, unless a contrary intention was declared, upon severance of separation right in the nature of an easement would continue to subsist.
11. In his judgement the learned Single Judge has also referred to Article 2267 of the Portuguese Civil Code and the Commentary on the said Code by Cunha Gonsalves. Easement under the said article was described as a charge imposed on any property for the enjoyment or benefit of another property belonging to a different owner. The said learned Commentator had observed inter alia that the "enjoyment or benefit" may be eventually that is calculatedly stipulated though unnecessary to the dominant factor in its actual state. In view of the authoritative statement of law under the Portuguese Civil Code, we are unable to accept the statement of Mr. Pandit learned Counsel for the defendant-appellant that easement by the plaintiffs could not be acquired over the central space which was an open land. The learned Single Judge was correctly held that under Portuguese Civil Code there could be creation of an easement of the nature claimed by the plaintiffs There was prescribed mode of creation of easement under the said Civil Code.
12. It seems that principles of law relating to these matters under the Portuguese Civil Code were not very difficult from the present law relating to easements and quasi easements. Mr. Usgaonkar appearing on behalf of the plaintiff- respondents, has placed before us certain passages from Gale on Easements 15th Edition. Under the heading 'creation by implication ' at page 94 of Gale on Easements , it has been stated that, "an easement may arise by implication under a grant, including a lease and a testamentary gift of land if an intention to grant it can properly be inferred. This intention may be inferred :
(1) Where the grant contains particular words of description. Alternatively, in such a case, the easement may be created by estoppel.
(2) Where the circumstances indicate that it was contemplated that the land granted would be used in some particular manner. The easement may be implied by the necessity of the case.
(3) Under the doctrine of non-derogation from grant, by virtue of which, as already noticed, there may be acquired not only easements but also immunities of a special kind not recognised as easements.
(4) Under the rule in Wheeldon v. Burrows, (1979)12 Ch.D. 31 which is a branch of the general considered against derogation from grant, but which is commonly rule under a separate head.
The occasion on which an easement most commonly arises without being granted or reserved in express terms is when the owners, or lessee, of land sells or lets part of it and retains the rest or disposes of both parts to different persons at the same time. An easement impliedly agreed to be granted or reserved in such a case takes effect as an equitable easement pending the execution of the conveyance or lease, and thereafter, whether expressly granted or not, takes affect as a legal easement."
13. Therefore in view of the above authoritative statement of law we are unable to subscribe to the view pronounced by Mr. Pandit learned Counsel appearing on behalf of the appellant that a right in the nature of an easement or quasi easement can never arise by implicatoin. We are therefore required to consider in the facts of this case whether or not there was an express grant in plaintiff's favour or an alternatively an intention manifested by the defendant Nos. 1 to 9 to grant to the plaintiff's right to enjoy the entire open space of 19,250 square metres for the purposes of enjoyment of light, air and also for recreational facilities could be legitimately inferred.
14. In support of his submission Mr. Pandit learned Counsel for the appellant has relied upon the decision of the Supreme Court in the case of Banwari Lal and others v. Sukhdarshan Daya, A.I.R. 1976 S.C. 814. We agree with the view of the Single Judge that the said decision is distinguishable on facts. The Supreme Court in the said reported case had upheld the view of the High Court that the maps annexed to subsequent sale deeds did not amount to a representation that a particular plot would remain in perpetulity unbuilt upon and that the same had been earmarked or reserved for construction of Dharamshala. In the first place the sale deed in favour of Manohari Devi who was predecessor in interest of the defendant was prior in point of time to the sale deed in which the plot was described as Dharamshala. Therefore Supreme Court held that subsequent purchasers of other plots in the colony had notice that the plot No. 19 was not subject to any restraining covenant. Distinguishing their previous decision in the case of K.S. Nanji and Co. v. Jatashankar Dossa, A.I.R. 1962 S.C. 1474. Supreme Court pointed out in Banwari Lal Sukhdarshan's case (supra) that maps were not annexed to the sale deed and could not the before be deemed to be a part of the sale deeds by incorporation or otherwise. The sale deeds in Banwari Lal's case (supra) did not also refer to any map in the context of the house in plot No. 19. In the present case before us, in all the five sale deeds dated 31st July, 1970 the map showing the 19,250 square metres as open space was annexed and referred to in the deeds and therefore the said map must be construed to have been incorporated in the deeds of sale in favour of the plaintiff Model Co-operative Housing Society.
15. There are also other pieces of convincing evidence showing that the Defendants had in fact represented to the plaintiff that they would keep open Central area measuring 19,250 square metres. On 1st April, 1957, Defendant Nos 1 to 8 had agreed by two deeds to sell to defendant No. 9 about 67,386 square metres of land. Thereafter, on or about 27th November, 1969 Defendant No. 9 had filed an application in the office of the Municipal Council, Panaji for processing the plan for development of La Campala Housing colony. In the said lay out plan submitted to the Municipal authorities the land was divided into 103 plots with roads and access. An area of 19,250 square metres was shown as open space. After pleadings were amended, Defendant No. 9 has examined Umesh R Pai as DW-2 who had been working as a Municipal Engineer in Panaji Municipality in the year 1967. He claimed to have remembered that in 1967 R.V. Kakodkar, the Manager of Defendant No. 9, along with his Architect had come and met him in the Municipality in connection with the sub division D.W. 2 had claimed that he had told Kakodkar that uptil then the Rules of Town Planning Committee had not been formulated till then and every thing was in the discretion of the Town Planning Committee. In his cross examination, made on behalf of Defendant No. 10, DW-2 had stated that 15% reservation for open space which he had advised was on the basis of the guidelines formulated by the Town Planning Committee.
16. Ramakant Kakodkar, the Manager of Defendant No. 9, in his further examination in-chief recorded by the commissioner on 16th December, 1988 had himself stated that both Mr. Deshmukh and Mr. Umesh Pai, the then Municipal Commissioner had told him that in Goa there were no rules or regulations as yet framed but normally 15% of the land was required to be kept open. So to be on the safe side, Defendant No. 9 was asked to leave open space to the extent of 20%. There fore he had kept 19,250 square metres which Ramakant D.W 1 had admitted was less than the 20% of the total land which would come to 22,000 square metres. He claimed to show the remaining 3000 square metres in different patches. It is, in our view, significant that although at the relevant time there was no legal requirement. Defendant No. 9 had kept 19,250 square metres as open space in the sub-division plans submitted to the Municipal Council. The same lay out plan showing not only the situation of the different plots but also depicting the open space of 19,250 square metres had been annexed to all the five Deeds of Sale dated 31st July, 1970, subsequently executed in favour of the plaintiff Co-operative Society. We are unable to give any credence to the Defendant No. 9's claim that he had kept the said area vacant merely as a measure of abundant caution with intention to later on claim the excess area for further future development.
17. We may proceed to consider whether apart from description as open space in the lay out plan submitted by the defendant in the office of the Municipal Council and in the identical plan annexed to the sale deeds in the plaintiff's favour there was representation in any other manner by defendant No. 9 that would keep open area of 19,250 square metres for enjoyment of the owners of the plots including the plaintiff's for enjoyment of right of light, air and for use of recreational facilities and play ground. The said Central area of 19,250 square metres was intentionally shown in the above plan in order to induce the people to buy plots in the La Campala colony.
18. On 13th October, 1968 admittedly defendant No. 9 had inserted an advertisement in Navhind Times of Panaji, Exhibit P-10, announcing about La Campala residential Colony at Miramar. The advertisement stated that there were about 80 plots each of 504 square metres and 19,250 square metres Central play ground. Mr. Usgaonkar the learned Counsel has pertinently pointed out that Ramakant Kakodkar, DW-1 in his evidence at page 209 had admitted that it was a fact that the La Campala colony scheme contained various things including keeping of about 19,000 square metres as Central play ground. Accordingly, it is clear that such provision for 19,250 square metres as open space was part of the original scheme prepared by defendant No. 9 right from the stage of the submission of the sub-division plan in the office of the Municipal Council, Panaji.
19. It has been pointed out to us that in paragraph 14 of the plaint it had been averred that the level of central open space was one metre below the surrounding road level area. According to the written statement filed by defendant No. 9 the said open space was 60 metres below the road level. It may also be important to note that the said open space of 19,250 square metres was not merely in respect of the five plots purchased by the plaintiff - Society but the said open space was part of the entire scheme consisting of 103 plots.
20. Before us Mr. Pandit learned Counsel for the appellant submitted at considerable length that the brochure, Exhibit P-9, was issued by the proposed Model Co-operative Housing Society and not by any of the defendants. Therefore the defendants were not bound by the statements made in the said brochure that Central open space measuring 19,250 square metres will assure light and ventilation and besides a large recreational ground for the members. The special features set out there in according to Mr. Pandit were not inserted by defendant No. 9 but by the Promoter of the said proposed Society Dr. Almeida. Therefore, defendant No. 9 was not bound by this statement that 19,250 square metres Central open space would be kept.
21. Dr. J.C. Almeida who had been the Chairman of Goa, Public Service Commission was described as the Chief Promoter of the Model Co-operative Housing Society. He was examined only after the pleadings were amended and parties adduced additional evidence. Dr. Almeida in his examination in chief has stated that some time in 1968 he had been searching for a plot or a flat in Panaji for himself and his sister in law when he had come across an advertisement in the newspaper that plots for building were available in Panaji and interested persons could contact defendant No. 9. The witness had contacted defendant No. 9 viz. Ramakant Kakodkar who had showed him the plans of the development and had explained the features. He had again met Ramakant Kakodkar and Kakodkar had told him to prepare some sort of prospectus so as to attract firm commitments from others. Even from the evidence of Dr. Almeida it would appear that Ramakant kakodkar had taken leading part in the formation of the said Co-operative Society. Meeting took place in the office of Kakodkar. Thereafter a prospectus was prepared. When Dr. Almeida and Acquino were preparing the prospectus in the office of Kakodkar, Shri Kakodkar had explained the salient features of the scheme. Dr. Almeida claimed that they had put the features and added some more. Even we accept the evidence of Dr. Almeida, that special features were drawn up by him, the said claim even if true would not make any difference. In the body of the prospectus itself mention had been made of keeping open space of 19,250 square metres both in the plan submitted by Kakodkar in the office of Municipal Council and in the advertisement, Exhibit P-10, issued in Navhind Times by him. The said open space of 19,250 square metres had been expressly mentioned. We may note that Dr. Almeida subsequently did not join the plaintiff Co-operative Housing Society and he was allotted some other plot and on his behalf defendant No. 9 had constructed his bungalow having two floors. Therefore the evidence of Dr. Almeida did not support the claim of Defendant No. 9 that no representation was made to the plaintiffs for keeping central open space open. The defendant No. 9 was bound by the representations made in Exhibits P-10 and P-11. The sale deeds executed by the defendants in plaintiff's favour in the light of surrounding circumstances clearly established that the defendants had intended to create in plaintiff's favour the right of light, air and play ground over the central open space.
22. At one stage of his submission, Mr., Pandit, learned Counsel for the appellant-defendant No. 9 tried to submit that the plaintiff Co-operative Society had originally proposed to purchase 29 plots of land but had ultimately purchased from the defendants only five plots. Therefore the plaintiff was not entitled to claim that the said entire area of 19,250 square metres should be kept open. There were no pleadings or evidence on the part of the defendants that their representation, if any, to keep open the said Central area was made conditional upon the plaintiffs Society acquired 29 plots. The said representation had been made both in the lay out plan submitted in the office of Municipal Council and also in the advertisement published in Navhind Times. In the plan annexed to sale deeds executed in favour of the plaintiff Society, the central open area and its measurement were depicted.
23. At the time of the hearing before the learned Single Judge, the plaintiff had examined PW-1 Maharudra who claimed to be a member of the plaintiff Society. He proved that the plaintiff society was registered on 24th September, 1969. He had proved that sale deeds dated 31st July, 1970 in favour of the plaintiff. He had also proved the Defendant's lay out plan, Exhibit P-7. According to the said witness, the building of the plaintiff society started in the year 1970 and the same had completed in the year 1972. The said witness claimed that the plaintiff's plot enjoyed light and air from the open area also use the said area as their play ground.
24. Renato, another member of the plaintiff society, was also examined as a witness. His brother-in-law Joaqhim Monterior upon recommendations made by the said witness had claimed that R.B. Kakodkar on behalf of Defendant No.9 had represented that they had prepared a scheme for residential houses at Miramar to be called La Campala colony. The said witness had also claimed that Kakodkar had told him that open space of 19,250 square metres will be there for air, light and also as play ground and had given him a printed leaflet which was Exhibit P-9. The said witness had also mentioned about the plan, Exhibit P-7 being shown by Kakodkar. In view of the said representation, the witness PW-2 got interested. He persuaded his brother-in-law to book one block. The said witness himself purchased another block. Kakodkar himself had granted receipt for payment made for buying the share of the Society. Kakodkar used to call meetings of the Society and also used to conduct the same. This oral evidence adduced on the side of the plaintiff clearly show that there was representation made by Kakodkar on behalf of the Defendant about keeping open 19,250 square metres as central open area. Kakodkar himself took leading part in the formation of the Co-operative Society and by holding forth such representation persuaded persons to become members of the plaintiff co-operative society. Kakodkar had taken leading part in formation of the co-operative society and had represented about keeping said central space open. But he was trying to resile from the representation he had made to the prospective members of the co-operative society about keeping open the central open space in the said La Campala housing colony. PW-3 on behalf of plaintiff also corroborated plaintiff Nos. 1 and 3 that it was Kakodkar who had told him about the formation of the society and had explained the scheme. The building of the plaintiff-society was constructed by M/s-Nanu Ramakant and Company, as Associate concern of Defendant No. 9. PW-3 also mentions about representation regarding keeping open said central open space. PW-4 had also become member after reading newspaper advertisement, Exhibit P-13. He had also contacted R.B. Kakodkar and seen him. Kakodkar had shown him the design of the building and lay out of the buildings.
25. Ramakant on behalf of defendant No. 9 had submitted that defendant No. 9 had developed the La Campala colony. According to him a in the approved sub-division plan total area was shown was 96,000 square metres whereas according to the Land Survey Department the area came to 1,02,000 square metres. He had mentioned about the sub-division into plots. He was obviously untruthful when he claimed that he had no hand in the promotion of the plaintiff-society. At the same time he admitted that the advertisement Exhibit P 10 regarding La Campala colony inserted in Navhind Times newspaper dated 30th October 1968 was by defendant No. 9, We have already pointed out that the evidence of Ramakant regarding original negotiations for purchase of 29 plots by the proposed Co-operative Society was not very relevant because even after the palintiffs agreed to buy five plots, the same representation was made to keep open 19,250 square metres. Ramakant in his evidence had also admitted that in the sub-division, central open space of 19,250 square metres was shown. He also admitted the development contemplated by the defendant No. 9 as per the development shown in the plaint. During cross examination he had to admit that he had rendered help in the formation of the plaintiff Co-operative by explaining the scheme to all prospective members, to enroll them after issuing receipts for the payment made by them. He did all that was possible to see that the plaintiff Co-operative Society would come up. He used to attend meetings of the society and to record the minutes of the meeting. There is no importance in the fact that said Ramakant had allegedly incurred loan of Rupees One lakh so that M/s Nanu Ramakant & Company could start construction work of the plaintiff's building on the five plots.
26. While claiming that he had objected to mentioning the central open space amongst the special features in the brochure. Ramakant himself admitted he did not pursue the objection in one breath. Ramakant in his original evidence had denied that he or defendant No. 9 had made any representation about the scheme indicating the keeping of open space of 19,250 square metres and then he had categorically admitted,"..... My say is that I, R.B. Kakodkar, made such representations in Exh. P-11 but I did it for and on behalf of the proposed plaintiff/society". In our view, there is ample evidence on record to indicate that such representation by Ramakant was made on behalf of defendant No. 9.
27. In his further evidence given on commission, Ramakant had mentioned about the advise given by the then Municipal Engineer to indicate 19,250 square metres as open area as a measure of abundant caution. We have explained why we are unable to accept the explanation that the said keeping of central open area was only gratuitous and not by way of representation . We have also indicated why the evidence of Dr. Almeida does not really support the plea that the representation regarding keeping the said central open area was at the suggestion of Dr. Almeida who had promoted the plaintiff co-operative society but had later on did become member of the plaintiff society and had obtained separate allotment of building from defendant No. 9. We cannot accept the claim that in fact defendant No. 9 on the suggestion of the Municipal Engineer had kept the 20% of the total area vacant for the time being. According to evidence of Ramakant the actual area of the colony was little over 1,02,000 square metres. Therefore, central open space of 19,250 square metres would admittedly fall short of the 20% of the total area. The witness tried to make it up by claiming that another 3000 square metres will be available by taking into consideration the roads and passages in this area.
28. In the year 1977 the defendants had prepared a plan for sub division by carving out a portion of the central open space which, if sanctioned, would have left 12,440 square metres as open space. Same will be again admittedly less than the 15% of the total area of the La Campala colony which according to the defendants were required to be kept vacant. The said shortfall was tried to be made up by the witness Ramakant by claiming that open roads, passages, etc. measuring 3000 square metres should be added with the balance 12,440 square metres of the central area which will remain after creation of 14 additional plots out of existing central open area. For the foregoing reasons, we held that in preparing this scheme for the residential colony the defendant had held out representations to the prospective buyers including the plaintiff-society that 19,250 square metres would be kept as central open space. The said representation was not merely for the purpose of putting up and such feature of open space was apparently not available in the, other housing colonies which were being developed in Panaji. The said representation was repeated in the newspaper advertisement made on behalf of defendant No. 9 Exhibit P-10. Ramakant, on behalf of defendant No. 9, took leading part in formation of the plaintiff-society and members were induced to join upon the representation that said central area shall be kept open. The brochure Exh. P-9 showed that such representation was made to keep vacant space of 19,250 square metres. Therefore there is no reason why defendant No. 9 would not be bound by the said representation to keep open 19,250 square metres open space in the colony. The plaintiff-society having acted upon such representations by acquiring the plots and by constructing houses there on would certainly claim that the defendants were being estopped from denying their obligation in terms of their scheme and the plan to keep the said central area open.
29. In support of the submission that by the conduct on the part of the defendant will create an estoppel against the defendants, Mr. Usgaonakar relied upon the judgement of the Single Judge of the Calcutta High Court in Nirmal Kumar Moulik and others v. Smt. Champabala Roy and others, . The learned Single Judge in some what similar circumstances came to the conclusion that when a person prepares a plan to settle a residential colony on his land and sells plots to others on the representation that a certain land earmarked as a park to be used as such by them, he would be estopped from claiming the land subsequently as his private land. At page 410 of the reported judgement the learned Single Judge of the Calcutta High Court had observed that mere absence of recital in the Kobalas (sale deeds) about user of the park did not indicate that it was never meant to be a park though it was as such in the plan. The learned Single Judge was of the view that the plaintiff was barred by estoppel from having a declaration from the Court that the said land was a private land. In paragraph 8 of his judgement, the learned Single Judge further held that in view of the said case, there was an implied grant by the plaintiff to the defendants and the people of the locality for user of the said land as a park. We respectfully agree with the proposition of law stated in the said decision.
30. In support of his case of limited promise to keep the land open, the learned Counsel for the respondent also relied upon a case of Kantilal and others v. Chairman Town Improvement Trust, Ratlam and others, . The Division Bench of Madhya Pradesh High Court held that when plots were offered to the public on the basis of a map there was a implied promise given to the intending purchasers that an open land would be kept open and therefore even on principle of promissory estoppel the authorities could not lease out any portion of the open land in the manner done in the said case. This decision also supports the case of the plaintiff-respondent.
31. On the question of grant by implication, we have already referred to the passage at page 94 of Gale on Easement. The same propositions are also stated in paragraph 15 of the Division Bench judgement of the Madras High Court in the case of M. Ratanchand Chordia and others v. Kasim Khaleeli, .
32. Before we conclude, we may refer to the submissions made on behalf of respondent No. 10, Municipal Council of Panaji. The learned Counsel appearing before us supported the case of the plaintiffs Respondents that in the facts of the present case there was a representation made by the defendant that area measuring 19,250 square metres would be kept as central open space. The doctrine of promissory estoppel was clearly attracted to the facts of the present case and therefore the defendants were not entitled to obtain sanction of any fresh plan in order to carve out a portion of the said central open space and convert the same into additional 14 plots. The learned Counsel appearing on behalf of the Municipal Council has also placed before us the relevant provisions of Portuguese Civil Code which was in force at the time of the transfer made by the defendants in favour of the plaintiff Society and has supported the case of the plaintiffs that the defendants were bound to keep the said 19,250 square metres open. The defendants were estopped from transferring as part thereof for constructing buildings.
33. For the foregoing reasons we conclude that the learned Single Judge rightly decreed the plaintiff's suit in the manner done by him. Since the plaintiffs claim the central open space right not only for taking air and light but also for its a user as play ground and recreation, we need not deal with the submission of Mr. Pandit that even if the size of the Central open area is reduced by the defendants, the remaining area of 12,000 and odd square metres would be sufficient for enjoyment of the plaintiff's right to air and light. In the present case we are not considering merely a prescriptive right to air and light to the plaintiff's buildings. In the present case the plaintiffs based their claim upon representation made by the defendant to keep open the entire area of 19,250 square metres for enjoyment of their members and other owners of plots in the colony as the central open space for use as play ground and for other recreational activities. We have reached the conclusion that the defendants are estopped from denying the said claim of the plaintiff. Therefore upon the facts found the defendants have binding obligation to keep the entire central open space open and therefore they were not entitled to reduce the area thereof. The learned Single Judge rightly decreed the suit. The plaintiff had cause of action for filing the instant case. The plaintiff adduced sufficient and satisfactory evidence to establish that by submitting a fresh plan to the Municipal Council the defendants had attempted to deprive or at least materially affect the plaintiff's right over the central open space. By reason of description given by the defendants in the manner found by us, the defendants were estopped from depriving the plaintiff's of their right to enjoy the central open space for access to air, light and also to use as play ground. Alternatively, Defendants were not entitled to derrogate from the grant in plaintiff's favour of the right over the central space. We accordingly dismiss the Appeal with costs.