Facts:
- An extensive area was sub-divided by co-owners into small plots, as part of housing scheme called “Chandrapur colony”.
- Plot No. 19 was to be reserved as a Dharmshala and yet it was sold to one Manohari Devi who in turn sold it to Defendant.
- The defendant constructed a boundary wall around the plot, rendering impossible the use of plot for common benefit.
Plaintiff’s contention:
- The plaintiff brought present suit on behalf of various purchasers of sub plots and the suit is brought under o1,r8 of CPC and plaintiff contention was that representation was made to them that plot no. 19 will be reserved for being used in common as a Dharamshala and later it was sold to defendant.
- Plaintiff is filing the suit for permanent injuctionrestraing the defendant from interfering with construction of Dharamshala and for possession of the plot after demolition of boundary wall.
Defendant’s contention:
- Defendant denied plaintiff contention that plot no.19 was reserved for use of Dharamshala and contended that Manohar Devi, under the sale in her favour had become the absolute owner of the plot and was entitled to sell him.
Judgment:
Trial court:
Held that co-owners had lost their ownership over that plot and therefore they had not right to sell.
First Appellate Court:
Affirmed the decree of lower court. Appeal filed.
High court:
High court stated that the title of co-owners t Plot No. 19 was not divested and the plaintiff had no cause of action to bring the suit. The High Court having reversed those findings and dismissed the suit, plaintiffs have filed this appeal in Supreme Court.
Supreme Court:
The transfer in favour of Manohari Devi was effected by a registered deed of sale and therefore, subsequent purchasers of the other plots in Chandrapuri Colony had notice, constructive at any rate, that plot No. 19 was not subject to any restraining ovenant.The maps in the instant case are not annexed to the sale-deeds and cannot therefore be deemed to be a part of the sale-deeds by incorporation or otherwise. In fact no sale-deed refers to any map in the context of the use of plot No. 19.
In the first two Courts, arguments revolved round a plea of estoppel. Learned counsel for the plaintiff put the same plea in the forefront before us contending that the co-owners were estopped from disputting the right of the plaintiffs to ask that plot No. 19 shall remain reserved for the use of a Dharmshala. There is no merit in this contention. Evidence regarding the representation is vague and true facts were known to those who purchased the sub-plots after plot No. 19 was sold to Manohari Devi in 1946. Besides, estoppel is but a rule of evidence and except in cases like those under Section 43 of the Transfer of Property Act, when a grant is fed by estoppel, the rule does not operate to create interest in property regarding which the representation is made.
The High Court was therefore right in concluding that the title of the co-owners to plot No. 19 was not divested and that the plaintiffs had no cause of action to bring the suit. Accordingly, SC confirms that judgment and dismiss the appeal with costs. Appeal dismissed.
