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IN THE HIGH COURT OF BOMBAY
C. Mookerjee, C.J. S.P. Kurdukar, J.
Real Estate Agency .... Appellant.
Versus
Model Co-operative Housing Society Ltd. others .... Respondents.
Letters Patent Appeal No. 26 of 1983 in Civil Suit No. 1/B of 198, decided on 26-4-1990.
Advocates appeared :
P.K. Pandit with R.S.Desai, for the appellant
M.S. Usgaonkar with N.R. Modi i/b Rustomji Ginwalla Co., for respondent No.1
M.S. Usgaonkar, for respondent Nos. 1 to 9.
Fernando George Colaco, for respondent No. 10
Held-Implied promise given to intending purchases to keep central space open for light etc.-Principle of promissory estoppel applicable- Defendant could not reduce promised area of open space.
EASEMENT ACT, 1882.
Section 54-Evidence Act, 1872, Section 115-Easement impliedly granted-Not necessary to grant in express terms-Easement or quasi-easement of air and light-It can be granted by implication-Plots sold to public on basis of map which showed some open land besides the plots-Held, open land would be kept open for facilities air, light and play ground to plot-holders.
The occasion on which an easement most commonly arises without being granted or reserved in express terms is when the owners of lessee, of land sells or lets part of it and retains the rest or disposes of both parts to different persons a t the same time. An easement impliedly agreed to he 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 effect as a legal easement.
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. Court has 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 effect the plaintiffs 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 plaintiffs of their right to enjoy the central open space for access to air, light and also to use as play ground.
Alternatively, Defendants were hot entitled to derrogate from the grant in plaintiffs favour of the right over the central space.
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 t
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