JUDGMENT Sunil Ambwani, J.
1. This Second Appeal arises out of O.S. No. 28 of 1976 for mandatory injunction to remove constructions raised by defendants Nos. 3 and 4 on the land in dispute and for pendentelite and future damages. The suit was dismissed with costs by IVth Civil Judge, Varanasi on 30.8.1977. The Civil Appeal No. 629 of 1977 was allowed decreeing the suit on 17.11.1978.
2. I have heard Shri Sankatha Rai, learned Counsel for the appellants. No one appears for the respondents.
3. The suit was filed with the allegations that Smt. Nauvjaddi Kunwar-defendant No. 1 purchased the land from several persons in village Karaudi Pargana Dehat Amanat District Varanasi for establishing a residential colony. She divided the land in various plots for construction of residential houses. Some portions of the land were reserved for road and park. A lay out plan was prepared in which the land reserved for park was demarcated and delineated with 'red' and 'blue' hatched lines. The park and road were meant for exclusive use of the residents of the colony named as 'Nand Nagar Colony'. The plaintiffs, most of whom, are teachers in Banaras Hindu University, purchased the plots and constructed their houses. The defendant No. 1 agreed and assured the purchasers of the plots that the land earmarked for road and park and other beneficial purposes will be jointly used by the residents of the colony and that the defendant No. 1 will not deal with them. In case of breach, the residents were entitled to enforce these rights. The plaintiff and other persons purchased the plots on this assurance and agreement.
4. It was further averred that the defendant No. 1, also constructed a well and fitted an electric pump and water pipe lines for supply of water to the residents. The well was constructed on a part of the land reserved for park with a small room in which an electric meter was installed. A portion of the park was enclosed by the boundary wall on eastern and southern sides and some trees were planted on it. The gates were put on both the sides and the children of the residents of the colony used the park for play ground. Few days before filing of the suit the defendant No. 4 started constructions on the land of the park and started raising boundary wall. The defendant No. 4 informed the plaintiffs that defendant No. 2, the general attorney of defendant No. 1, had sold the land to his wife defendant No. 3, and that he was authorised to raise constructions. The defendant No. 4 did not stop constructions even after he was told that the land was reserved for park giving cause of action to the plaintiff to file the suit.
5. The defendant No. 2 did not contest the suit. The defendant Nos. 3 and 5 filed joint written statements. They pleaded that the disputed land is not identifiable in the map and that the boundaries at the foot of plaint were wrong. The defendant No. 1 was original owner of the land in plot Nos. 216 and 221. She had sold it to several persons after sub-division without apportioning any land for park or preparing any lay out plan. A plan annexed to the plaint is fictitious. They denied of any assurance given to the plaintiffs regarding reserving the park for the residents of the colony. There are no trees at the disputed land, except a mango tree. The other mango tree is on the other portion of the colony. A portion of settlement of plot 205 is sought to be included in the disputed land which, in fact, was not in the ownership of defendant No. 1 and was owned by Mst. Dulari and Triveni Singh. The defendant Nos. 3 and 4 had no knowledge of the existence of the park. There was an agreement between defendant No. 1 and defendant No. 3 for purchasing plot No. 21 situate in settlement plot No. 215 but since litigation was pending, the defendant Nos. 3 and 4 got the sale deed of the land C.D.G.H. executed by the defendant No. 1, and have constructed boundary wall on 2.1.1976. The plaintiff himself told defendant Nos. 3 and 4 that he had constructed his house on the land earmarked for the school. On the basis of his assurance, the defendant Nos. 3 and 4 got the sale deed executed. The plaintiff did not raise any objection at the time of raising a boundary wall or laying foundation upto the level of land. The defendant Nos. 3 and 4 claimed to be bonafide purchasers for value without notice of the so called park.
6. The trial court framed the issues to the effect whether the land was kept apart for the purposes of park; whether defendant No. 1 has divested herself from the ownership therein; whether the suit is barred by Section 34 of the Specific Relief Act; whether defendant Nos. 3 and 4 are protected under Section 41 of Transfer of Property Act; whether the court fees paid is insufficient and the relief to which the plaintiffs are entitled.
7. After considering the documentary and oral evidence in which the plaintiff examined himself as only witness for plaintiff and defendant No. 3 examined himself as DW-1 and one Ram Shanker Singh as DW-2, the trial court held that the plaintiffs have failed to prove that the disputed land is a park. The sale deeds (Ext. -1) dated 18.10.68 in favour of plaintiff No. 4; (Ext. 2) in favour of plaintiff 4 provided that plots earmarked for roads and parks and other beneficial use by the residents of Nand Nagar Colony were vested in them jointly and the vendor could neither dealt with them nor put them to for any other use for which such right shall be enforceable by the residents including any vendor singly or jointly. The lay out plan in blue print was, however, not filed along with the sale deeds. In absence of the plan it was not clear as to which of the plots were earmarked for the purposes of parks. The plaintiffs stated that the disputed land was the only place earmarked for park in the sale deed. However, there was a reference to parks i.e. more than one park of which no reference was made. The map annexed (Ex. 2) and sale deed in favour of plaintiff No. 5 showed that the plots sought apart from road were earmarked in the map but no plot was earmarked as park. The same was the position of the sale deed (Ext. A-11) in favour of defendant Nos. 3 and 4. The trial court thus concluded that the plaintiff failed to prove that the disputed plot No. 8 was earmarked for a park. In the oral evidence an objection was raised that the plaintiff is deviating from the pleading and is making an attempt to link the averments in para 13 of the agreement with plot No. 8. In para 13 of this agreement, it is stated that the purchasers shall arrange for a park and the length of which shall be 150 feet and breadth 80 feet, according to the lay out plan of Nand Nagar Colony. The introductory parts of this agreement stated that the map is annexed. The said maps were not filed with the agreement. The objections were sustained as the witnesses were trying to add something to the written agreement, which they could do under Section 92 of the Evidence Act. The lay out plan annexed to the plaint did not tally with the averments in para 13 of the agreement as boundaries were 150 feet in length 80 feet in all the four directions and that as against a total area of 12000 sqrmtr (15O'x5O') is stated in the plaint map as 12464' of plot No. 8.
8. The trial court also disbelieved, plaintiff No. 1 who produced himself in support of his case, as a highly interested witness. The trial court then discussed his evidence in proof of the facts that originally defendants Nos. 3 and 4 had agreed to purchase plot No. 21 but since it was in litigation, an agreement was executed in respect of plot land including the disputed land after about one year and that the constructions were raised in January 1976. The agreement had provided that if plot No. 21 is not sold to defendant No. 3 within a year, the defendant No. 3 shall be at liberty to construct on the disputed land. The suit was dismissed on these findings.
9. The appellate court gave following reasons to set aside the findings and to decree a suit:
(a). Smt. Naujaddi established a colony "Nand Nagar Colony" executed by sale deeds in favour of plaintiff and other persons. The sale was negotiated on the basis of a chartered plan to accompany each and every sale deed. There is no doubt that the areas noted against each and every sub plot do not agree with the blue print, of which only the copy was filed as Ext. 10 and the map annexed to the plaint. The plot No. 8 measuring 12464 square feet as against 12000 square feet is, however, was not shown to exist to any where else and the variations in the measurements could not pre-empt the existence of a lay out and transfers on that basis.
(b). The pre-sale contracts as well as sale deeds clearly established that Smt. Naujaddi Kunwar had undertaken to set apart and develop a park and roads and not to negotiate the parcels so comprised for disposition, what was negotiated was with the unequivocally and unambiguous existence and development of a part at her own expense in the colony.
(c). There is, of course, no document to show that plot No. 8 was earmarked for the park, yet circumstances exists as no other plot has been pleaded to be a park in the colony. There is mention of the park in the pre-sale contract and para 12 of the agreements provided for compensation for failure on her part to make such arrangement. Paragraph 13 gives the dimensions of the proposed park as 150' x 80'. In addition the plaintiff had stated on oath that this was the very plot left apart for a park. Since the agreements filed in documentary evidence are silent about the specific number, the plaintiff as DW-1 could have given oral evidence to support the fact and that in such circumstances Section 92 of Evidence Act was not attracted.
(d). The photographs; the report of the commissioner and the statements of the plaintiff and defendants witnesses indicated that the southern portion of plot No. 9 contained a well, a mango tree, a pumping set and boundary walls of which the portions still exist. It further supports the fact that the vendor had kept her promise about supply of water and other agreement as recited in the paras 5,15 and 19 of the pre transfer agreement.
(e). Northern portion of plot No. 8 falls in settlement khasra No. 215. There was a title dispute pending with regard to this plot between Smt. Naujaddi and others. Ultimately a promise to have been arrived at in which the half of the plot went to Smt. Naujaddi and Siweshwar Prasad Narain Singh and others. Both the co-sharers by sale deeds (Ext. A-11 and A-12) transferred the entire plots in their shares in favour of Smt. Dulari and Smt. Naujaddi having sold the eastern half and others having done the western half. The plot no. S falls in the western half of khasra plot No. 215. Smt. Naujaddi was not competent to settle entire plot No. 8 reserved for park. Subsequently Smt. Naudaddi got undisputed title in respect of half share of khasra No. 215. She then manipulated a partition with other co-sharers to the effect that this part should go to the strangers and eastern area should remain with her. It was a matter of doubtful dealings as she had retrained residential plots of eastern portion for sale and gave western portion to other co-sharers who were not bound by her agreement and could sell away the western portion including the park area of khasra plot No. 215. If the portion of the park had gone to others, it did not mean that Smt. Naujaddi should have dealt with southern portion. Only an appropriate civil action can decide whether the contractual obligation undertaken by Smt. Naujaddi about plot No. 8 was enforceable against Smt. Dulari.
(f). Oral evidence of DW-1 Dr. G. Rai Shekher, who is a professor of repute, that the disputed plot had been used as a park by the children and the statement of Sobhnath DW-1 that he had seen the lay out plan and that he is a Lekhpal, does not prove that he must have known the true states of affairs. DW-2 admitted that the pumping set was purchased and installed by Nand Lal, Mukhtar-e-aam of Smt. Naujaddi.
(g). Smt. Naujaddi and her Mukhtar-e-aam Nand Lal Srivastava had not contested the suit, by their absence, they have collaborated the plaint case.
10. The appellate court then held that Section 41 of the Transfer of Property Act is not applicable. Sobhnath DW-1 the defendant in the case was a 'Lekhpal' (a revenue officer). He admitted that he had inspected various sale deeds and lay out plan and had also talked that one of the resident of the colony Shri Prakash Chandra Sachan plaintifi No. 6. He should have known the assurance the colonizer has given to the intending purchaser. No effort was made by him to ascertain truth. He did not make any bonafide attempt to find out whether any park was provided in the colony.
11. The appellate court further found that the sale deed in favour of Smt. Tara Devi wife of Shri Sobhnath reveals the sinister motive behind the purchase. The lay out plan did not mention plot No. 8. A sum of Rs. 3000/-, out of agreed consideration, was left outstanding. The purchaser undertook an obligation not to make constructions for one year. The parties initially had talked about purchase of plot No. 21. Since this plot was in litigation, the disputed land was transferred with a promise that she would be given plot No. 21 as and when it fall to the colonizer with clear title. The existence of the boundary wall should have been an eye opener for Sobhnath who had negotiated the sale for his wife. In such event, it cannot be said that he had purchased the property in good faith without notice to the existence of park. He, therefore, was not entitled to any benefit from Section 41 of the Transfer of Property Act.
12. The appellate court did not agree with the damages and found that the damages of Rs. 100/- per annum are too high for depriving them for the use of enjoyment of a park. Lastly the appellate court did not agree that in such a situation a suit simplicitor for mandatory injunction could not be filed without consequential reliefs of possession. The boundary wall in certain parts despite a littledemolition by the defendants respondents over the disputed land as park will be deemed to be in possession of the residents of colony. Once the boundary walls are demolished and possession of the park would, by its own nature, go to the residents of the colony. The appellate court was thus allowed the civil appeal decreeing the suit for mandatory injunction for demolition of constructions.
13. The decree of demolition was stayed on 22.2.1979. Learned Counsel for the defendant appellant, however, did not make any statement about further construction, which may have been raised by the appellant. The stay application did not seek any such permission and thus I find that the decree of the appellate court stayed only to the extent of demolition of the constructions did not authorize the appellant to complete the constructions.
14. The appeal was admitted only on question No. 1 as follows:
1. Whether the land in dispute vested in plaintiffs on the basis of so-called unregistered agreement between Smt. Naujaddi Kunwar and the plaintiffs
15. Shri Sankatha Rai, learned Counsel for the defendant appellant submits that the unregistered agreement, with the residents of the colony for use of disputed land as park, did not vest in the user of the land in them. He did not raise any question with regard to doubtful ownership of the land, the stipulation in the sale deed with the appellants that they will not raise constructions for one year and that there was no other land in the lay out plan earmarked for the park. The copies of the sale deeds executed by the defendant No. 1, the owner of 'the land in favour of plaintiff No. 4 dated 18.10.1968 (Ext. -1); sale deed in favour of plaintiff No. 4 (Ext. 2); and sale deed executed in favour of defendants 3 and 4 (Ext. 11) followed the agreements (Ext. 3, 3,7, 8) which were printed documents, were proved on record. The sale deeds had clearly provided that those plots which were earmarked for the purposes of park and road in the map annexed shall not be used for any other purposes except for which they have been earmarked. Though the map annexed to the agreement was not produced, plot No. 8 measuring 150'x80' was only plot which could meet the description of a park in the lay out plan. The use of the park by the residents for the beneficial enjoyment of their houses was a part of the agreement which ended with sale deeds providing the similar stipulation. The owner of the land and her attorney the defendants 1 and 2 did not enter the witness box to deny the stipulation. The sale deed and oral evidence and the circumstances therefore clearly established that the owner had agreed to use of the disputed land as park.
16. Ordinarily the lay out plan should have been approved by the regulatory authority. However, in the absence of such permission, the agreement with the purchaser and the sale deed which is a contract bound the purchaser with her promise and created an easement by grant in favour of the residents of the colony for beneficial enjoyment of their residential houses. The parks, roads, stair cases, parking places, water reservoirs or facilities and sewer lines left in lay out plans are easements by grant by the colonizers, which cannot be appropriated by them at a later date claiming ownership rights.
17. The circumstances further established that the ownership of defendant No. 1 over the disputed land was in doubt. She entered into an arrangement with the previous owners of a portion of the land. There were, however, still litigation pending and thus Sobhnath, a Lekhpal (a revenue officer) purchasing the land for his wife should have satisfied himself with the ownership. Since he was in doubt the agreement provided that he would not make any constructions apparently making an attempt to validate the clearance of title in respect of the plot No. 21, initially agreed to be sold to him. The agreements, sale deeds and the conduct of defendant No. 3 and 4 clearly established that the land was reserved for the beneficial use of the residents of the colony as a park and that the sale in favour of defendant No. 3 and 4 was in breach of the contract entered by the defendant No. 1 with the plaintiffs. The sale as such was viodable and has been so declared by the appellate court. The substantial question of law raised by the appellant as such has been correctly decided by the appellate court.
18. The second appeal is consequently dismissed with costs against the appellants.