Birendra Nath Basak v. Anil Kumar Sen — 1978 DIGILAW 562 (CAL)

Judgment : The plaintiff has alleged that he took a permanent lease of the disputed premises from defendant No.4, Messrs. Suhurban Co-operative Society Ltd., by a registered lease dated 7.3.1934. Defendant No, 2 took another lease from defendant No.4. Defendants premises No. 78 is to the contiguous south of the Plaintiff's premises No. 84. Defendant No. 1 has transferred a portion of the land to defendants Nos. 2 and 3. All the defendants acted in concert and excavated a portion of their land within 4 feet from the common boundary on 15.9.1960 and collected some building materials with the object of constructing a latrine thereon. In accordance with the terms and conditions of the deed of lease, the defendants are not entitled to erect any construction within 10 feet of the common boundary. . The alleged construction would be a source of nuisance and a hazard to health. Hence the suit for a permanent injunction. 2. Defendant No. 1 filed a written statement. A separate written statement was filed by defendants Nos. 2 and 3. Additional written statements were also filed. It has been alleged that the father of defendant No. 1 took a registered lease on 14.6.1933. Defendant No.1 and his brothers made a gift of a portion of the property on 21.4.1953 to their sister, defendant No.3. The plaintiff has no locus standi to bring the suit. The alleged privity of contract was between the lessor and the lessee and the plaintiff cannot enforce the same. The suit is bad for non-joinder of party. 3. The learned Munsif accepted the plaintiff's version and decreed the suit. Defendants Nos. 2 and 3 preferred an appeal and lost the same. Thereafter the present appeal has been filed. 4. It has been contended on behalf of the appellant that the State is a necessary party because after the provisions, of the West Bengal Act I of 1954 came into force, the landlord's interest vested in the State. So, in the absence of the State Government, there cannot be any determination of the rights of the parties. The plaintiff and the father of defendant No. 1 took lease from defendant No. 4 in 1934 and 1933 respectively. Clause 11 of the deed of lease is relevant and it reads as follows :- "11. To construct his building at least 10ft. The plaintiff and the father of defendant No. 1 took lease from defendant No. 4 in 1934 and 1933 respectively. Clause 11 of the deed of lease is relevant and it reads as follows :- "11. To construct his building at least 10ft. off from the road constructed by the landlord and which is at least 15 feet in width and to keep at least 8 feet of land open on each side of the premises and to keep at least 10 feet land open on the back and altogether to keep at least on behalf of the demised premises open at all times from any structures thereon and not to plant any tree from which timber may be made on the space reserved as open on the four sides of demised land" . 5. No doubt that is a restrictive covenant which, according to the provisions of section 40 of the Transfer of Property Act, can run with the land. But such clause does not give any indication that it was en grafted in the deed of lease for the benefit of the adjoining owners. In the absence of such expression or recital in that deed of lease, there can be no presumption that the restrictive covenant will run with the land. In order to support this contention, the case of (1) Chambers v. Randall, in 1922 All England Reports 565 has been cited It has been stated 'that the Municipal rules require only 4 feet of space to be left. When the leases in question were executed, there was no Municipal law at all to keep 4 feet of space as vacant land from the boundary or from the road. But after the Municipal law came into force, the alleged restrictive covenant incorporated in Clause 11 of deed of lease, Ext. D, came to an end. Moreover, after the introduction of such Municipal rules, the contract to keep at least 10 feet of vacant space from the boundary becomes opposed to public policy. Moreover, the Clause 14 of the deed of lease (Ext. 8) clearly shows that for breach, non-observance or nonperformance of the conditions contained in Clause 11 of the deed, only the lease would be forfeited by giving a notice. That is an additional ground why the plaintiff canont institute this suit to enforce the terms embodied, in Clause 11 of the registered lease (Ext. D). 8) clearly shows that for breach, non-observance or nonperformance of the conditions contained in Clause 11 of the deed, only the lease would be forfeited by giving a notice. That is an additional ground why the plaintiff canont institute this suit to enforce the terms embodied, in Clause 11 of the registered lease (Ext. D). Moreover, in 1957, the society in question viz., defendant no. 4, adopted a resolution accepting the Municipal laws in this respect. The plaintiff was present at that meeting, vide the documents (ext. C(1). So, after that resolution was passed in the plaintiff's presence, the plaintiff cannot enforce the negative restriction contained in clause 11 of the registered lease (Ext. D) to support the present case. The case of (2) Pinewood Estate v. Levack in 1957(2) All ER 517 has been cited. Moreover, defendants Nos. 2 and 3 are transferees from defendant No.1 and they had no notice of such covenant. Section 40 of the Transfer of Property Act itself shows that a covenant running with the land cannot be enforced against a transferee for consideration and without notice of the right or obligation. So, in any view of the matter, the plaintiff is not entitled to any relief. 6. The learned Advocate appearing on behalf of the plaintiff-respondent has referred to the Law and Practice of Injunction by Kerr, 6th. Edition, at Pages 422, 468, 469, 470, 471, 472, 473, 474 and 476. It has been stated that lessor defendant No. 4 could enforce such contract. In view of the principles enunciated by Kerr on injuntion, the transferee from the lessor, i.e. in the present case the plaintiff, can enforce the lessor's rights incorporated in clause 11 of the registered lease (Ext. D). Such restrictive covenant runs with the land and is binding on the assignee as well. The cases in (3) ILR 36 Cal. 702, (4) 12 CLJ 259, (5) 54 CWN 317 and (6) AIR 1976 Allahabad 411 have been cited it has been stated that after the West Bengal Estates Acquisition Act came into force, the State became the landlord. When the lessor landlord's interest vested in the State lessor defendant No.4, can no longer be the landlord and hence, the resolution passed by it in 1957 is not legally binding on anybody including the plaintiff, though he was present at the meeting. Hence the appeal should be dismissed. 7. When the lessor landlord's interest vested in the State lessor defendant No.4, can no longer be the landlord and hence, the resolution passed by it in 1957 is not legally binding on anybody including the plaintiff, though he was present at the meeting. Hence the appeal should be dismissed. 7. The clear case made out in the written statement is that defendant No. 3 is the sister of defendant No.1 and he gifted a portion of the property to her. So, it is not a transfer for consideration within the meaning of section 40 of the Transfer of Property Act. There is nothing to indicate that defendant no. 2 is also a transferee for consideration. Hence, :the arguments advanced on behalf of the appellant, that defendants Nos. 2 and 3 as assignees from defendant No. 1 have no liability, cannot be accepted. Of course, it will be later discussed if the defendants have any liability at all under the law. 8. The question of non-joinder was not pressed in the 1st appellate court. Moreover, in the instant case, the plaintiff as the transferee from the lessor, defendant No.4 seeks to enforce the rights which accrued in favour of the latter on the f00ting of a registered lease. The State is not a necessary party in this suit because it is not necessary to determine any question with respect to the controversy in question in the presence of the State Government. So, the question of non-joinder does not arise. 9. Section 40 of the Transfer of property Act says that the burden of an obligation imposing restrictions on the use of land or any easement thereon can be enforced against a transferee with notice thereof or against a gratuitous transferee. It has already been pointed out that defendant No.2 is a gratuitous transferee. There is also no evidence that defendant No.2 had no notice of the alleged obligation. 10. Of course, it has been contended on behalf of the appellant that registration can be operative as notice only with regard to the title to the property and not regarding such convenant. There is also no evidence that defendant No.2 had no notice of the alleged obligation. 10. Of course, it has been contended on behalf of the appellant that registration can be operative as notice only with regard to the title to the property and not regarding such convenant. But the explanation-I of section 3 of the Transfer of Property Act says that where a registered document has been executed relating to transfer of immovable property and where the transfer is required by law to be effected by a registered document, any person acquiring such property or part thereof shall be deemed to have notice of such instrument from the date of the registration. That is the first point which goes against the appellant. Secondly the construction has not yet been raised. The suit was filed as soon as a portion of the property was excavated from its boundary. After the institution of the suit, defendants Nos. 2 and 3, who are transferees from defendant No.1, have also acquired notice of the alleged covenant. So, this argument will also fail. 11. In the instant case, the alleged covenant embodied in Clause 11 of the registered lease (Ext. D) is not an easement. But it is a personal contract. There was a building Scheme by defendant No.4. On a consideration of that document, it is clear that the object was to enable the lessor, defendant No.4, to protect its own property and to enable it to dispose of it to its best advantage. It is not possible to spell out any intention therefrom that such covenant was embodied for the beneficial enjoyment of such immovable property, within the meaning of section 40 of the Transfer of Property Act. Moreover, Cause 11 of that registered lease (Ext. D) shows that for the violation of the terms of Clause 11, the lease is liable to be forfeited with proper notice. So, that is the second point in favour of the appellant. 12. Then about the resolution made in 1957 and the case of Pinewood Estate v. Levack, (supra). It has been rightly pointed out on behalf of the respondent that when that resolution was adopted in 1957, the lessor landlord's interest vested in the State and hence, such resolution is not binding on anyone including the plaintiff. 13. Nevertheless, one important question of law arises. It has been rightly pointed out on behalf of the respondent that when that resolution was adopted in 1957, the lessor landlord's interest vested in the State and hence, such resolution is not binding on anyone including the plaintiff. 13. Nevertheless, one important question of law arises. The aforesaid covenant is a merely personal and private contract. After the execution of the registered leases in favour of the plaintiff and father of defendant No.1, the Municipal law embodied in the Bengal Municipal Act, 1932, came into force. According to that law, only 4 feet of space has to be left and not 10 feet, as contained in the Clause 11 of the registered lease Ext. D. Such rules were framed according to the provisions of the statute, viz., the Bengal Municipal Act, and hence, the same are statutory rules and they have the force of law. 14. It seems that after that Municipal rule came into force, the personal contract embodied in the registered lease (Ext. D) stood discharged. That contract can no longer be enforced in view of the Law of Frustration embodied in the section 56 of the Indian Contract Act because there is a supervening circumstance over which the aforesaid parties and defendant No.4 have no control. There is no question of estoppel against the statute because the same are statutory rules. Of course no question of public policy is involved. The cases cited on behalf of the respondents are thus of no avail. In that view of the matter, I hold that the plaintiff cannot ask for injunction directing the defendants not to erect any construction leaving an open space of 4 feet as enjoined by the Municipal rules. In that view of the matter, the prayer for injunction must fail and I hold accordingly. 15. The appeal is allowed. The judgment and decree appealed against be hereby set aside and the suit dismissed. There will be no order as to costs.