BHAGWAT PRASAD Vs. DAMODAR DAS

JUDGEMENT

(1.) THIS is a plaintiff's second appeal against the judgment of the Ist Additional Civil Judge Bulandshahr. The appellant brought a suit in the court of Munsif Bulandshahr for demolition of certain constructions raised by respondents l and 2 in a strip of land in front of their house. The admitted facts of the case are that Vidya Ram in respondent No. 4 was the original owner of a plot of land shown by letters A-B-C-D in the plaint map situated in Dadri town. He divided his plot into five portions, and sold one plot to respondent No. 1, two portions were sold to the plaintiff-appellant and the forth portion was sold to respondent No. 3, while the last portion was retained by respondent No. 4 for himself. To the north of these portions, a strip of land 10 feet in width was provided for the benefit of all the purchasers and according to the plaint case, it was agreed upon that no constructions would be made on this strip of land by any purchaser. Respondents 1 and 2 made certain constructions on the said strip of land including a latrine. The plaintiff, therefore, sued for demolition of these constructions. The suit was contested by respondents 1 and 2 on various grounds. The main ground with which I am concerned in the present appeal is that the contract for leaving the strip of land unbuilt was arrived at between each purchaser on one side and the original owner on the other side and, therefore, the plaintiff had no right to sue. The other pleas raised by the respondents were that the suit was barred by estoppel and acquiescence, and that the respondents had not committed any breach of the contract by making the constructions. Both the courts below have held that although respondents 1 and 2 had made constructions in contravention of the terms of the sale deed, yet the plaintiff had no cause of action and had no right to bring a suit. The other pleas raised by respondents 1 and 2 were, however, repelled. In view of the above mentioned findings, both the Courts below dismissed the suit of the plaintiff and hence this appeal.

(2.) AS already noted above, the only point which is involved in this appeal is whether the plaintiff has any right of suit in these circumstances. For the purposes of this appeal, it may be taken to be admitted that the disputed constructions have been made by respondents 1 and 2 in contravention of the condition mentioned in the sale deed. It does not appear to be disputed that when defendant No. 4 sold the various portions to different purchasers, it was expressly mentioned in the various sale deeds that the purchasers would not make any constructions on the open strip of land, which was to the north of these portions. Defendants 1 and 2 alone were given a right to make certain constructions towards the extreme end of this strip in the eastern portion. However it is admitted that defendants 1 and 2 have constructed a latrine and this is against the condition mentioned in the sale deed. The relevant question which arises for consideration is whether in these circumstances the plaintiff had got any right of suit or not.

(3.) IT was next argued that the transferor could impose a condition in respect of another land belonging to any body else. But this does not appear to be the correct position as will appear from the latter part of this exception. I need not repeat that only the transferor has been given a right to enforce such a direction and he alone will have a remedy in respect of a breach thereof. The purpose of the law is that for the beneficial enjoyment of his other property, the transferor can impose such a condition. I do not think it will be permissible for the transferor to impose a condition for the benefit of another property which he is transferring or is intending to transfer to another person on the same day. If such a condition has been imposed by the transferor for his own benefit, he may no doubt transfer that benefit to another person if the land for the benefit of which such a condition has been imposed is subsequently transferred. But he cannot impose a condition for the benefit of another person. Because in the instant case, the various portions of the property were transferred on the same date, it could not be said that the transferor had imposed a condition and had transferred the same for the benefit of the plaintiff- appellant giving him a right to have a remedy in respect of its breach. The appellant has of course not based his right on any easement or tort. The claim is based only on contract and because the plaintiff- appellant was not a party to that contract between defendant No. 4 and respondents 1 and 2, he cannot have a right to bring a suit for breach of that condition. I was also referred to Section 40 of the Transfer of Property Act. In my opinion this section has no application to the present case, because this section only deals with the rights of a transferee of some land which is burdened with any restrictive covenant. The view of law taken by the courts below thus appears to be correct, and the appeal must fail.