JUDGMENT
A.K. Shrivastava, J.
1. By this appeal preferred under Section 100, CPC, the plaintiffs have challenged the judgment and decree of the trial Court dismissing his suit and affirmed by the first appellate Court.
2. A suit for declaration and injunction has been filed by the plaintiffs that the ‘blue print’ of shopping complex which was shown to him by defendants Nos. 1, 2 and 3 be constructed in the Mission Colony, Damoh Situated at Sagar-Jabalpur Road and the shops be allotted to them. According to the plaintiffs except the suit place, the defendants should not construct the shopping complex at any other place.
3. According to the plaintiffs the defendants advertised an advertisement that they are going to construct a shopping complex and the intended purchaser may submit applications for the allotment of the shops. The plaintiffs approached Assistant Engineer N.K. Deshpande who told them that the proposed shopping complex shall be constructed at the place which has been indicated hereinabove and, accordingly, the plaintiffs deposited the amount and when the construction was raised, it was found by them the same is being raised at some other place. Hence a suit for declaration and injunction has been filed by the plaintiffs that the place which was shown to them in, the ‘blue map’, the defendants be directed to construct the shopping complex at that place and shops be allotted to the plaintiffs. The plaintiffs further prayed that defendants be restrained from raising construction of shopping complex at any other place except at the place which was shown to them.
4. The suit was resisted by the defendants and the Trial Court did not find any merit in the suit hence dismissed it. The appeal which was preferred was also dismissed. Hence this appeal.
5. In a suit for declaration of any right, the plaintiff has to plead and prove any entitlement of his any legal character or to any right as to any property against any person denying or interested to deny his title to such character or right and thereafter the discretion has to be exercised by the court to make a declaration that the plaintiffs are so entitled.
6. On going through the pleadings made in the plaint, it is gathered that it was orally told by the Assistant Engineer of the defendants that the shopping complex would be constructed at a particular place but no ‘blue print’, plan and estimates were supplied to the plaintiffs when they obtained the requisite form and deposited the amount of Rs. 10,000/- for their registration. Thus, according to the plaintiffs’ own showing, no particular description was provided to them along with the requisite form that at which place the shopping complex would be constructed.
7. Though the legislature has not permitted this Court to re-appreciate the evidence and to enter into findings of the fact of the Courts below, but, on going through para 8 of the judgment passed by the first appellate Court, it is revealed that Santosh Bharti, who is one of the plaintiffs, himself has admitted that in the advertisement no description was given that at which locality, the shopping complex would be constructed and thus this piece of the evidence of plaintiff jolts their entire case. The learned first appellate Court in paras 7 to 16 has discussed each and every aspect of the mat-ter and by considering the various provisions of the Specific Relief Act, came to hold that the suit of the plaintiffs cannot be decreed. Merely because the Assistant Engineer N.K. Deshpande assured the plaintiffs that the shopping complex shall be constructed at a particular place, would not mean that the defendants are bound to construct the shops at a particular place, particularly when it has not been demonstrated by the plaintiffs that the said Assistant Engineer was authorised to give such assurance on behalf of the defendants. No agreement was executed between the plaintiffs and the defendants that at a particular place, shopping complex would be constructed. If such an agreement would have been executed in that case it could have been thought that the plaintiffs may have some right, but in absence of any such agreement and particularly when the suit of plaintiffs is not filed for specific performance of contract, the present suit for a particular type of declaration and injunction is not maintainable.
8. It has been submitted by the learned counsel for the appellants that the Assistant Engineer gave oral proposal to the plaintiffs that the shopping complex would be constructed at a particular place and it was accepted by them and, thus, there was a contract and it should be given effect to. I am afraid of such submission. Firstly, in such type of matter’ there cannot be any oral proposal and secondly the plaintiff has not pleaded and proved that Shri N.K. Deshpande, Assistant Engineer, was authorised on behalf of the defendants to give such type of oral proposal. Even if, for the sake of argument, it is held that there was some agreement between the parties and there had been a breach of contract, in my opinion, a suit for specific performance ought to have been filed by the plaintiffs. But, definitely the present type of declaration and decree of injunction which the plaintiffs are seeking, cannot be allowed to them.
9. Learned counsel further argued that the defendants by their conduct are estopped and under Section 115 of the Evidence Act they are bound to construct the shopping complex at the place shown to the plaintiffs. I am afraid of such submission. Firstly because that the said Deshpande. Assistant Engineer, has not been impleaded as defendant and secondly it is not the case of the plaintiffs that any of the defendants by his declaration act or omission intentionally caused or permitted the plaintiffs to believe that the shopping complex would be constructed at a particular place and in accordance with that belief the plaintiffs acted upon. Thus, in my opinion, the provisions of Section 115 of the Evidence Act are not at all attracted in the present case. More over this plea has been raised for the first time in this second appeal, which is not at all permissible while exercising the jurisdiction under Section 100, CPC.
10. In this view of the matter, as no substantial question of law is involved in this appeal, the same is hereby dismissed in limine.