Bombay High Court
The Pashmina Co-Op. Housing Society vs Shri Latif M. Kassambhoy And Ors on 9 January, 2024
Author: Anuja Prabhudessai
Bench: Anuja Prabhudessai
2024:BHC-AS:953
Megha fa_1128_1995.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.1128 OF 1995
The Pashmina Co-operative
Housing Society Ltd., a society
registered under the Maharashtra
Co-operative Societies Act having
its registered office at Plot No.3,
Pashmina G.D., Deshmukh Marg,
(Peddar Road), Bombay-400026 ...Appellant
Versus
1. Latif Mohamed Hassambhoy of
Bombay Indian Inhabitant residing
at Flat No.53, Maker Tower 'H'
Cuffe Parade, Bombay- 400 005.
2. Fazal Rahim Vali Mahomed Peer
Mohammed a trustee of
Currimbhoy Ebrahim Khoja
Orphanage having office at Baug-
E-Karim Salebhoy Karimji
Barodawalla Marg, Altamount,
Road, Bombay- 400026
3. Gulamali M Hassambhoy of
Bombay Indian Inhabitant residing
at S, Dr. Peter Dias Road, 1st floor,
Bandra, Bombay- 400050
4. Shirin Mohammed Hashambhoy
of Bombay Indian Inhabitant
residing at Flat No.53, H, Tower
Cuffe Parade, G.D. Somani Marg,
Bombay-400 005
1/27
::: Uploaded on - 10/01/2024 ::: Downloaded on - 11/01/2024 01:23:53 :::
Megha fa_1128_1995.doc
5. Arnina Mohamed Hashambhoy
of Bombay Indian Inhabitant
residing at Maker Tower, H, Flat
No.S3, G.D. Somani Marg, Cuffe
Parade, Bombay-400 005.
6. Tabrik A. Currimbhoy; Asian
Flavours and Fragrance Private
Limited, C-21, D'D.A. Sheds,
Okhla Industrial Area, Phase-I,
New Delhi-110 020.
7. Afzal H. Dossani, Nalanda 9,
Flat No.A-1, Oshiwara (Off. Four
Bungalow Andheri (West),
Bombay -400 058
8. Saleem F. Fazalbhoy, Amzel
Automotive Ltd., 225-A-Z,
Industrial Estate, Ganpatrao
Kadam Marg, Lower Parel,
Bombay- 400 013.
9. Tarik A. Currimbhoy, residing
at Bakhtawar Narayan Dabholkar
Road, Bombay- 400 006.
10. Habib H. Datoobhoy, 6
Ramesh Niwas, 51-C, Bhulabai
Desai Road.
11. Subhash Amolakchand Gandhi
of Bombay Indian Inhabitant
residing at-4T, Dr. Gopalrao
Deshmukh Marg, Mumbai-
400026 (Amendment carried out
as per Court's order dated
05/06/2002 passedin CA No.2780
2/27
::: Uploaded on - 10/01/2024 ::: Downloaded on - 11/01/2024 01:23:53 :::
Megha fa_1128_1995.doc
of 2001)
12. M/s. Antilia Commercial Pvt.
Ltd., A Company incorporated
under the Companies Act, 1956
with its Registered Office at 82,
Maker Chamber III, Nariman
point, Mumbai -400 021
13. Naseer Munjee
Residing at -20/21, Spenta
Towers, Forietta Street, Cumballa
Hill, Mumbai- 400 026. ...Respondents
WITH
INTERIM APPLICATION NO.18684 OF 2022
IN
FIRST APPEAL NO.1128 OF 1995
Subhash Amolakchand Gandhi ...Applicant
In the matter between
The Pashmina Co-operative Housing
Society Ltd. ...Appellant
Versus
1. Latif Mohamed Hashambhoy and ..Respondents.
Ors.
....
Mr. Rahul Soman with Mr. Amit Mehta, Mr. Vinayak Shukla and Mr. Hitesh
Mishra i/b. Mr. Amit Mehta for the Appellant.
Ms Yogita Deshmukh with Ms Jeenal Upadhyay for Respondent No.11.
Mr. Firdosh Pooniwallla with Ms Sangeeta Batheja, Mr. Gaurav Thakur with
Mr. Gaurav Gangal i/b. M/s. A.S. Dayal & Associates for Respondent No.12.
CORAM : SMT. ANUJA PRABHUDESSAI, J.
DATED : 09th JANUARY, 2024.
JUDGMENT. :-
Megha fa_1128_1995.doc
1. This is an Appeal under Section 96 of the Civil Procedure Code
filed by the Appellant/Defendant challenging the judgment and decree dated
14/09/1995 in S.C. Suit No.3252 of 1981. By the impugned judgment the
learned Judge, City Civil Court, Bombay, partly decreed the suit in terms of
prayer clauses (b) and (c) and thereby directed the Appellant-Society to
demolish RCC columns and structures and construction on plot No.3 bearing
Cadastral Survey No.6/669 of Malabar and Kumbala Hill Division, exceeding
height of 7 feet from the Altamount road level. The Appellant-Society is also
restrained from constructing or attempting to construct any structure
exceeding height of 7 feet above the said road level.
2. Habib Mohammad Hoshambhoy was the Plaintiff No.1 and the
Appellant was the Defendant No.1 in the suit and shall be hereinafter
referred to as the Plaintiff No.1 and the Defendant, respectively. The other
Plaintiffs and Defendants were the Trustees of Currimbhoy Ebrahim Khoja
Orphanage.
3. The brief facts necessary to decide this appeal are as under:-
By Indenture dated 23/05/1890 Dady Manekji Limji, conveyed a plot of land
Megha fa_1128_1995.doc
admeasuring 38000 sq. yards, known as 'Altamount' to Currimji Alibhai, and
retained for himself the remaining plot of land admeasuring 25821 sq. yards
known as 'New Bunce' or 'Mount Petit'. The Indenture dated 22/05/1890
contained a covenant, imposing restrictions on construction of walls, fences,
structures etc in 'New Bunce' exceeding the height of the compound wall of
Altamount, which was 7 feet from the level of existing public road known as
Altamount Road, irrespective of any change in the ownership.
4. By successive Indentures dated 21/04/1909, 08/03/1937 and
24/12/1948 the said plot 'New Bunce' was sold to Jehangir Bomanji Petit,
Provident Investment Company Ltd. and to Sir Jivajirao Scindia, Maharaja of
Gwalior. On or about 02/04/1957 the said land under C.S. No.669 was
subdivided into several plots. The Maharaja of Gwalior conveyed Plot No.6
to Currimbhoy Ebrahim Khoja Orphanage Trust and vide Indenture dated
02/04/1957 Plot Nos.1A, 2, 3, 4, 6A and 7 were conveyed in favour of Habib
Mohamed Hashambhoy, the deceased Plaintiff No.1. Plot No.6A was
reserved for a road and the other plots were conveyed to different persons.
The purchasers of various plots entered into a deed of mutual covenant
dated 02/04/1957, which also contained a covenant restricting construction
Megha fa_1128_1995.doc
exceeding the height of 7 feet from the road level.
5. The Defendant is the owner of Plot No.3, acquired under
Indenture dated 18/02/1968 from M/s. L.K. Marke and Investment Co. Pvt.
Ltd. The Plaintiffs claim that Plot No.3 has a structure of basement with
three upper floors having height upto 7 feet from the road level. It is the
case of the Plaintiffs that the restrictive covenant in Indenture dated
22/05/1890 as well as 02/04/1957 is for the mutual benefit of all the other
plots. It is contended that in view of the said restrictive covenant there can
be no construction on plot No.3 or any part thereof of a height exceeding 7
feet from the level of Altamount road. The grievance of the Plaintiff was
that the Defendant had constructed RCC columns above the existing
structure in plot No.3 with an intention of constructing additional floors
exceeding height of 7 feet from the road level. It is the case of the Plaintiffs
that the said construction, which is in breach of the covenant is likely to
cause damage and invade their proprietary rights. The Plaintiffs therefore
filed the suit for a declaration that there was restrictive negative covenant on
plot No.3. The Plaintiffs also sought demolition of RCC columns and the
structure exceeding the height of 7 feet and further to restrain the Defendant
Megha fa_1128_1995.doc
from carrying out any construction exceeding height of 7 feet from the level
of Altamount road.
6. The Defendant claimed that the covenant in the original
Indenture dated 23/05/1890 was for the benefit of the purchasers of the
Altamount property and not for the benefit of the subdivided plots. The
Defendant claimed that over the years the property Altamount has been
divided in several plots and the identity, ownership and unity of the said
property and surrounding setting has totally changed. The Defendant
further claimed that the plot No.6A was reserved as a road. The Plaintiff
No.1 was required to construct a cement concrete or asphalted road over the
said plot and handover the same to the Municipality to be used as a public
road. The other plots are parallel to plot No.3 and hence any construction
on plot No.3 would not impede use and enjoyment of the said plots in any
manner. The Defendant has also averred that high rise construction and
multi-storied buildings have been constructed in the adjoining plots. The
Defendant claimed that it is entitled to raise additional construction as per
the available FSI and as per the sanctioned plan, in accordance with
Development Control Rules. The Defendant claimed that restriction is
Megha fa_1128_1995.doc
wholly repugnant to the interest created and absolute transfer of the said
plot in its favour. The Defendant also raised a plea of delay and latches.
7. The learned Judge considered the three main issues viz. Issue
Nos.3, 4 and 4A, which are as under :-
Issue No.3:- Whether the present Plaintiff No.1 and Defendant
Nos.2 to 4 are entitled to the suit plot No.6A as the
heirs of the deceased original Plaintiff No.1.
Issue No.4:- Do the Plaintiff prove that the alleged restrictive
covenant runs with the land
Issue No.4A:- Do the Plaintiffs prove that the proposed
construction on plot No.3 by Defendant would affect
the beneficial enjoyment of the Plaintiff in respect of
plot No.6 and 6A.
8. As regards issue no.1, the learned Judge upon considering the
evidence on record and hearing the respective parties observed that
Megha fa_1128_1995.doc
Habibbhoy, the original purchaser, had retained Plot No.6A as well as Plot
Nos.5 and 6 from C.S. No.669, Malabar Kumbala Hill Division. It is held that
Habibbhoy died intestate leaving behind Plaintiff No.1a- Latif and Defendant
Nos.2 to 4 as his heirs. The learned Judge held that unless the private road
under plot No.6A is acquired by BMC, the Plaintiff No.1 and Defendant
Nos.2 to 4 are entitled to claim the said road as their private property.
9. As regards issue nos.4 and 4A, the learned Judge observed that
the Indenture dated 02/04/1957 stipulates that the earlier covenant in
Indenture dated 23/05/1890 imposing restrictions on construction
exceeding height of 7 feet in the said plot would continue to remain in force
for the benefit of the entire property. The Indenture dated 02/04/1957 also
contains a restrictive covenant that no building or structure exceeding height
of 7 feet from the road level would be constructed in Plot No.3. The learned
Judge therefore held that any owner in respect of the entire property can
enforce restrictive covenant against the owner of plot No.3 or any part
thereof. Referring to the inspection note, the learned Judge observed that
the fact that high rise buildings have come in the surrounding area of
Altamount road would not render the covenant inoperative, particularly
Megha fa_1128_1995.doc
considering the fact that the Defendant had not taken steps to get the
restrictive covenant modified or discharged. The learned Judge has held
that the contract between the parties has its own sanctity and the contract
cannot be disturbed unless it is void, invalid or voidable. The learned Judge
further observed that construction in breach of the restrictive covenant
would affect value of the land or mode of occupation of plot No.6 by or on
behalf of the Trust. Based on these findings the learned Judge decreed the
suit and ordered demolition of construction exceeding the height of 7 feet
and further restrained the Defendant from carrying out any construction in
plot No.3, exceeding the height of 7 feet from the road level. Being
aggrieved by this judgment, the Defendant has filed this appeal.
10. The Respondent No.11, who has purchased the plot Nos.6A and
7B during the pendency of the appeal has been impleaded as a party
pursuant to order dated 05/06/2002 in Civil Application No.2780 of 2001.
The Respondent No.11 has also filed an application under Order 41 Rule 27
of the CPC (IA No.18684 of 2022) to produce additional documents viz. (i)
Indenture dated 21/10/1959 between Habib Mohamed Hashimbhoy and
Tulsidas Gandhi in respect of plot No.3, (ii) Deed of conveyance dated
Megha fa_1128_1995.doc
18/02/1969 between M/s. L.K. Marke and Investment Company and the
Defendant -Society, (iii) Deed of conveyance dated 23/10/1997 between the
Plaintiff No.1a -Latif and others and the Respondent No.11 in respect of plot
No.6A and (iv) Deed of Conveyance dated 18/12/1997 and 19/12/1997 in
favour of the Respondent No.11 in respect of plot No.7B, (v) Copy of the
plaint in Regular Civil Suit No.234 of 1998, case status of First Appeal (St)
No.16210 of 2018, order dated 21/03/2017 in Suit No.3753 of 2012 and
status of Writ Petition No.7101 of 2017.
11. Suffice it to say that additional evidence can be adduced in one
of the three situations stipulated in Rule 27 (1) of Order 41 of the CPC. In
the instant case Respondent No.11 has tried to produce sale deeds in his
favour as well as other proceedings initiated by him during the pendency of
this appeal. Needless to state that the Respondent No.11, who has
purchased the property during the pendency of this appeal cannot set up any
independent right or make fresh allegations, which are not based on
pleadings or evidence and or fill up the lacunae at the stage of appeal. The
proceedings filed by him during the pendency of this appeal, are not relevant
to decide the issue involved in the appeal. Furthermore, no explanation has
Megha fa_1128_1995.doc
been offered for not producing the documents at Serial Nos.1 and 2 viz. Sale
deeds dated 21/10/1959 and 18/02/1969 before the Trial Court, despite
ample opportunity. The said documents are not necessary to pronounce the
judgment or any other substantial cause. Under the circumstances, the
application for production of additional documents is hereby dismissed.
12. Now coming to the merits of the matter, Mr. Rahul Soman,
learned counsel for the Defendant submits that in terms of Section 11 of
Transfer of Property Act, there can be no restriction on the enjoyment of
property, which has been transferred to the Defendant absolutely, unless for
the purpose of securing the beneficial enjoyment of another piece of such
property. He submits that Section 40 of the Transfer of Property Act also
presupposes existence of a right to restrain the enjoyment in a particular
manner for the beneficial enjoyment of his own property. It is submitted that
Plot No.6A is a private road and under the deed of mutual covenant dated
02/04/1957 the same was to be constructed and handed over to the
Municipal Corporation. He submits that PW1 as well as PW2 were unable to
demonstrate that any additional construction on the suit plot would
adversely affect the beneficial use of the said plot No. 6A as well as plot
No.6.
Megha fa_1128_1995.doc
13. Learned counsel for the Defendant further submits that the
restrictive covenant was for the benefit of the purchasers of the Altamount
and not for the purchasers of Mount Petit. It is submitted that restricted
covenant cannot be enforced as over the years there has been total change in
the character of the locality. It is submitted that similar suits to enforce
restrictive covenant in respect of plot Nos.4 and 5 have been withdrawn. It
is admitted that these plots, which were subjected to similar restrictive
covenant are situated towards the southern side of plot No.6 and that the
Plaintiffs have not raised objection for construction on plot No.5, which fact
amply proves that enforcement of said restrictive covenant is not necessary
for beneficial enjoyment of the Plaintiffs land. It is submitted that the
learned Judge has not considered the issue of hardship and delay and latches
on the part of the Plaintiffs. Learned counsel for the Defendant submits that
the suit was barred under Section 164 of the Maharashtra Co-operative
Societies Act, for want of notice.
14. Per contra, Ms Yogita Deshmukh, learned counsel for the
Plaintiffs submits that the covenant in Indenture dated 23/05/1890 as well
Megha fa_1128_1995.doc
as 02/04/1957, which runs with the land, restricts construction exceeding
the height of 7 feet from the level of Altamount road. She submits that the
Defendant having purchased Plot No.3 which was subjected to such
restriction is bound by such covenants irrespective of change in ownership or
change in the locality. Consequently the Defendant is not entitled to
construct any structure exceeding the height of 7 feet from the road level
and it cannot be heard to say that such breach would not affect value of the
land or beneficial use of the land.
15. I have perused the records and considered the submissions
advanced by the learned counsel for the respective parties.
16. It is not in dispute that at the time of sale of the portion of land
called Altamount to Currimji Alibhoy vide Indenture dated 23/05/1890, the
vendor-Dadi Manekji Limji had retained a portion of land admeasuring
25281 sq. yards known as New Bunce/Petit Mount and interalia agreed not
to erect any structure on the said portion called New Bunce exceeding height
of western compound wall of Altamount, which was 7 feet high from the
level of public road known as Altamount road. The said restriction was for
Megha fa_1128_1995.doc
the benefit of purchaser of the Altamount plot.
17. It is on record that the property New Bunce, which was subjected
to the restriction, changed multiple hands. By Indenture dated 24/12/1948,
the said property was purchased by Jivajirao Scindia, the Maharaja of
Gwalior. The property was subdivided into several plots and was purchased
by the original Plaintiff No.1 by sale deed dated 02/04/1957. The Deed
dated 02/04/1957 reveals that the plots purchased by the original Plaintiff
No.1 were subjected to several restrictive covenants. As regards Plot Nos.1A
and 7, strips of land at least 15 feet in width each along the eastern
boundary were to be kept open at all times. As regards Plot Nos.3, 4 and 5
the restriction contained in covenant dated 23/05/1890 was continued in as
much as restriction was imposed on construction in the said plots exceeding
height of 7 feet from the Altamount road running along the eastern
boundary. As regards plot No.6A, the same was to be used as a public road.
A condition was imposed on the original Plaintiff-Habib Hashambhoy to
construct and complete within six months at his own expense a 40 feet wide
cement concrete or asphalted road covering the entire area of the said plot,
after demolishing portion of the bungalow situated on the said plot and to
Megha fa_1128_1995.doc
take necessary steps to handover the said road to the Corporation to be used
as a public road. Till such time that the road was handed over to the
Corporation, the original Plaintiff was required to repair and maintain the
same and the right was conferred on the owners and occupiers of the entire
property or any part thereof to use the said road.
18. The Defendant has purchased the Plot No.3 from M/s. L.K. Marke
Investments Co. Ltd. As noted above, the said plot was subjected to
restrictive covenant viz. restriction on construction exceeding 7 feet above
the level of Altamount road running along the eastern boundary of the said
plot. The Plaintiff claims that he is the owner of plot No.6A and the Plaintiff
Nos.3 to 5 and Defendant Nos.5 to 7 are the Trustees of Currimbhoy
Ebrahim Khoja Orphanage located in plot No.6. The grievance of the
plaintiff is that the Defendant has commenced construction in breach of the
said covenant and has sought demolition of the said construction by
enforcing the said negative covenant in Indentures dated 23/05/1890 and
02/04/1957.
19. In the aforesaid facts and circumstances, the question is whether
Megha fa_1128_1995.doc
the Plaintiff, who claims to be the owner of plot No.6A could enforce the
negative covenant and in enforcement of the negative covenant the
mandatory injunction could be issued directing the Defendant to demolish
the RCC columns and the structure exceeding the height of 7 feet and above
the level of the Altamount road.
20. Before considering the evidence on record, it would be
advantageous to refer to Sections 11 and 40 of the Transfer of Property
Act,1882, which are relevant to decide the issue, which reads thus:-
Section 11 -Where, on a transfer of property, an
interest therein is created absolutely in favour of any
person, but the terms of the transfer direct that such
interest shall be applied or enjoyed by her in a
particular manner, he shall be entitled to receive and
dispose of such interest as if there were no such
direction.
Where any such direction is made in respect of one
piece of immovable property for the purpose of
securing the beneficial enjoyment of another piece of
Megha fa_1128_1995.doc
such property, nothing in this section shall be
deemed to affect the right, which the transferror may
have to enforce such direction or any remedy which
he may have in respect of breach thereof."
Section 40 -Where, for the more beneficial
enjoyment of his own immovable property, a third
person has, independently of any interest in the
immovable property of another or of any easement
thereon, a right to restrain the enjoyment in a
particular manner of the latter property, or
Or of obligation annexed to ownership, but not
amounting to interest or easement.- Where a third
person is entitled to the benefit of an obligation
arising out of contract and annexed to the
ownership of immovable property, but not
amounting to an interest therein or easement
thereon,
such right or obligation may be enforced against a
Megha fa_1128_1995.doc
transferee with notice thereof or a gratuitous
transferee of the property affected thereby, but not
against a transferee for consideration and without
notice of the right or obligation, not against such
property in his hands."
21. Section 11 postulates that where property has passed absolutely,
any restriction on the enjoyment of property is void and unenforceable.
Section 11 rests on a principle that when property is transferred absolutely it
must be done with all its legal incidents. The transferee, who has
relinquished his entire interest in the property cannot impose any condition
upon the transferee restraining his enjoyment or disposition of the property.
Such condition, which deprives the property of its legal incidents is
repugnant to law and will be disregarded. The second part of Section 11
however provides for an exception to the general rule and permits restriction
on the enjoyment of property transferred, if such restriction is for the
beneficial enjoyment of the adjoining property of the transferror.
22. The first part of Section 40 of the Transfer of Property Act deals
Megha fa_1128_1995.doc
with enforcement of restrictive and negative covenant by a third party for
the more beneficial enjoyment of his own immovable property. The second
part of Section 40 deals with obligation annexed to the ownership of
immovable property, arising out of contract, which do not amount to interest
in the property or easement therein. Nevertheless, the obligation can be
enforced against the transferee unless he is a transferee for value without
notice.
23. It is thus evident that restriction on the enjoyment of the property
transferred absolutely can only be imposed for the beneficial enjoyment of
another piece of such property. Similarly, Section 40 presupposes existence
of a right to restrain the enjoyment in a particular manner for the beneficial
enjoyment of his own property. In such circumstances, the only question for
consideration is whether the proposed construction on Plot No.3 would
affect the beneficial enjoyment of the Plaintiffs in respect of Plot No.6 and
6A.
24. The plaint and the evidence of the Plaintiff proceeds on the basis
that plot No.6A is owned by the Plaintiff. PW1-Latif has admitted in his
Megha fa_1128_1995.doc
cross examination that the case set up by Habibhoy was restricted to plot
No.6A. The very Indenture dated 02/04/1957, which contains the
restrictive negative covenant sought to be enforced, stipulates that the plot
No.6A was to be used as a public road. The said Deed casts obligation on
Habib Hashombhoy to construct and complete construction of 40 feet wide
concrete or asphalted road covering the entire plot No.6A within a period of
six months and handover the same to the Corporation to be used as a public
road. The said Deed further stipulates that the owners and occupiers of the
entire property, their nominees, servants, agents, visitors and licensees are
entitled to use the said road at all time either as a motorable road or
otherwise.
25. PW1 has admitted in his cross examination that Plot No.6A serves
as a road for all plots in C.S. No.669. He has admitted that from the year
1959 till date plot No.6A is used as a road by the owners /occupiers of all
plots including plot No.3. He has admitted that no construction is
permissible on Plot No.6A which abuts eastern side of plot No.3. He has
stated that he cannot state as to how additional construction of plot No.3
will affect beneficial use and enjoyment of plot No.6A. He has admitted that
Megha fa_1128_1995.doc
plot No.6A being a road, there is no question of any FSI being affected.
26. The terms of the Indenture dated 02/04/1957 as well as the oral
evidence of PW1 amply proves that the Plaintiff does not have exclusive right
over Plot No.6A. The said plot cannot be used for any purpose other than
the road. Hence, any construction in plot No.3 exceeding height of 7 feet
from road level would not in any manner affect beneficial use of this plot as
a road.
27. It is sought to be contended that construction on Plot No.3 in
breach of negative covenant would affect beneficial use of Plot No.6 which is
sold to Currimbhoy Orphanage. It is pertinent to note that PW2-Fazal, who
is one of the Trustees of Currimbhoy Orphanage has deposed that that plot
No.3 is on the south west side of plot No.6 being orphanage property. He
claims that air and light will be obstructed by the subject construction in plot
No.3. It is to be noted that no such plea was raised in the plaint and such
evidence which is beyond pleadings cannot be looked into. Be that as it may,
this witness has admitted that orphanage property receives natural light
from all sides. He was unable to state whether construction of 10 feet high
Megha fa_1128_1995.doc
building in plot No.3 would obstruct a natural light to orphanage. PW2 has
admitted that there is boundary wall between plot No.3 and plot No.6A
which is about 8 to 10 feet in height. He has also admitted that there is
considerable distance between plot No.6 and plot No.3. The evidence of this
witness thus does not sufficiently prove that the construction in plot No.3 is
likely to affect beneficial use of plot No.6 or 6A.
28. PW1 and PW2 have admitted that plot Nos.4 and 5 were also
subjected to similar restrictions. They have admitted that suit to enforce
covenant in respect of plot No.4 was withdrawn. They have admitted that
construction exceeding 7 feet from the road level has come up in plot No.4.
It is also in evidence that construction above 7 feet high from the road level
has come up in Plot No.5 without there being any objection from the Trust.
29. The evidence on record thus amply proves that construction
exceeding height of 7 feet has come up in plot Nos.4 and 5, which were also
subjected to similar restrictions. It is also on record that plot Nos.3, 4, 5 and
6 are in descending level with the plot No.6 at the highest point and the plot
No.3 at the lowest level. The Plaintiff and the Trustees having allowed
Megha fa_1128_1995.doc
construction in plot Nos.4 and 5 in breach of the restrictive covenant cannot
now be heard to say that the construction in plot No.3 would affect
beneficial use of plot No.6.
30. The evidence of these two witnesses also indicate that Plot No.7,
which was retained by Habibbhoy has been acquired by telephone exchange
and remaining part of plot No.6 has been acquired by BEST. PW2 has
admitted that construction has come up in the portion of land acquired by
BEST. He has admitted that number of high rise buildings have come up on
the western side of the orphanage building. He has also admitted that
several high rise buildings have come up on the southern side of the
orphanage, across the Pedder road upto Breach Candy sea face. He has also
admitted that number of high rise buildings have also come up towards
western side of the orphanage. The evidence of DW 2 -Ram Radhakrishna,
an Architect examined by the Defendant also reveals that there are several
high rise buildings towards the southern side of plot No.3. The height of
Kenilworth building, which is towards the western side of plot No.3 is about
30 to 40 feet from the level of Altamount road. He has stated that there is a
multi-storied building on plot No.2, which is also at a higher level.
Megha fa_1128_1995.doc
31. The evidence on record thus reveals that over the years several
high rise buildings have come in the vicinity. The inspection note referred
to by the learned Judge also confirms that several multi-storied buildings
have come up in the surrounding area. It is thus evident that there is total
change in the character of the locality. Hence, the restriction is deemed
obsolete as a result of changes in the character of the property or the
neighbourhood.
32. It need not be emphasized that mandatory injunction, which is a
a discretionary and equitable relief can be granted under Section 39 of the
Specific Relief Act to prevent the breach of an obligation. In the instant
case, learned Judge has granted the relief of mandatory and perpetual
injunction purportedly on the basis of breach of an obligation in the form of
negative restrictive covenant in indentures dated 23.05.1890 and 2.4.1957.
It is true that plot no.3 is subjected to negative restrictive covenant. Suffice
it to say that such restriction or obligation is not absolute, but has to result in
impediment of the beneficial use or enjoyment of the land. In the instant
case, the Defendant, who is the absolute owner of the plot No.3 had
Megha fa_1128_1995.doc
undertaken construction in his plot as per the plans sanctioned by the
Corporation. The Plaintiffs have failed to prove that the construction
infringes their rights or impedes the beneficial use or enjoyment of their
land. It is also to be noted that the Plaintiffs had approached the Court after
considerable delay. Furthermore, the Plaintiff No.1 having failed to comply
with the positive covenant under the Indenture dated 02/04/1957, viz.
construction of road in Plot No.6A and handing over the same to the
Corporation, cannot claim equity in his favour. In such fact situation the
learned Judge has grossly erred in granting mandatory and perpetual
injunction in favour of the Plaintiff, thereby depriving the Defendants from
enjoying their right to the property with all its legal incidents. Hence, the
impugned judgment cannot be sustained.
33. Under the circumstances and in view of discussion supra, the
Appeal is allowed. The impugned judgment and decree dated 14/09/1995 in
S.C. Suit No.3252 of 1981 is set aside. Consequently, the suit stands
dismissed with no order as to costs.
34. Learned counsel for the Respondent states that the Plaintiffs wish
Megha fa_1128_1995.doc
to challenge the judgment before the Hon'ble Supreme Court. In the light of
the said statement, the relief of perpetual injunction in terms of prayer
clause (c) which was operating in favour of the Plaintiffs is extended for a
period of four weeks.
(SMT. ANUJA PRABHUDESSAI, J.)
