JUDGMENT :

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 admeasuring 38000 sq. yards, known as ‘Altamount