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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ANUJA PRABHUDESSAI, J.
The Pashmina Co-operative Housing Society Ltd. - Appellant
Versus
Latif Mohamed Hassambhoy of Bombay Indian Inhabitant and Ors. - Respondents
First Appeal No.1128 Of 1995 with Interim Application No.18684 Of 2022
Decided On : 09-01-2024
Restrictive Covenant - Property Dispute - Transfer of Property Act,1882, Sections 11 and 40 - The court discussed the restrictive covenants in the Indentures dated 23/05/1890 and 02/04/1957, and their enforceability. It highlighted the legal principles of Section 11 and 40 of the Transfer of Property Act, emphasizing the need for restrictions to be for the beneficial enjoyment of the adjoining property and the limitations on enforcing such restrictions. The judgment allowed the appeal, setting aside the previous judgment and decree.
Fact of the Case:
The case involved a property dispute where the Plaintiff sought to enforce a restrictive covenant on a plot of land, restricting construction exceeding 7 feet from the road level. The Defendant claimed that the covenant was not enforceable due to changes in the locality and the character of the property.
Finding of the Court:
The court found that the Plaintiff failed to prove that the proposed construction on the Defendant's plot would affect the beneficial enjoyment of the Plaintiff's property. It also noted that the Plaintiff had delayed in approaching the court and had failed to comply with a positive covenant under the Indenture dated 02/04/1957.
Issues: The main issues were whether the restrictive covenant could be enforced, whether the proposed construction would affect the Plaintiff's property, and whether the suit was barred under the Maharashtra Co-operative Societies Act.
Ratio Decidendi: The court emphasized the legal principles of Sections 11 and 40 of the Transfer of Property Act, highlighting the need for restrictions to be for the beneficial enjoyment of the adjoining property and the limitations on enforcing such restrictions. It also considered the delay in approaching the court and the Plaintiff's failure to comply with a positive covenant.
Final Decision: The appeal was allowed, setting aside the previous judgment and decree, and the suit was dismissed with no order as to costs.
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’ 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 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 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 pro
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The court affirmed that encroachment on public property negates claims of ownership and that plaintiffs must approach courts with transparent evidence.
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The court established that an appellate authority cannot adjudicate on matters that are sub judice in a civil court, and that strict adherence to procedural timelines is crucial in property disputes.
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