Restrictive covenants must not impede the beneficial enjoyment of property; plaintiffs failed to prove adverse effects from the defendant's construction.

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 propert