- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. APPEAL NO.589 OF 1994 IN SUIT NO.891 OF 1970 ... Bomi Munchershaw Mistry of Bombay residing at Maneck-Abad, 26-F, Nepean Sea Road, Bombay- 400 036 ...Appellant (Orig.Plaintiff) v/s. 1. Kesharwani Co.operative Housing Society Ltd. 2. Dadi Sorabji Mistry 3. Adi Maneckshaw Cooper Nos. 2 & 3 being the surviving Trustees of the Deed of Settlement dated 17th March, 1951 4. Shernavaj Munchershaw Mistry 5. Geeta (Alias Dhun) Hiroo Chainani 6. Jasmine Bomi Mistry Nos.4, 5 & 6 residing at Maneck -Abad, 26-F Nepean Sea Road, Bombay- 400 036 ...Respondents (Orig.Defendants) ... - 2 - ... Mr.R.A.Dada, Senior Counsel with Mr.D.J.Khambatta, Mr.Zobair R. Dada, Mr.Misbhah R. Dada i/b M/s.Payne & Co. for the Appellant. Mr.V.A.Thorat, Senior Counsel with Mr.Shailesh Shah, Mr.V.A.Sugdare, Ms.Javer Manniyar and Mr.Darshan Mehta i/b M/s.Dhru Liladhar & Co. for the Respondent No.1. Mr.F.E.Devitre with Mr.Mohan Salian and Mr.Amit Deshpande i/b Gagrats for Respondents Nos. 2 & 3. ... CORAM: D.K.DESHMUKH & J.H.BHATIA, JJ. DATED:22ND AUGUST,2007 JUDGMENT:(PER D.K.DESHMUKH,J.) 1. This Appeal arises from the judgment and decree dated 3-12-1992 passed in Suit No.981 of 1970 filed by the Appellant/Plaintiff. In the suit the Appellant-Plaintiff essentially sought enforcement of Height Restriction Covenant contained in the Conveyance dated 20th March, 1951 whereunder , according to the Appellant-Plaintiff, the conveyors (the owners of the adjoining plots of land) was restrained from building any structure in future - 3 - exceeding certain specified height on his land. By the judgment impugned in the Appeal the learned single Judge has decided most of the issues that arose in the suit in favour of the Appellant-Plaintiff, however, the learned single Judge has in the final decree restricted the operation of the height covenant to only a portion of the land and not the whole of it as contended by the Appellant/Plaintiff and has adopted an interpretation of the covenant which the learned single Judge himself observes is (i) that neither party has espoused atleast seriously. Present Appeal is, therefore limited to challenge to the restricted interpretation placed by the learned single Judge on the covenant limiting its applicability to only that part of the remaining land of the adjoining plot which was vacant as on the date of the conveyance i.e. 20th March, 1951 and not to the whole of it as contended by the Appellant-Plaintiff. 2. The facts that are material and relevant for deciding this Appeal are that one Ratanchand Hirachand was the owner of a fairly large property compromising land and structures thereon which property was acquired by him on 15-5-1947. Certain - 4 - parts and parcels of vacant land from out of this property were transferred under three different transactions dated 28-11-1947, 18-5-1949 and 27-4-1950. After transferring these lands, Ratanchand was left with 6350 sq.yards of land, which had structures on it. The structures included Ratan Villas Bungalow, which was occupied by the owner, servants’ quarters, out-house, guest house, secretary house and garages. an area admeasuring 1000 sq.yards to the West and facing Arabian Sea was required to be kept open as per the Government covenant. By conveyance dated 20th March, 1951 an area admeasuring 565 sq.yards was conveyed by Ratanchand in favour of a private trust, which came into existence because of Indenture of Settlement dated 17th March, 1951. The trustees of this Trust were Munchershaw Mistry, Kekobad Mistry, Maneck Mistry and Khurshad Mistry. 3. The conveyance dated 20th March, 1951 contains various terms, important one being thus: Immediately after the preface comes the paragraph specifying that the vendor Ratanchand owns and possesses a piece or parcel of land or ground situated at Nepean Sea Road the full description whereof is given in the First Schedule which schedule forms a part of the - 5 - conveyance itself. Next, comes the mention of property pointed out by red-coloured boundary line in a plan annexed to the document and marked plan "A". This red marked portion is to be granted or intended to be granted. The price payable by the purchaser viz. the trustees on behalf of the trust is fixed at Rs.103/- per sq.yard. On actual measurement the area is found to measure 565 sq.yards, its total value being Rs.58,195/-. The purchasers are said to have paid to the vendor a sum of Rs.5000/- as earnest money on 26th October, 1950. The conveyance goes on to recite that for the consideration of Rs.58,195/- the vendor has agreed to convey to the purchaser the piece or parcel of land or ground described in the second schedule to the document and delineated on the plan marked "A". The purchasers together with their agents, workmen, servants etc. have been given the right to pass and re-pass from the central passage of the main gate as has been shown in the plan marked "B". This passage is marked in burnt-sienna in plan marked "B". The vendor covenants with the purchasers that he has good right, full power and absolute authority to effect the sale. The covenant as to title is followed by the crucial words in a certain setting. They read as under:- - 6 - "THE VENDOR DOTH HEREBY COVENANT WITH THE PURCHASERS THAT the Vendor, his heirs.... assigns and all persons.... claiming title from him shall, for all times, keep the space on the West of the land agreed to be sold and specified on the plan hereto annexed and marked "B" and thereon surrounded by a red-coloured boundary line unbuilt upon and open to sky AND FURTHER THAT THE VENDOR, his heirs... and assigns and all persons claiming title from him shall not build any structure at any time hereafter higher than the present existing garages on the remaining land of the Vendor nor any structure in front towards the south or on the central passage or in the garden in front of the property now known as RATNA VILLAS BUNGALOW as shown on the plan hereto annexed and marked "B" and thereon marked in burnt-sienna colour..." Then follow the covenants with the vendor promising to allow the purchasers passage through the central passage shown in burnt-sienna colour in plan "B", permitting the purchasers to erect a porch without pillars on the strip of land ten feet wide, and proposed to be kept open by the purchasers on the west of the land and also to build weather sheds not exceeding a certain height and width. The first schedule to the extent relevant is in these words:- "ALL THAT piece or parcel of land admeasuring 6,933 square yards or thereabouts together with the messuages, tenements and buildings standing thereon... which said land and hereditaments and premises form part of a larger property and which larger portion is registered by the Collector of Land Revenue - 7 - under... New No.16989 C.R.R.7141 and New Survey Nos.1/7141 and 2/7141 and Cadastral Survey No.590 of Malabar and Cumballa Hill Division." The Second Schedule, again to the extent relevant says:- "ALL THAT piece or parcel of land or ground admeasuring 565 square yards or thereabouts, forming part of the land described in the First Schedule..." 4. The Plaintiff is admittedly the beneficiary of the Trust. On the land purchased by the trust, a three storeyed building was constructed during the year 1954-55. 5. In August, 1966 a board was put up at the property that remained with Ratanchand proclaiming that the same was with the Defendant No.1-society. During the year 1967-68 the main Bungalow was being demolished by the Defendant No.1-society. It appears that the property that remained with Ratanchand was agreed to be sold to the Defendant No.1-society. Thereafter certain developments took place in relation to allowing of FSI-II, filing of Petition in this court challenging the same. All those developments have been narrated in detail in the judgment by the learned single Judge. But so far as - 8 - this Appeal is concerned, it is not necessary to narrate those developments again, suffice to say that the title in the property that remained with Ratanchand was transferred in favour of Defendant No.1-society. The present suit was filed by the Plaintiff for enforcing height covenant against the Defendant No.1-society. To this suit he had also joined the trustees of the trust which is the owner of the land as also the building standing on the land. 5. The suit was opposed mainly by the Defendant No.1-society. The trustees of the trust had also filed their written statement. 6. The principal defence of the Defendant No.1 society was that the height covenant is limited to the land under the garage and no more. The Defendant No.1-society had also sought rectification of the conveyance, because according to it the height covenant incorporated in the conveyance was a result of mutual mistake. On the basis of the pleadings filed by the parties, the learned single Judge framed following issues. - 9 - ISSUES 1. Whether the plaintiff has any locus standi to file and maintain the suit? 2. Whether defendants 2 to 4 did not take action to enforce covenants against the first defendant because of the bona-fide belief that the height restriction covenant pleaded by the Plaintiff related only to the land under the then existing garages? 3. Does Plaintiff establish that the height restriction clause appearing in the conveyance deed dated 20th March, 1951 covers the entire remaining property of the vendor Ratanchand, excluding that portion of the property which is shown in burnt Sienna and red colours in the plan accompanying the conveyance deed dated 20th march, 1951? 4. Whether defendant No.1 establishes:- (a) that the height restriction covenant restricts construction of a structure on the existing garages and is limited to the land below the existing garages as shown in the plan? (b) that the height restriction covenant is limited to land not built up on at the time of the conveyance. 5. (a)Was there an agreement dated 26-10-1950 between Ratanchand and Maneck Mistry (original Defendant No.3)? (b) Did Maneck Mistry agree to purchase the Maneckabad property from Ratanchand as per the terms contained in the said agreement? (c) Whether the aforesaid agreement of 26-10-1950 was adopted by the trust which trust came into existence by deed of settlement dated 17-3-1951? (d) Was conveyance dated 20th March, 1951 executed pursuant to the aforesaid agreement? - 10 - (e) Was it the real intention of parties to conveyance dated 20th March, 1951 to give effect to the aforesaid agreement? 6. Whether the conduct of the plaintiff has been such as to constitute acquiescence, estoppel and/or waiver dis-entitling him from any of the reliefs claimed in the suit? 7. Has this Court jurisdiction to try the suit notwithstanding Section 94 of the Maharashtra Co.operative Societies Act, 19 60? 8. (a) Does plaintiff establish the ante-dating of the conveyance dated 31-3-1967 the conveyance having been really executed in November, 1967? (b) If yes, what is the effect thereof? 9. (a) Are Zaveri and Lalchand necessary parties to the issue of alleged ante-dating of conveyance dated 31-3-1967? (b) If so, effect? 10. Are the claims in suit within limitation? 11. (a) Is Plaintiff entitled to injunctions mandatory and prohibitory-claimed by him? OR (b) Is plaintiff not entitled to the afore-mentioned injunctions being guilty of gross laches, delay, waiver and estoppel? (c) Whether the physical conditions of the area have so changed as to dis-entitle plaintiff from enforcing the reliefs claimed in the suit? 12. (a) Is the property conveyed to the first defendant divided from that conveyed to the trustees by a red line on the plan annexed to the conveyance and on the site by a wall built prior to 1967 by the trustees? - 11 - (b) If so, whether any property to the east of the boundary line has been conveyed to the first defendant? 13. Whether the declaratory relief claimed by Plaintiff is barred by the Proviso to Section 34 of the Specific relief Act, 1963? 14. (a) Whether the passage figuring in the suit has to be kept fully open and without allocation or reservation of parking space/recreating space by the first defendant? OR (b)Is the only restriction upon the first defendant that of keeping the same unbuilt upon and provide convenient ingress and egress? 15. (a) Does defendant No.1 establish that it entertained and acted upon a bona-fide belief about the height restriction covenant being limited to site under the existing garages? (b) If so, whether enforcement of the height, restriction covenant as suggested by the plaintiff would work great hardship upon the first defendant? (c) if (b) is answered in the affirmative, is Plaintiff not entitled to an injunction? 16. (a) Whether at all material times before the execution of the conveyance, the first defendant made it clear to G.G.Zaveri and Lalchand Hirachand that it was not interested in purchasing the property unless it was entitled to construction on the land a multi-storeyed building upto the available F.S.I. and that G.G.Zaveri and Lalchand Hirachand categorically assured first defendant that the property was suitable for such construction as alleged in para 21(i) of the written statement of the first defendant? (b) Whether but for such an alleged assurance the defendant No.1 would not have entered into an agreement for purchase nor purchased the said property as alleged in para 21(i) of the - 12 - written statement of the first defendant? 17. (a) Whether the covenants sought to be enforced are covenants running with the land and therefore enforceable against defendant No.1? (b) Did defendant 1 have notice of an alleged covenant restricting height restrictions on the entire remaining lands of the vendor? 18. Whether the height restriction covenants contained in the conveyance dated 20th March 1951 are unenforceable because of ambiguity and uncertainty? 19. (a) Whether trustees by word or inaction at all times induced defendant No.1 to believe that the height restriction covenant was limited to the site on which stood the existing garages? (b) Does this disable Plaintiff from seeking to enforce the covenant? 20. Whether enforcing the height restriction covenant in the manner suggested by the plaintiff would confer an unfair advantage to him vis-a-vis the first defendant? 21. Whether enforcing the height restriction covenant in the manner suggested by the Plaintiff would lead to working of unforeseen hardship upon first defendant and no corresponding hardship on the Plaintiff as also the trust? 22. (a) Does defendant No.1 establish that damages would be an adequate relief to compensate plaintiff for infringements complained of? (b) If so, is plaintiff not entitled to the mandatory and prohibitory injunctions claimed in the suit? 23. Whether the height restriction covenant is opposed to public policy as being an unreasonable fetter upon he provision of - 13 - housing? 24. (a) Is the height restriction covenant not registered as required by law? (b) If so, is it enforceable as against defendant No.1? 25. Whether the alleged agreement dated 26-10-1950 stipulated a restriction in regard to height only in relation to the land under the then existing garages? 26. (a) Whether the stipulation in covenant Ex.B viz. "not to build any structure at any time hereafter higher than the present existing garages on the remaining land of the vendor... as shown in the plan hereto annexed and marked B was to give affect to agreed condition No.2 in alleged agreement dated 26-10-1950 i.e. not to "build upper storey on the existing garages" and parties neither intended nor agreed to burden the entire land of the Vendor? (b) Whether in expressing the portions quoted defendant 1 establishes that there was a mutual mistake of parties to the conveyance dated 20-3-1951? (c) Whether as the result of the alleged mutual mistake of the parties the second covenant in the conveyance dated 20th March, 1951 does not give effect to the real agreement and intention of the parties to the conveyance? (d) If so, whether the said second covenant contained in conveyance requires to be rectified in the terms suggested by defendant No.1? 27. Is defendant 1’s claim in regard to rectification within limitation? 28. Is defendant No.1 disabled from getting the relief of rectification for all or any of the reasons advanced by the plaintiff? - 14 - 29. Is the claim for rectification untenable on account of non-joinder of Ratanchand Hirachand’s legal representatives? 30. (a) Whether defendant No.1 establishes that parties to the conveyance never understood and/or interpreted the height restriction covenant in the manner suggested by the Plaintiff in the suit? (b) Whether enforcing the covenant in the manner desired by the plaintiff would defeat the real intention of the parties and would impose uncontemplated hardship upon defendant No.1? (c) If so, effect? 31. Relief and costs Additional issues M-I. Does defendant No.1 prove that the outhouse/guest house in the Ratna Villas compound was till late 1952/early 1953 a structure of ground and one upper floor only? M-II. Does defendant No.1 prove that in late 1952/early 1953 an additional upper floor was put up by Ratanchand to the outhouse, raising its height to 40’ inclusive of the sloping roof and 35’ to 36’ excluding the said sloping roof? M-III(a) Was the trust and its then trustees in the facts mentioned in para 13(b (2) of defendant’s written statement, aware of the addition of a floor and the consequential raising of the height of the outhouse? (b) If so, effect? 7. The learned single Judge divided these issues under six heads. The first head was in relation to the locus of the Plaintiff to institute the suit for - 15 - seeking the relief which he was claiming in the suit. The second head related to the objection that the suit is bad for non-joinder of necessary parties, lack of jurisdiction and defect in the frame of the suit. The third head related to the objection as to limitation. The fourth head related to the issue dealing with the entitlement or disentitlement of the Plaintiff to the main relief linked with the height restriction covenant. The fifth head related to the construction of the height restriction covenant and the defence put up by the Defendant No.1 for rectification of the height covenant and the sixth head related to the minor reliefs. 8. Both the parties produced documents before the court. They also led oral evidence. The learned single Judge decided the suit by his judgment dated 3rd December, 1992. The learned single Judge decided the first head of issue relating to the locus-standi of the Plaintiff in favour of the Plaintiff and discussion regarding that is contained in paragraphs 42 to 52 of the judgment. The learned single Judge held that the Plaintiff has the locus-standi to maintain the suit. The second head relating to non-joinder, lack of jurisdiction and defect in the - 16 - frame of the suit is considered by the learned single Judge in paragraphs 53 to 55 of his judgment. The learned Judge held that the suit does not suffer from the non-joinder of necessary party, there can be no objection to the jurisdiction of the court and there is no defect in the frame of the suit. The third head in relation to the limitation is considered by the learned single Judge in paragraphs 56 to 60 of his judgment. The learned single Judge held that the suit of the Plaintiff is filed within the period of limitation. The fourth head relating to the entitlement or disentitlement of the Plaintiff to the main relief in relation to the height restriction covenant is considered by the learned single Judge in paragraphs 61 to 81 of his judgment. His conclusion is in paragraph 81, which reads as under:- "81. To conclude in the entitlement disentitlement issue, not one factor goes against plaintiff. The normal rule of granting him the declaration and injunction to enforce the covenant will thus prevail." In so far as fifth head of issues regarding construction of the height covenant and the defence - 17 - of the Defendant No.1 that the conveyance is to be rectified in view of the mutual mistake is concerned, it is considered by the learned single Judge from paragraphs 82 to 125. The learned single Judge rejected the construction propounded of the height restriction covenant by the Defendant No.1. The learned single Judge rejected the defence of the Defendant No.1 for rectification of the height covenant because of mutual mistake. The learned single Judge also rejected the construction of the height restriction covenant propounded by the Plaintiff and the learned single Judge accepted that construction of the height restriction covenant which was not propounded by either party. The learned Judge held that the height restriction covenant which applies to remaining land provides that the structure of a height of more than 13 feet cannot be constructed on the land which was open on the date of the conveyance, which land has been described by the learned single Judge as bits and pieces. According to the learned single Judge these bits and pieces are the remaining land. 9. It is only the Plaintiff, who has filed an appeal challenging the judgment of the learned single Judge. - 18 - None of the Defendants have filed any appeal. 10. It may be pointed out here that initially a suit was filed in the city civil court by the Plaintiff on 27-3-1973 seeking declaration that the deed of conveyance dated 31st March, 1967 executed in favour of the Defendant No.1-society is void and an order for cancellation of the said deed on the ground that the said conveyance was ante dated with a view to defraud the revenue and such a document executed in contravention of the public policy liable to be cancelled. That suit was subsequently returned by the city civil court to the Plaintiff. It was presented in this court and was numbered as Suit No.942 of 1973. That suit was heard along with this suit (suit No.891 of 1970) and was decided by the learned Judge by order dated 3rd December, 1992 by passing following order. "Declared that Ex.J. is inoperative and of no effect to the extent it expressly or by implication seeks to whittle down the rights, the owners and beneficiaries of Maneckabad (inclusive of plaintiff) have under Exh.B. Copies of the two conveyances to be annexed herewith. Defendants 1 and 2 shall pay the costs of the plaintiff. These defendants, as also the remaining ones, shall bear their own costs- those of the trustee-defendants 5 and 6 - 19 - to come out of the trust funds. Let a copy of that part of the judgment which deals with defendant 2’s evasion of proper tax on capital gains, be sent to the Commissioner of Income Tax Bombay for such action as may be deemed necessary." 11. The Defendant No.1-society and the vendors did not file any appeal against the decree passed in suit No.891 of 1970 as well as decree passed in suit No.942 of 1973. It appears that the legal representatives of the original vendor had filed an appeal being appeal No.170 of 1994 challenging the judgment and decree passed in Suit No.942 of 1973 to the limited extend. Even that appeal was withdrawn by them. 12. The present Appellant/Plaintiff had filed Appeal No.590 of 1994 challenging the order of the learned single Judge declining to cancel the Deed of Conveyance dated 31-3-1967 executed by the vendor in favour of Defendant No.1-society even after holding that the deed is ante-dated with a view to defraud the revenue. It appears that there were also cross-objections filed by the trustees in the Appeal filed by the legal representatives of the vendor. The Appeal filed by the Appellant and the - 20 - cross-objections were heard together by the Division Bench of this court. By judgment dated 29-6-2005, the Division Bench dismissed the Appeal and cross-objections and confirmed the order passed by the learned single Judge. In paragraph 14 of that judgment the Division Bench has observed that the Defendant No.1-society has accepted the decree passed