Dhannu Lal Marwari vs Bansidhar Marwari

Das, J.—In this suit the plaintiff claims a mandatory injunction in regard to certain windows and apertures opened by the defendant in a building which he has recently constructed. The plaintiff bases his claim on para. 7 of an ekrarnama executed in his favour by one. Ghanshyam Das. That paragraph provided as follows :

That amongst us, the executants, it has. been settled that whatever nalas and windows there are to the east of brick-built house: would stand as they are; now there are three rooms on the first floor and each of these contains one window and the window in the northern room has got one tat (protector from rains) and in two rooms out of three in the ground floor there are mokhas (appertures. in the wall to let in light); these mokhast and windows would remain in fact, and there are four nalas in the ground floor and four nalas in the roof of the first floor are in existence and will remain in tact. In case the present house is pulled down and a new one erected, in its place the second party will have the right to maintain only those openings and not more.

Ghanshyam was the second party referred to in the agreement. It appears that a certain plot of land with a building thereon belonged to Ghanshyam and the plaintiff Dhannulal Marwari. There were disputes and differences between them and those disputes were settled by a compromise by which a portion of the land together with a house that stood thereon was awarded to Ghanshyam and a piece of parti land to the east of the house just referred to was allotted to Dhannulal. It is clear that the covenant in question was a restrictive covenant for the beneficial enjoyment of that piece of land which was retained by the plaintiff. If nothing else is established in the case the plaintiff is entitled to enforce that covenant as against Ghanshyam or as against any one who takes the house from Ghanshyam with notice of the restrictive covenant.

On 28th January 1918 Ghanshyam conveyed the house to the west of the vacant plot of land to the defendant and the plaintiff alleges that the defendant demolished the old house which was allotted to Ghanshyam and erected a new house and opened four windows on the ground floor and three windows and 21 apertures on the first floor. It appears that in the old house there were no windows at all on the ground floor and there were three windows only on the first floor.

The suit was resisted by the defendant on various grounds, one of these grounds being that he did not take the conveyance with notice of the restrictive covenant. This issue has been found against him and it is not contended before us on his behalf that the Courts below erred in coming to the conclusion that the defendant had notice of the restrictive covenant. The first Court dismissed the suit substantially on the ground that the plaintiff was unable to show "how they" that is to say the the windows and apertures "have been built in contravention of the terms of the agreement and if so how many of them have bean so built."

The conclusion in my opinion is not a (Correct one; and it must be said that the learned Additional Subordinate Judge bases his judgment on grounds other than those advanced by the learned Munsif. The learned Additional Subordinate Judge seems to have taken the view:

that the restrictions placed upon the respondent''s vendor in the matter of opening more windows or mokhas in case of new construction were against the provisions of the Transfer of Property Act, and it was not possible to follow them to the letter.

Unfortunately the learned Subordinate Judge does not say which are the provisions of the Transfer of Property Act that are contravened. As a matter of fact Section 11 and Section 40, T. P. Act, are quite clear. It is quite true that the general rule adopted in Section 11 is that restrictioas repugnant to interests created by a transfer may be wholly ignored; but para. 2, Section 11 enacts that:

nothing in this section shall be deemed to affect the right to restrain, for the beneficial enjoyment of one piece of immovable property, the enjoyment of another piece of such property, or to compel the enjoyment thereof in a particular manner.

Now the effect of Section 11, T.P. Act, appears to be this that when a min relinquishes his entire interest in the property, reserving no right over in for himself or any other person, he cannot. at the same time impose upon his transferee any condition restraining his enjoyment or disposition of the property. Such a condition restraining the enjoyment of the property is repugnant to law and will not be regarded; but where for the beneficial enjoyment of one piece of immovable property the vendor stipulates that the vendee should enjoy another piece of such property in a particular manner, the case stands on a different footing. Section 40 provides that an obligation of this nature, that is, to say, an obligation arising out of a restrictive covenant, may be enforce against a 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, nor against such property in his hands. It seems to me, therefore, that the view taken by the learned Additional Subordinate Judge on this point is not correct.

But the learned Subordinate Judge is on stronger grounds in dismissing the suit on the finding that the plaintiff has lost his right to the equitable relief which he claims in this action by acquiescing in what has actually been done by the defendant. On this point, the learned Judge says as follows:

I do not see why the appellant should not have asked for this "namely for the relief which he now claims in the action" as soon as the construction of windows in excess of the number mentioned in the ekrarnama had begun. He was silently keeping queit till the building was completed and did not take any steps to prevent such course by injunction. As he stood by and allowed construction of the windows and openings without any objection he has lost the right which he might have had and the Court would not grant him'' any relief.

It is obvious that this finding being a finding of fact must be regarded by us as conclusive. Mr. Khurshed Husnain contended before us that as the defendant knew perfectly well that he was not entitled to open so many windows and apertures in his new house, the doctrine of acquiescence has no application. I do not agree with this argument. The case of Sayers v. Gollyer [1885] 28 Ch. 1103 is a conclusive answer to the argument. In that case the defendant had expressly covenanted with the vendors and with the purchasers of the other lots of land sold by the owners of the estate to different persona not to build a shop on his land, nor to use his house as a shop or to carry on any trade thereon. It is impossible to contend that the defendant did not know of the covenant into which he had expressly entered, but nevertheless he was using his house as a beer shop and the plaintiff who was the purchaser of one of the lots brought an action against the defendant on the covenant. The question which was argued on behalf of the defendant was whether the plaintiff had lost the right to enforce the covenant either by injunction or damages through his acquiescence in the proceedings of the defendant. Bowen, L. J., in dealing with the point said:

that a person who is entitled to the benefit of a restrictive covenant may, by his conduct or omissions, put himself in such an altered relation to the person bound by it as makes it manifestly unjust for him to ask a Court to insist on its enforcement by injection.

Substantially the same view was taken by Fry, L.J, Our own statute makes the position perfectly clear. Section 55, Specific Relief Act, gives a discretion to a Court to grant a mandatory injunction to compel performance of certain acts. Section 56 provides that an injunction cannot be granted when, amongst other grounds, the conduct of the applicant or his agent has been such as to disentitle him to the assistance of the Court. The learned Judge in the lower appellate Court has taken the view that the case is not one in which he should exercise his discretion in favour of the plaintiff. In my view the finding of the learned Judge on this point is conclusive so far as this Court is concerned.

The appeal fails and must be dismissed with costs.

Kulwant Sahay, J.

I agree