{"id":268043,"date":"2009-03-13T00:00:00","date_gmt":"2009-03-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/princy-vs-jose-on-13-march-2009-2"},"modified":"2015-08-25T12:39:53","modified_gmt":"2015-08-25T07:09:53","slug":"princy-vs-jose-on-13-march-2009-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/princy-vs-jose-on-13-march-2009-2","title":{"rendered":"Princy vs Jose on 13 March, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
Princy vs Jose on 13 March, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nSA.No. 515 of 2000(C)\n\n\n\n1. PRINCY\n                      ...  Petitioner\n\n                        Vs\n\n1. JOSE\n                       ...       Respondent\n\n                For Petitioner  :SRI.RENJITH THAMPAN\n\n                For Respondent  :SRI.P.R.VENKETESH\n\nThe Hon'ble MR. Justice THOMAS P.JOSEPH\n\n Dated :13\/03\/2009\n\n O R D E R\n                                                                        \"C.R.\"\n                           THOMAS P.JOSEPH, J.\n               = = = = = = = = = = = = = = = = = = = = = = = =\n                              S.A. No.515 of 2000\n                                       AND\n                              S.A. No.920 of 2000\n                = = = = = = = = = = = = = = = = = = = = = = = = =\n                Dated this the 13th        day of March,    2009\n\n                                J U D G M E N T\n<\/pre>\n
                                ———————-\n<\/p>\n
\n     The substantial questions of law raised for a decision are as to<\/p>\n
the  character and enforceability of a covenant by the assignee of<\/p>\n
the covenantee.\n<\/p>\n
     2.     Short facts necessary for a decision              of these second<\/p>\n
appeals are: The building, portions of which are involved in these<\/p>\n
appeals together with the land whereon it was               situated originally<\/p>\n
belonged to Cherchi (hereinafter called “the covenantee”). She, as<\/p>\n
per Ext.A1, assignment deed No.2449\/1968 dated 13.8.1968 sold the<\/p>\n
southern half of the building and land to Enasu with a covenant<\/p>\n
which is as follows:\n<\/p>\n
\n
                  “…though one half of the northern wall of<\/p>\n
           the building in the schedule property is included<\/p>\n
           in this (deed), in case of reconstruction of the<\/p>\n
           said building (in the portion assigned under<\/p>\n
           Ext.A1), separate wall shall be constructed in<\/p>\n
           such a way as not to cause damage to the<\/p>\n
           northern wall and leaving a space of 12 fingers<\/p>\n
           towards south from the said wall….”<\/p>\n<\/blockquote>\n
S.A. Nos.515 & 920 of 2000
\n                                  -: 2 :-<\/span><\/p>\n
On the same day the northern portion of the building and the land was<\/p>\n
assigned to the respondent\/defendant         as per   assignment deed<\/p>\n
No.2450\/1968 (the date mentioned at the beginning of the document<\/p>\n
is 18.3.1968 which is obviously a mistake), the certified copy of which<\/p>\n
is Ext.A2.   A similar covenant as provided in Ext.A1 and extracted<\/p>\n
above was made in Ext.A2 also directing the respondent to leave the<\/p>\n
same space towards north from the common wall.       Enasu who got the<\/p>\n
southern portion of the building and land as per Ext.A1 assigned that<\/p>\n
portion to John as per Ext.A3, assignment deed dated 7.7.1973. John<\/p>\n
reconstructed the building in the southern portion complying with the<\/p>\n
covenant contained in Exts.A1 and A3 and assigned the reconstructed<\/p>\n
building and land to the deceased first appellant (first plaintiff) as per<\/p>\n
Ext.A4, assignment deed dated 29.5.1974. Second appellant\/second<\/p>\n
plaintiff is the husband of the first appellant.   While they were in<\/p>\n
possession and enjoyment of the building and land as per Ext.A4,<\/p>\n
respondent started reconstructing his portion of the building on the<\/p>\n
northern portion. Appellant Nos.1 and 2 instituted the suit for a decree<\/p>\n
for prohibitory injunction to restrain the respondent from constructing<\/p>\n
the building without leaving space at a width of 12 fingers as directed<\/p>\n
in Ext.A2, the assignment deed in his favour. No interim order was<\/p>\n
passed in the suit. Even when the suit was pending, respondent<\/p>\n
S.A. Nos.515 & 920 of 2000
\n                                  -: 3 :-<\/span><\/p>\n
proceeded with the construction.         Thereon plaint was amended<\/p>\n
incorporating a prayer for mandatory injunction to direct the<\/p>\n
respondent to remove the portion of the building allegedly constructed<\/p>\n
with the space of 12 fingers from the boundary wall.     Learned Munsiff<\/p>\n
held that the intention of the covenantee was          to safeguard the<\/p>\n
remaining portion of the building, there was no intention to retain the<\/p>\n
common wall for ever without any support and without making it as<\/p>\n
part of the building and since both sides have reconstructed the<\/p>\n
portion of the building in the lands assigned to them it is not necessary<\/p>\n
to leave any space as per the covenant.            However, since the<\/p>\n
respondent was found to have trespassed into the land belonging to<\/p>\n
the appellant,         mandatory injunction was granted directing the<\/p>\n
respondent to demolish the construction he made within the southern<\/p>\n
half of the common wall. Respondent took up the matter in appeal.<\/p>\n
Appellant Nos.1 and 2 preferred Cross Appeal in so far as         learned<\/p>\n
Munsiff refused to enforce the covenant.       The first appellate court<\/p>\n
while agreeing with the learned Munsiff as to the intention of the<\/p>\n
covenantee, held that as the covenantee (transferor) has assigned the<\/p>\n
remaining portion of the property without leaving anything to be<\/p>\n
enjoyed further, the assignee from the covenantee cannot enforce the<\/p>\n
covenant. The first appellate court also held that the common wall<\/p>\n
S.A. Nos.515 & 920 of 2000
\n                                 -: 4 :-<\/span><\/p>\n
became the exclusive wall of the respondent, the allegation of<\/p>\n
trespass is not proved and accordingly allowed the appeal, dismissed<\/p>\n
the cross appeal and non-suited appellant Nos.1 and 2. Hence these<\/p>\n
second appeals.\n<\/p>\n
      3.     Learned counsel for appellants contended that the view<\/p>\n
taken by the first appellate court that the covenant is not enforceable<\/p>\n
by   the assignee of the covenantee is not sustainable in law and<\/p>\n
placed reliance on the decisions in Leela v. Ambujakshy<\/a> (1989<\/p>\n
(2) KLT 142) and Joseph George v. Chacko Thomas<\/a> (1992<\/p>\n
(1) KLT 6). Learned counsel also assailed the finding of the courts<\/p>\n
below as to the interpretation given to the covenants in Exts.A1 and<\/p>\n
A2 and the finding of the first appellate court that the common wall<\/p>\n
now exclusively belongs to the respondent and that the trespass<\/p>\n
alleged is not proved.\n<\/p>\n
      4.     In Ext.A3, assignment deed in favour of John executed by<\/p>\n
Enasu (the assignee under Ext.A1), it is stated that in case the<\/p>\n
assignee (John) is reconstructing the building (in the southern portion),<\/p>\n
he shall comply with the covenant contained in Ext.A1. Admittedly,<\/p>\n
John reconstructed the building complying with the covenant in Ext.A1<\/p>\n
in the southern portion he took      as per Ext.A3 and later sold to<\/p>\n
appellant No.1 as per Ext.A4. Exhibits A1, A3 and A4 which conferred<\/p>\n
S.A. Nos.515 & 920 of 2000
\n                                  -: 5 :-<\/span><\/p>\n
title and possession of the southern portion of the building on<\/p>\n
appellant No.1, and her assignors there is no specific assignment of<\/p>\n
the benefit of the covenant imposed on the respondent as per Ext.A2.<\/p>\n
Learned counsel for the respondent therefore argued that the<\/p>\n
covenant in Ext.A2 being positive in character, cannot be enforced by<\/p>\n
an   assignee from the covenantee since according to the learned<\/p>\n
counsel, a positive covenant though for the beneficial enjoyment of the<\/p>\n
property of the transferor (covenantee) binds only the parties to the<\/p>\n
contract (Ext.A2 in this case).     The character of the covenant in<\/p>\n
Ext.A2 is required to be decided.\n<\/p>\n
      5.     Tulk v. Moxhay (1848) 2 Ph. 774) = (1843-60) All E.R.<\/p>\n
9), is one of the earliest decisions   concerning the nature, character<\/p>\n
and enforceability of covenants. A covenant between vendor and<\/p>\n
purchaser on the sale of the land that the purchaser and his assigns<\/p>\n
shall use or abstain from using the land in a particular way was held to<\/p>\n
be    enforceable in equity against all subsequent purchasers with<\/p>\n
notice.     It was then thought whether the rule laid down in Tulk’s<\/p>\n
case as to the enforceability of covenant against an assignee of the<\/p>\n
covenanter on the doctrine of equity applied regardless of whether<\/p>\n
the covenant is affirmative or restrictive (negative) in character. The<\/p>\n
question was answered in the decisions in Haywood v. The<\/p>\n
S.A. Nos.515 & 920 of 2000
\n                                   -: 6 :-<\/span><\/p>\n
Brumswick Permanent Benefit Building Society (1881) 8<\/p>\n
QBD 403), London and South Western Railway Co. v.<\/p>\n
Gomm (1882) 20 Ch.D. 562) and Austerberry v. Corporation<\/p>\n
of Ordham (1885) 29 Ch.D. 750). Brett, L.J. said in Haywood’s<\/p>\n
case on the rule in Tulk’s case that:\n<\/p>\n
\n
                   “….it seems to me that the case decided<\/p>\n
             that an assignee taking the land subject to a<\/p>\n
             certain class of covenants is bound by such<\/p>\n
             covenants if he has notice of them, and that the<\/p>\n
             class of covenants comprehended within the<\/p>\n
             rule is that covenants restricting the mode of<\/p>\n
             using the land only will be enforced……”<\/p>\n<\/blockquote>\n
                                     (emphasis supplied)<\/p>\n
Jessel M.R. said in London and South Western Railway Company’s<\/p>\n
case that:\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
                   “….the covenant in Tulk v. Moxhay was<\/p>\n
             affirmative in terms, but was held by the court<\/p>\n
             to imply a negative. Where there is a negative<\/p>\n
             covenant      expressed   or  implied,    as, for<\/p>\n
             instance, not to build so as to obstruct a view,<\/p>\n
             or not to use a piece of land otherwise then as<\/p>\n
S.A. Nos.515 & 920 of 2000
\n                                   -: 7 :-<\/span><\/p>\n
             a garden, the court interferes on one or other<\/p>\n
             of the above grounds….”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
Sir James Hannen said in the same case that the decision in<\/p>\n
Haywood’s case (referred supra),<\/p>\n
                   “put a wholesome restriction upon the<\/p>\n
             application of Tulk v. Moxhay by laying down<\/p>\n
             this rule that is only applies to restrictive<\/p>\n
             covenants, and does not apply to an affirmative<\/p>\n
             covenant such as …..”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
Austerberry’s case also held that the doctrine in Tulk v. Moxhay is<\/p>\n
limited to restrictive (negative) covenants. The Indian law follows the<\/p>\n
law in England relating to enforceability of covenants as laid down in<\/p>\n
Tulk v. Moxhay and the later decisions.        Sections 11<\/a> and 40<\/a> of the<\/p>\n
Transfer of Property Act (for short, “the Act”) deal with enforcement of<\/p>\n
covenants.\n<\/p>\n
      6.     Section 11<\/a> of the Act reads thus:\n<\/p>\n
\n
                   “11. Restriction        repugnant       to<\/p>\n
             interest created.- Where, on a transfer of<\/p>\n
             property,    an interest    therein is   created<\/p>\n
S.A. Nos.515 & 920 of 2000
\n                                  -: 8 :-<\/span><\/p>\n
             absolutely in favour of any person, but the<\/p>\n
             terms of the transfer direct that such interest<\/p>\n
             shall be applied or enjoyed by him in a<\/p>\n
             particular manner, he shall be entitled to<\/p>\n
             receive and dispose of such interest as if there<\/p>\n
             were no such direction.\n<\/p>\n
                   Where any such direction has been made<\/p>\n
             in respect of one piece of immovable property<\/p>\n
             for the purpose of securing the beneficial<\/p>\n
             enjoyment of another piece of such property,<\/p>\n
             nothing in this section shall be    deemed to<\/p>\n
             affect any right which the transferor may have<\/p>\n
             to enforce such direction or any remedy which<\/p>\n
             he may have in respect of a breach thereof”.\n<\/p>\n
\n
Section 40<\/a> of the Act reads thus:\n<\/p>\n
\n
                   “40. Burden of obligation imposing<\/p>\n
             restriction on use of land.-Where, for the<\/p>\n
             more     beneficial enjoyment     of  his   own<\/p>\n
             immovable property, a third person has,<\/p>\n
             independently of any interest in the immovable<\/p>\n
             property of another or of any easement<\/p>\n
             thereon, a right to restrain the enjoyment in a<\/p>\n
             particular manner of the latter property, or<\/p>\n
                   Where a third person is entitled to the<\/p>\n
             benefit of an obligation arising out of contract<\/p>\n
S.A. Nos.515 & 920 of 2000
\n                                  -: 9 :-<\/span><\/p>\n
             and annexed to the ownership of immovable<\/p>\n
             property, but not amounting to an interest<\/p>\n
             therein or easement thereon, such right or<\/p>\n
             obligation   may    be   enforced    against  a<\/p>\n
             transferee with notice thereof or a gratuitous<\/p>\n
             transferee of the property affected thereby, but<\/p>\n
             not against a transferee for consideration and<\/p>\n
             without notice of the right or obligation, nor<\/p>\n
             against such property in his hands”.<\/p>\n<\/blockquote>\n
Section 11<\/a> refers to positive        covenants and Sec.40, negative<\/p>\n
covenants. Even between the transferor and transferee a condition<\/p>\n
that the property would be enjoyed by the transferee in a particular<\/p>\n
manner would be void. But such a restriction will be saved if it is for<\/p>\n
the beneficial enjoyment of the property retained by the transferor, by<\/p>\n
the second part of Sec.11. In Leela v. Ambujakshy<\/a> (referred supra)<\/p>\n
this Court considered the scope of application of a positive covenant<\/p>\n
under the second part of Sec.11 of the Act. In Joseph George v.<\/p>\n
Chacko Thomas<\/a> (referred supra) the Division Bench ruled that a<\/p>\n
positive covenant for the beneficial enjoyment of the property of the<\/p>\n
transferor is saved only as between the parties to the transfer as per<\/p>\n
Sec.11, but a negative covenant for such beneficial enjoyment would<\/p>\n
be binding not only the original parties but even on subsequent<\/p>\n
S.A. Nos.515 & 920 of 2000
\n                                 -: 10 :-<\/span><\/p>\n
transferees.\n<\/p>\n
      7.     Are the covenants provided in Exts.A1 and A2 and<\/p>\n
extracted above, negative in character? The covenant is that while<\/p>\n
reconstructing the building, the assignees (covenanters) of Exts.A1<\/p>\n
and A2 shall leave a space having width of 12 fingers to their<\/p>\n
respective side from the common wall.          It is true that negative<\/p>\n
words are not invoked in Exts.A1 and A2 while describing the<\/p>\n
covenant. But the absence of negative words cannot by itself always<\/p>\n
indicate that the covenant is of positive character. To decide that, one<\/p>\n
has to look into the substance of the covenant.        The Calcutta High<\/p>\n
Court held in Kumar Chandra v. Narendra Nath<\/a> (AIR 1930<\/p>\n
Calcutta 357):\n<\/p>\n
\n
                   “absence of negative form of expression<\/p>\n
             in a covenant is immaterial when from the<\/p>\n
             substance    of the   agreement    a   negative<\/p>\n
             agreement can be seen to be implied and the<\/p>\n
             principle of restrictive covenants will then<\/p>\n
             apply”.\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
Similar view was taken by the same Court in Moti Lal Doga v.<\/p>\n
Iswar Radha Damodar<\/a> (AIR 1936 Calcutta 727). There, the<\/p>\n
S.A. Nos.515 & 920 of 2000
\n                                   -: 11 :-<\/span><\/p>\n
covenant sought to be enforced was to keep pillars of         12 cubits in<\/p>\n
dimension in the land. It was held (on admission by the parties) that it<\/p>\n
was a negative covenant although positive in form.       In this case, the<\/p>\n
covenant is to leave a space having width of 12 fingers to the<\/p>\n
respective sides from the common wall in case the assignees of the<\/p>\n
respective portions wanted to reconstruct their portion of       building.<\/p>\n
The covenant forbids the assignees under Exts.A1 and A2 from<\/p>\n
constructing any portion of the building within the space having width<\/p>\n
of 12 fingers from the common wall. The covenant though positive in<\/p>\n
form, is truly negative in its essence and character.<\/p>\n
      8.     In this case the covenant is sought to be enforced by an<\/p>\n
assignee from the covenantee (transferor under Exts.A1 and A2) against<\/p>\n
the covenanter (respondent), he being the assignee from the covenantee<\/p>\n
(transferor) under Ext.A2.      The   covenant is sought to be enforced<\/p>\n
against the covenanter himself. Even without reference to the second<\/p>\n
part of Sec.11 of the Act the covenant could said to be enforceable against<\/p>\n
the respondent as it satisfied the requirements of Sec.40 of the Act.<\/p>\n
      9.     Then the question is whether the deceased first appellant<\/p>\n
being an assignee from the covenantee, the additional appellants<\/p>\n
could enforce the negative       covenant in Ext.A2 without a specific<\/p>\n
assignment of the benefit of the covenant in favour of the deceased<\/p>\n
S.A. Nos.515 & 920 of 2000
\n                                   -: 12 :-<\/span><\/p>\n
first appellant? Exhibits A1, A3 and A4 as per which she acquired title<\/p>\n
do not specifically assign the benefit of the covenant provided under<\/p>\n
Ext.A2. Collins L.J. stated in Rogers v. Hosegood (1900) 2 Ch.D.<\/p>\n
388) thus:\n<\/p>\n
\n
                   “…these   authorities    establish    the<\/p>\n
             proposition that, when the benefit has been<\/p>\n
             once clearly annexed to one piece of land, it<\/p>\n
             passes by assignment of that land, and may be<\/p>\n
             said to run with it, in contemplation as well of<\/p>\n
             equity as of law, without proof of special<\/p>\n
             bargain or representation on the assignment.<\/p>\n
             In such cases it runs, not because the<\/p>\n
             conscience of either party is affected, but<\/p>\n
             because the purchaser has bought something<\/p>\n
             which inhered in, or was annexed to, the land<\/p>\n
             bought”.\n<\/p>\n
                                           (emphasis supplied)<\/p>\n
Following     these    observations    the   Calcutta  High   Court in<\/p>\n
Mathewson v. Ram Kanai Singh Deb<\/a>. (1909) XXXVI ILR<\/p>\n
Calcutta 675) held thus:\n<\/p>\n
\n
                   “..one very important test whether the<\/p>\n
S.A. Nos.515 & 920 of 2000
\n                                 -: 13 :-<\/span><\/p>\n
             benefit of burden of a covenant or contract in<\/p>\n
             any particular case runs with the land or not is<\/p>\n
             whether such covenant or contract in its<\/p>\n
             inception binds the land. It is does, it is then<\/p>\n
             capable of passing with the land to subsequent<\/p>\n
             assignees, if it does not, it is incapable of<\/p>\n
             passing by mere assignment of the land….”\n<\/p>\n
                                    (emphasis supplied)<\/p>\n
Therefore, if the covenant bound the land at the inception it goes with<\/p>\n
the land for the benefit of the assignee of the covenantee         and a<\/p>\n
specific assignment of the covenant in favour of the assignee (of the<\/p>\n
covenantee) is not required.\n<\/p>\n
      10.    Halsbury’s Laws of England, Vol.14, 3rd Edn. (Page<\/p>\n
564) states as regards covenants running with the land in equity<\/p>\n
that the equitable doctrine relating to restrictive covenants is confined<\/p>\n
to covenants of a negative nature. It states that:<\/p>\n
                    “Where a vendor retains land which is<\/p>\n
             sufficiently defined and which is capable of<\/p>\n
             being benefited by the covenant at the time<\/p>\n
             when it is imposed, and the covenant is<\/p>\n
             expressed to be for the benefit of that land and<\/p>\n
             every part thereof, then the benefit of the<\/p>\n
S.A. Nos.515 & 920 of 2000
\n                                   -: 14 :-<\/span><\/p>\n
             covenant is annexed to the land and passes on<\/p>\n
             a subsequent conveyance of the land or any<\/p>\n
             part thereof without express mention, even<\/p>\n
             though the purchaser is not aware of the<\/p>\n
             existence of the covenant.      It constitutes an<\/p>\n
             equitable interest in the land and passes, not on<\/p>\n
             the ground that a subsequent purchaser has<\/p>\n
             expressly bought it, but because it inheres in or<\/p>\n
             is annexed to the land which he has brought.<\/p>\n
             Moreover, although the covenant is not taken<\/p>\n
             for the benefit of the defined land “or any part<\/p>\n
             thereof”, yet the benefit will pass on an<\/p>\n
             assignment of part, if the conveyance shows an<\/p>\n
             intention that the covenant should be annexed<\/p>\n
             to each part of the land”.\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
In this case it is seen from Ext.A1 and A2 that the covenant not to<\/p>\n
construct any portion of the building within a space of 12 fingers from<\/p>\n
the common wall on either side was stipulated for the protection of<\/p>\n
the   common wall (as it then stood)           which was necessary for<\/p>\n
enjoyment of the respective portions of the building. That covenant<\/p>\n
being negative in character bound the land at the very inception and<\/p>\n
hence    in my view runs with the land for the beneficial enjoyment of<\/p>\n
which it was imposed. Hence, a specific assignment of the benefit of<\/p>\n
the covenant in favour of the assignees of the covenantee is not<\/p>\n
S.A. Nos.515 & 920 of 2000
\n                                 -: 15 :-<\/span><\/p>\n
required.    That apart, Exts.A1, A3 and A4 show that while assigning<\/p>\n
the southern portion of the building and the land to Enasu, John and<\/p>\n
appellant No.1, respectively all rights of the vendor (which should<\/p>\n
include the benefit of the covenant imposed on the respondent under<\/p>\n
Ext.A2) in the property was conveyed to the purchasers. Hence the<\/p>\n
assignee of the covenantee was entitled to enforce the covenant<\/p>\n
against the respondent.\n<\/p>\n
      11.    Then the question is     whether in enforcement of the<\/p>\n
negative covenant in Ext.A2 a mandatory injunction could be issued<\/p>\n
directing the respondent to demolish the building constructed within<\/p>\n
the space having the width of 12 fingers? Learned counsel for<\/p>\n
respondent contends that a reading of the covenant in Exts.A1 and<\/p>\n
A2 would show that it is only for protection of the common wall so long<\/p>\n
as it existed that the covenant has life. The covenant imposed by the<\/p>\n
covenantee on the assignees of the two portions of the building, as<\/p>\n
could be understood on a reading of the relevant documents (Exts.A1<\/p>\n
and A2) was intended for the protection of the common wall. If any<\/p>\n
of the assignees under Exts.A1 and A2 wanted to reconstruct his part<\/p>\n
of the building, he was required to leave a space of 12 fingers from<\/p>\n
the common wall.        I have no reason to think that the covenantee<\/p>\n
wanted the common wall to remain as such for all times to come<\/p>\n
S.A. Nos.515 & 920 of 2000
\n                                  -: 16 :-<\/span><\/p>\n
without any support from either side and even after the assignees of<\/p>\n
the two portions reconstructed their portion of the building. In this<\/p>\n
case it is admitted by the appellants that John, the          assignor of<\/p>\n
appellant No.1 has reconstructed the building in his part of the land.<\/p>\n
The common wall is not retained by the parties.         Therefore at the<\/p>\n
time when the respondent was reconstructing the building in the<\/p>\n
northern portion it was not necessary to leave the space having width<\/p>\n
of 12 fingers. In that situation appellants could not enforce the said<\/p>\n
covenant against the respondent.       I do not find anything illegal or<\/p>\n
irregular in the first appellate court taking that view on an<\/p>\n
interpretation of the relevant covenant in Exts.A1 and A2. Hence the<\/p>\n
prayer for mandatory injunction directing the respondent to remove<\/p>\n
the portion of the building falling within the space of 12 fingers cannot<\/p>\n
stand.\n<\/p>\n
      12.    It is contended by the learned counsel for appellants that<\/p>\n
there are other positive      covenants in Ext.A2 which required the<\/p>\n
respondent to provide sluice gutter to prevent water falling on the<\/p>\n
common wall, etc. According to the learned counsel, respondent is<\/p>\n
bound to comply with those covenants. I do not consider it necessary<\/p>\n
to go into the question of enforceability of those positive covenants in<\/p>\n
these appeals since no relief in that line is asked for in this suit. The<\/p>\n
S.A. Nos.515 & 920 of 2000
\n                                 -: 17 :-<\/span><\/p>\n
question whether those covenants are enforceable by the assignees<\/p>\n
of covenantee has to be decided in appropriate proceedings.<\/p>\n
      13.    It is lastly contended by the learned counsel for the<\/p>\n
appellants that at any rate,     respondent trespassed into the half<\/p>\n
portion of the common wall belonging to the appellants and that the<\/p>\n
trespass being after the institution of the suit, first appellate court<\/p>\n
was not justified in interfering with the mandatory injunction granted<\/p>\n
by the learned Munsiff directing the respondent to demolish that part<\/p>\n
of the building. Learned counsel invited my attention to Ext.C1, report<\/p>\n
of the Advocate Commissioner.\n<\/p>\n
      14.    I have gone through the report of the Advocate<\/p>\n
Commissioner. It is not clear whether there was any trespass areally<\/p>\n
or otherwise. Moreover, there was no order of injunction in force at<\/p>\n
the time the alleged construction was made. I do not forget that the<\/p>\n
court is not powerless to mould relief taking into account events that<\/p>\n
took place after the institution of the suit. But the mandatory<\/p>\n
injunction prayed for being on the strength of title claimed by the<\/p>\n
appellants, that relief could not be granted on         surmises and<\/p>\n
conjectures.      The alleged trespassed area must be measured and<\/p>\n
properly identified before relief is granted.    Such evidence is not<\/p>\n
available in this case. First appellate court therefore was justified in<\/p>\n
S.A. Nos.515 & 920 of 2000
\n                                -: 18 :-<\/span><\/p>\n
interfering with the mandatory injunction granted by the learned<\/p>\n
Munsiff. But the observation made by the first appellate court in<\/p>\n
paragraph 9 of its judgment that the common wall became the<\/p>\n
exclusive wall of the respondent, on the facts, evidence and<\/p>\n
circumstances of the case was not warranted. That question has to<\/p>\n
be decided in appropriate proceeding. I make it clear that it will be<\/p>\n
open to the appellants to sue for recovery of possession or mandatory<\/p>\n
injunction as the case may be, in case there is any trespass into the<\/p>\n
portion of the land belonging to them if they are otherwise entitled to<\/p>\n
such a course.\n<\/p>\n
      With the above observation these second            appeals are<\/p>\n
dismissed. No costs.\n<\/p>\n
\n
                                           THOMAS P.JOSEPH, JUDGE.\n<\/p>\n
\nvsv<\/p>\n
  THOMAS P.JOSEPH, J.\n<\/p>\n
===================
\n   S.A. NO. 515 OF 2000
\n         AND
\n   S.A. NO.920 OF 2000
\n===================<\/p>\n
     J U D G M E N T<\/p>\n
    13TH MARCH, 2009<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Princy vs Jose on 13 March, 2009 IN THE HIGH COURT OF KERALA AT ERNAKULAM SA.No. 515 of 2000(C) 1. PRINCY … Petitioner Vs 1. JOSE … Respondent For Petitioner :SRI.RENJITH THAMPAN For Respondent :SRI.P.R.VENKETESH The Hon’ble MR. Justice THOMAS P.JOSEPH Dated :13\/03\/2009 O R D E R “C.R.” THOMAS P.JOSEPH, J. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-268043","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nPrincy vs Jose on 13 March, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/princy-vs-jose-on-13-march-2009-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Princy vs Jose on 13 March, 2009 - Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"og:url\" content=\"https:\/\/www.legalindia.com\/judgments\/princy-vs-jose-on-13-march-2009-2\" \/>\n<meta property=\"og:site_name\" content=\"Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"article:publisher\" content=\"https:\/\/www.facebook.com\/LegalindiaCom\/\" \/>\n<meta property=\"article:published_time\" content=\"2009-03-12T18:30:00+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2015-08-25T07:09:53+00:00\" \/>\n<meta property=\"og:image\" content=\"https:\/\/i0.wp.com\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg?fit=512%2C512&ssl=1\" \/>\n\t<meta property=\"og:image:width\" content=\"512\" \/>\n\t<meta property=\"og:image:height\" content=\"512\" \/>\n\t<meta property=\"og:image:type\" content=\"image\/jpeg\" \/>\n<meta name=\"author\" content=\"Legal India Admin\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:creator\" content=\"@legaliadmin\" \/>\n<meta name=\"twitter:site\" content=\"@Legal_india\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"Legal India Admin\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"19 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\/\/schema.org\",\"@graph\":[{\"@type\":\"Article\",\"@id\":\"https:\/\/www.legalindia.com\/judgments\/princy-vs-jose-on-13-march-2009-2#article\",\"isPartOf\":{\"@id\":\"https:\/\/www.legalindia.com\/judgments\/princy-vs-jose-on-13-march-2009-2\"},\"author\":{\"name\":\"Legal India Admin\",\"@id\":\"https:\/\/www.legalindia.com\/judgments\/#\/schema\/person\/0bfdffe9059fb8bb24a86d094609c5ea\"},\"headline\":\"Princy vs Jose on 13 March, 2009\",\"datePublished\":\"2009-03-12T18:30:00+00:00\",\"dateModified\":\"2015-08-25T07:09:53+00:00\",\"mainEntityOfPage\":{\"@id\":\"https:\/\/www.legalindia.com\/judgments\/princy-vs-jose-on-13-march-2009-2\"},\"wordCount\":3681,\"commentCount\":0,\"publisher\":{\"@id\":\"https:\/\/www.legalindia.com\/judgments\/#organization\"},\"articleSection\":[\"High Court\",\"Kerala High Court\"],\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"CommentAction\",\"name\":\"Comment\",\"target\":[\"https:\/\/www.legalindia.com\/judgments\/princy-vs-jose-on-13-march-2009-2#respond\"]}]},{\"@type\":\"WebPage\",\"@id\":\"https:\/\/www.legalindia.com\/judgments\/princy-vs-jose-on-13-march-2009-2\",\"url\":\"https:\/\/www.legalindia.com\/judgments\/princy-vs-jose-on-13-march-2009-2\",\"name\":\"Princy vs Jose on 13 March, 2009 - Free Judgements of Supreme Court & High Court | Legal India\",\"isPartOf\":{\"@id\":\"https:\/\/www.legalindia.com\/judgments\/#website\"},\"datePublished\":\"2009-03-12T18:30:00+00:00\",\"dateModified\":\"2015-08-25T07:09:53+00:00\",\"breadcrumb\":{\"@id\":\"https:\/\/www.legalindia.com\/judgments\/princy-vs-jose-on-13-march-2009-2#breadcrumb\"},\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"ReadAction\",\"target\":[\"https:\/\/www.legalindia.com\/judgments\/princy-vs-jose-on-13-march-2009-2\"]}]},{\"@type\":\"BreadcrumbList\",\"@id\":\"https:\/\/www.legalindia.com\/judgments\/princy-vs-jose-on-13-march-2009-2#breadcrumb\",\"itemListElement\":[{\"@type\":\"ListItem\",\"position\":1,\"name\":\"Home\",\"item\":\"https:\/\/www.legalindia.com\/judgments\/\"},{\"@type\":\"ListItem\",\"position\":2,\"name\":\"Princy vs Jose on 13 March, 2009\"}]},{\"@type\":\"WebSite\",\"@id\":\"https:\/\/www.legalindia.com\/judgments\/#website\",\"url\":\"https:\/\/www.legalindia.com\/judgments\/\",\"name\":\"Free Judgements of Supreme Court & High Court | Legal India\",\"description\":\"Search and read the latest judgements, orders, and rulings from the Supreme Court of India and all High Courts. 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