PRINCY Vs. JOSE

JUDGEMENT

(1.) The substantial questions of law raised for a decision are as to the character and enforceability of a covenant by the assignee of the covenantee.

(2.) Short facts necessary for a decision of these second appeals are : The building, portions of which are involved in these appeals together with the land whereon it was situated originally belonged to Cherchi (hereinafter called "the covenantee"). She, as per Ext.A1, assignment deed No. 2449/1968 dated 13.8.1968 sold the southern half of the building and land to Enasu with a covenant which is as follows : "...though one half of the northern wall of the building in the schedule property is included in this (deed), in case of reconstruction of the said building (in the portion assigned under Ext.A1), separate wall shall be constructed in such a way as not to cause damage to the northern wall and leaving a space of 12 fingers towards south from the said wall...." On the same day the northern portion of the building and the land was assigned to the respondent/ defendant as per assignment deed No. 2450/1968 (the date mentioned at the beginning of the document is 18.3.1968 which is obviously a mistake), the certified copy of which is Ext.A2. A similar covenant as provided in Ext.A1 and extracted above was made in Ext.A2 also directing the respondent to leave the same space towards north from the common wall. Enasu who got the southern portion of the building and land as per Ext. A1 assigned that portion to John as per Ext.A3, assignment deed dated 7.7.1973. John reconstructed the building in the southern portion complying with the covenant contained in Exts.A1 and A3 and assigned the reconstructed building and land to the deceased first appellant (first plaintiff) as per Ext.A4, assignment deed dated 29.5.1974. Second appellant/second plaintiff is the husband of the first appellant. While they were in possession and enjoyment of the building and land as per Ext.A4, respondent started reconstructing his portion of the building on the northern portion. Appellant Nos.1 and 2 instituted the suit for a decree for prohibitory injunction to restrain the respondent from constructing the building without leaving space at a width of 12 fingers as directed in Ext.A2, the assignment deed in his favour. No interim order was passed in the suit. Even when the suit was pending, respondent proceeded with the construction. Thereon plaint was amended incorporating a prayer for mandatory injunction to direct the respondent to remove the portion of the building allegedly constructed with the space of 12 fingers from the boundary wall. Learned Munsiff held that the intention of the covenantee was to safeguard the remaining portion of the building, there was no intention to retain the common wall for ever without any support and without making it as part of the building and since both sides have reconstructed the portion of the building in the lands assigned to them it is not necessary to leave any space as per the covenant. However, since the respondent was found to have trespassed into the land belonging to the appellant, mandatory injunction was granted directing the respondent to demolish the construction he made within the southern half of the common wall. Respondent took up the matter in appeal. Appellant Nos.1 and 2 preferred Cross Appeal in so far as learned Munsiff refused to enforce the covenant. The first appellate court while agreeing with the learned Munsiff as to the intention of the covenantee, held that as the covenantee (transferor) has assigned the remaining portion of the property without leaving anything to be enjoyed further, the assignee from the covenantee cannot enforce the covenant. The first appellate court also held that the common wall became the exclusive wall of the respondent, the allegation of trespass is not proved and accordingly allowed the appeal, dismissed the cross appeal and non-suited appellant Nos. 1 and 2. Hence these second appeals.

(3.) Learned counsel for appellants contended that the view taken by the first appellate court that the covenant is not enforceable by the assignee of the covenantee is not sustainable in law and placed reliance on the decisions in la v. Ambujakshy, 1989 2 KerLT 142 eph George v. Chacko Thomas,1992 1 KerLT 6. ned counsel also assailed the finding of the courts below as to the interpretation given to the covenants in Exts.A1 and A2 and the finding of the first appellate court that the common wall now exclusively belongs to the respondent and that the trespass alleged is not proved.