OFFICIAL TRUSTEE OF BOMBAY Vs. SALEBHAI SARAFALLY BHAGAT

JUDGEMENT

(1.) This suit was originally filed by one Vanmalidas Bhicabhai, as a trustee of certain premises situate at Sham Sett Street outside the fort of Bombay, against the first defendant, who is the owner of certain premises situate to the north of the said trust premises, claiming inter alia that the first defendant, his servants, agents and workmen might be restrained by an order and injunction of this Court from encroaching or trespassing on the trust premises as they had done on October 8, 9 and 10 1924, in the manner following, that is to say, that the defendant and his servants, agents and workmen had entered upon the ground floor of the trust premises and upon a chowk in the trust premises adjoining the southern wall of the defendant's premises for the purpose of plastering the said southern wall. The original second defendant was one of the trustees of the said premises with the plaintiff, and as he refused to join in the filing of the suit, he was made a party defendant. The plaintiff resigned as the trustee and. the Official Trustee was thereafter brought on the record in his place. The original first defendant died and his legal representatives were brought on the record as Defendants Nos. 1(a), 1(b) and 1(c). I shall hereafter refer to them as defendants.

(2.) The original first defendant put in a written statement whereby he alleged that the two properties in suit formerly belonged to common owners, viz., Tyeballi Ahmedji, Abdulally Ahmedji and Abdul Hoosein Ahmedji, who by a conveyance, dated July 2, 1923, conveyed the trust property to the plaintiff's predecessor-in- title subject to a covenant by the purchaser, his heirs, executors, administrators and assigns that he and they would not raise the building on the land conveyed to a greater height than it was on February 11, 1903, and would keep the chowk in the premises conveyed in the same condition as it was in on the said date. The defendant contended that the said covenant was inserted in order to preserve to the transferors access of light and air to the windows in the property retained by the transferors and ultimately conveyed to the first defendant on June 12, 1917. He further contended that by reason of the fact that the plaintiff's building was lower than the defendant's building and by reason of the existence of the said open chowk it was necessary to plaster the portion of the defendant's southern wall which abutted on the said open chowk in order to protect it from wind and rain, and stated that in order to plaster such wall, he had placed planks in his building so that they projected through the windows thereof and had erected on the projecting portions of such planks scaffolding to enable his workmen to carry out the said work. He further contended that the plastering of the said wall was incidental to and necessary for the full and proper enjoyment of the said easement of light and air, and that by reason of the facts stated in para. 2 of the written statement he was entitled to erect a scaffolding over the said open chowk in order to enable his workmen to carry out such plastering work.

(3.) At the hearing of the suit two issues were raised: (1) Whether the defendants Are entitled o raise the scaffolding in the open chowk of the plaintiff for the purpose of plastering or whitewashing the south wall of defendant's premises. (2) Whether for that purpose the defendants were entitled to enter the plaintiff's chowk through the plaintiff's property.