' By this judgment Suits No, 1002/79, 644/79 and 82/80 will be disposed of. Suit No, 1002/79 has been filed by R. G. Sehwani Co-operative Housing Society Limited against three defendants and K. D. A.
For declaration that the approval of the building plan by defendant No, 4 on 1-9-1979 for construction of multi-storeyed building (ground plus four storeyes) on Plot No, 23/1 New No,. 366 JM.
Sehwani Colony, Jamshed Quarter, is illegal and without lawful authority and for perpetual injunction against defendants No, 1 to 3 restraining them from raising the construction (1) covering more than 1/3rd of the total area of the plot and (ii) beyond two storeyes i. e. Ground and first floor.
2. Briefly the facts are that the plaintiffs bad entered into an agreement with Karachi Municipal Corporation on 27-6-1930 for leasing out 21816.1/2 sq. Yards in blocks 23-26 in Survey Sheet J. M. 2, Jamshed Quarters, Karachi for building residential houses by its members on various plots and one plot was reserved for amenity purposes. It is alleged that the agreement inter alia provided that not more than 1/3rd area of any of the said plots shall be covered with building nor shall any building constructed thereon consist of more than 2 storeyes i. e. Ground and first floor. It is alleged that after the plaintiffs hereinafter called 'the Society', had complied with the terms of the aforesaid agreement, Karachi Municipal Corporation granted a lease for 99 years to them of the said plots which inter alia contained the aforestated clauses. The Society then allotted plots to its members subject to the terms and conditions contained in the agreement of lease and every member/allottee was aware of the conditions contained in the lease deed. The said covenants according to the Society run with the land and all the residents are bound by the rules and bye- laws of the society. G. S. Kotwani was the original sub-lessee of Plot No, 23/1 (New No, 366 JM) who had built a house with a covered area of 296 sq. Yards, G. S. Kotwani became evacuee and the said property was acquired -and under Displaced Persons Compensation and Rehabilitation Act it was transferred to one Dr. L. R. Khan. A permanent transfer deed dated 1st June, 1952, was also issued in his favour. Subsequent to the death of Dr. L. R. Khan this property devolved on his legal representatives who were admitted as joint members of the society and necessary mutation was made in the record of the Society. On 5-3-1979 the Society gave No-Objection to the said owner to sell their property within the framework of the Society's rules and bye-laws and terms and conditions of lease and the buyers also giving an under taking in writing to comply with the same.
On 17-3-1979 the defendants Nos. I to 3 purchased the plot Bearing No, JM 366 (Old Survey No, 23/1) measuring 1186-1/2 sq. Yards with construction thereon and their names were entered in the Survey Register. The defendants No, 1 to 3 neither applied nor became members of the Society and according to the Society they are not entitled to the privilege of the society members. The existing structure on the plot was pulled down in July, 1979, with the object of raising multi-storeyed building. The lessees of the neighbouring plot Bearing No, 367, namely, Mst. Hawabai and Mat.
Farida served a notice on the Society complaining against the apprehended action defendants Nos. 1 to 3 of raising a multi-storeyed building, covering more than the permitted area which infringed their rights of easement. On 29-7-1979 defendants Nos. 1 to 3 were called upon by the Society to show-cause why action should not be taken against them for violation of terms and conditions of the lease but without any result. In August, 1979, Mst. Hawabai and Mst. Farida filed Suit No, 644/79 for restraining defendants Nos. 1 to 3 from raising any construction on the said plot beyond two storeyes. On 1-9-1979 the defendants obtained approval of their building plan of 5 storeys flats i. e. Ground plus 4 storeyes from K. D. A. The grievance of the Society is that it is in breach of conditions of the lease inasmuch as the ground floor has been reserved for commercial purposes. It is further alleged that as the defendants Nos. 1 to 3 are not the members of the Society they cannot construct the house on the plot. It has further been alleged that the multi-storeyed building cannot be raised as it is in violation of the declaration made by the Martial Law Authorities and the conditions imposed by Martial Law Administrator, Zone C, and further that it is in vicinity of Quaid-e-Azam's Mazar and that it will infringe the neighbour's rights of light, air and privacy. It has further been stated that as the plan is in violation of the terms of lease, the land granted to the Society will result in forfeiture of lease by K. M. C. On 5-11-1979 the Society called upon the defendants 1 to 3 to stop the construction but without any result. On 11-11-1979 the plaintiffs made representation to the Director, Master Plan & Environmental Control of K. D. A. For cancellation of the approved plan and restraining the defendants. Nos. 1 to 3 from continuing construction but with no result. The plaintiffs then filed the present suit. The defendants Nos. 1 to 3 filed their written statement in which preliminary objections were taken that there is no privity of contract between the Society and the defendants Nos. 1 to 3 and there is no legal right vested in the Society entitling it to sue, that the Society are not entitled to challenge the building plan approved by defendant No, 4 and that the suit filed is unauthorised and the plaint does not disclose under whose authority it has been filed. It has been pleaded that majority of the plot holders in the Society have not been abiding by the terms of the lease and the Society have acquiesced in the said behaviour of the plot holders. The allotment of plot to G. S. Kotwani and ultimate transfer to Dr. L. R. Khan from the Settlement Authorities has not been denied. It has not been denied that defendants Nos. 1 to 3 are not members of the Society and it is submitted that they are not subject to the obligations of members of the Society. It has been stated that the suit is mala fide and has been filed at the instigation of the neighbours who have also filed separate suits. The constitution of the managing committee of the Society has been termed as illegal and unauthorisedly constituted. The notices issued by the Society have been termed as illegal, unauthorised and mala fide. It has been pleaded that the approval granted by K. D. A. Is legal and proper and K. M. C. Has no objection to the construction of the proposed building. The grounds on which the relief is being sought has been denied and it has particularly been denied that the easement rights of the Society or the neighbours will be infringed. It has been pleaded that in fact the entire area has already become commercial and numerous commercial buildings, shops exist in the vicinity, and the shops constructed by the defendants have already been disposed of. It has further been averred that the majority of the plots comprising the Society and houses constructed thereon cover 2/3rd of the area and even the so-called secretary of the Society has herself covered 2/3rd area of the plot in her occupation. In view of these averments the claim has totally been denied.
3. The defendants No, 4 in their written statement have pleaded that by virtue of powers conferred by law they have approved the building plan of the defendants Nos. 1 to 3 it has been stated that the objection, if any, should have been taken by K. M. C. Which is a necessary party and has not been sued. It has further been stated that the condition for not raising construction beyond the original permissible limits stands withdrawn by virtue of Notification No, SO (VI) 15 (32)/73 dated 1- 6-1976 issued by the Government of Sind whereby construction beyond the original permissible limits was being permitted against levy of fee of K. M. C. At the rate of Rs, 15 per sq. Yard of the total area of the plot per additional floor proposed to be constructed. No limit has been placed on the power of the K. D. A. In matter of approval of plan with regard ,to change of user of the ground floor from residential to commercial. It has further been stated that according to the approved plan the covered area would be slightly more than 1/3rd area of the plot. The grounds on which the plaintiffs have challenged the approval of the plan has been denied.
4. In Suit No, 644/79 the plaintiffs have their plot of land bearing No, JM 367 Old Survey No, 23/2 JM Quarter, Karachi adjacent to the plot of defendants Nos. 1 to 3. The plaintiff's main grievance is that the construction of multi-storeyed building is against the lease and building agreement. The plaintiffs have further averred that such a building will interfere with plaintiff's right of easement of light, air and privacy which they have been enjoying for more than 20 years. The plaintiffs have prayed that the defendants be restrained from raising any building higher than two storeyes (ground and first floor).
5. Suit No, 82/80 has been filed by Mst. Farida, one of the plaintiffs in Suit No, 644179, who are owners of Property No, JM 367, Old Survey No, 23/2. JM Quarter, Karachi. All the allegations made in the aforestated two suits have been repeated. The plaintiff has alleged that in Suit No, 644/79 defendants Nos. 1 to 3 on 19-8-1979 gave an undertaking not to construct beyond two storeyes.
However it transpired on 1-9-1979 that defendants Nos. 1 to 3 got building plan approved from K. D.
A. For construction of multi-storeyed commercial building. According to the plaintiff the approval was illegally obtained ex pane without notice to the plaintiff and against the terms of lease and building agreement. It has been pleaded that the proposed building will adversely affect the plaintiff's title, interest and right of easement of air and light and privacy. The plaintiff has prayed for injunction restraining the defendants 1 to 3 from raising any construction higher than two storeyes and from converting the same for purposes other than residential.
6. In all the three suits defendants Nos. 1 to 3 are the same persons and the allegations and prayer in all the suits are the same. In all the three suits following issues were framed. Besides the evidence separately led in every suit the statement of official witnesses recorded in Suit No 372/79 and 644/79 has been read as evidence in all the suits.
(1) Whether the suit is barred by reason of section 20 of the Sind Building Control Ordinance, 1979?
(2) Whether the suit is undervalued?
(3) Whether the plaintiffs are estopped from raising the claims set out in the plaint?
(4) Whether the terms and conditions of the lease Agreement and lease deed are binding upon the defendants?
(5) Whether construction of more than two storeys (ground plus one) and conversion of plot to Commerical and covering more than 1/3rd area of plot is wrongful and illegal?
(6) Whether the plans approved by K. D. A. Are valid or against the principles of natural justice?
(7) Whether the transfer of the plot in question to persons other than members of the Society is in violation of the terms of the lease?
(8) Whether the construction of the building amounts to violation of the claimed rights of easement of light, air and privacy?
(9) Whether the permission of Karachi Municipal Corporation was obtained or was necessary in law?
(10) Whether the defendants purchased the plot with knowledge of the lease and or with the prior consent of the plaintiffs and if so what is the effect?
(11) Whether Suit No, 1002/79 has been validly filed by an authorised person?
(12) Whether there is any privity of contract between the plaintiffs and defendants?
(13) What should the decree be?
Issue No, 1.-The defendants have not seriously pressed this issue. The only contention raised is that as K. D. A. Acting as Authority under Sind Building Control Ordinance, 1979, have approved the plan, any suit challenging it is barred under section 20 of the Sind Ordinance.
' This contention is misconceived. Section 20 provides indemnity to the Government of the Authority or any person in respect of anything done or intended to be done in good faith under the Ordinance. It only protects the Government, the Authority and its Officers from being sued for acts done in good faith in discharge of their duties. My finding is in the negative.
Issue No 2.-Not pressed.
Issue No, 3.-The defendants Nos. 1 to 3 have relied on the fact that before purchasing the property the defendant No, 1 had discussed with the plaintiffs in Suit No, 644/79 and 82/80 who had verbally given permission to construct a building comprising of ground floor and four storeys. He has further stated that during the talk he had informed them about the commercial nature of the building. In his cross-examination he has stated that he had talked to Abdul Rahim the husband of Mst. Hawa Bai (plaintiff No, 1 in Suit No, 644/79) as he is head of the family of the plaintiffs. Nothing has been stated about the Society in this regard. These facts can hardly operate as estopple against these plaintiffs. My finding is in the negative.
Issues Nos. 4 and 5.-Sehwani Co-operative Housing Society hereinafter referred to as "the Society" was formed in the year 1930 exclusively for Sehwani Hindu Community and according to the Articles of Association the members were to be of Sehwani Community and affairs was to be conducted by a committee of Shewani Hindus. On 27-6-1930 "the Society entered into an agreement with K. M. C. Under which blocks Nos. 23 to 26 in survey Sheet 3M were granted to them.
The Society was required to erect dwelling houses and buildings with drainage within a period of 84 months from 13-1-1930. It also provided that not more than 1/3rd area of any of the plots was to be covered and the building should not consist of more than ground plus first floor. On completion of building the Society was entitled to separate lease in respect of each of the plots. K. M. C.
Accordingly granted lease to the Society in respect of the plots involved in these suits. The relevant clauses of the lease are reproduced hereunder: "7. The Lessee shall not (a) without the previous consent in writing of the Standing Committee of the Lessors divert the plot to uses other than those for which it is intended i.e other than residential purposes (b) shall not construct buildings on more than one-third the area of the said plot or construct or reconstruct any building or add to any existing building a structure so as to make such building consist of more than two storeys (i. e., the ground and the first floor) and (c) make any alterations or additions to any existing building without complying with the building bye-laws and rules of the Lessors passed under the Karachi Municipal Act of 1933, or any other statutory law for the time being in force.
8. If the lessee or his sub-lessee contravenes the provisions of the lease it shall be in the discretion of the Lessors to cancel the lease, and on such cancellation the Lessee will have no further claim whatsoever against the Lessors, except at the option of the Lessors (such option to be exercised within six months of such) cancellation to receive the capital value of the building standing on such plot, failing the exercise of such option to have permission to enter upon the premises within six months after the expiry of the said period of six months, to move such buildings, and on failure to remove the same or any portion thereof within the said period of six months, such building materials or such portion thereof as is not so removed shall belong absolutely to the Lessors."
' Plot No, 24/1, new No, 366 was allotted to Kotwani and sub-lease was granted in his favour but a copy of the sub-lease has not been produced. Kotwani was declared evacuee and all the interests in Plot No, 366 became evacuee and the property formed part of the compensation pool. On 4-12- 1959 under Provisional Transfer Order it was transferred to Dr. L. R. Khan and finally on 21-1-1962 P. T.
D. Was issued in his favour. On his death he was succeeded by Mst. Nayyar Sultana and two others who by a conveyance deed dated 17-3.1979 transferred it to defendants 1 to 3. According to Mr. A. H.
Pirzada, the learned counsel for defendant No, 3 the said purchase was made without any notice of the alleged restrictive covenant and for valuable consideration of Rs, 4,00,000. In these circumstances the learned counsel contends that the defendants Nos. 1 to 3 are not bound with the terms and the restrictive conditions imposed by the lease deed.
7. The admitted position is that Kotwani was a sub-lessee. Although the sub-lease has not been produced the fact remains that the said sub-lessee had constructed his house on the said plot which would not have been built without the approval of K. M. C. In these circumstances it can be presumed that the sub-lessee had complied with the conditions of the lease deed.
8. Mr. Abdul Hafeez Pirzada the learned counsel for the defendants No, 3 and Mr. Khalid Anwer for defendants Nos. 1 & 2 have contended that as the property became evacuee and was transferred under the provisions of Displaced Persons (Compensation & Rehabilitation) Act, 1958, the string with the lessor was raptured and a new relationship was created between Dr. L. R. Khan and the Government independent of any relation or condition mentioned in the lease deed or the sub- lease. According to the learned counsel as the transfer has been made by operation of law free from all encumbrances therefore the only conditions which would have governed the proprietary rights of Dr. L. R. Khan were the conditions laid down by the P. T. D. And since the defendants 1 to 3 purchased the property from the legal heirs of Dr. L. R. Khan they were only bound by the conditions which were binding upon Dr. L. R. Khan and not the conditions which were binding upon the plaintiffs or its sub-lessee.
9. Mr. A. A. Fazeel the learned counsel for the plaintiffs contended that on publication of a notification under section 4(3) of Pakistan Administration of (Evacuee Property) Act, 1957, only the rights, title and interest the evacuee were extinguished and the property was to vest in the Central Government free from all encumbrances. Mr. Fazeel referred to the case of Muhammad Khan v.
Chief Settlement & Rehabilitation Commissioner (1), wnere similar provisions in Displaced Persons (Land Settlement) Act, 1958, were construed in the following manner: "The words "shall vest wholly and absolutely in the Central Government free from all encumbrances" appear to have been added to subsection (3) of section 4 of the Act, merely by way of abundant caution and the intention really seems to have been to provide that whatever right, title or interest was possessed by the evacuee owner in the property which is the subject of a notification, would stand extinguished with its publication".
This provision contemplates that on publication of notification acquiring any. Property the same shall absolutely vest in the Central Government free from all encumbrances and all the rights, title and interest in the evacuee shall be extinguished. This creates a bar on an evacuee from deriving an right, title or interest in the property. The right, title and interest of Kotwani was that he was a sub-lessee and owner of the house constructed on the plot B After the notification he could not claim any right as a sub-lessee or owner. The Central Government thus acquired Kotwani's property rights. However, the conditions which were attached by K. M. C. Under the lease or sublease did not amount to the right, title or interest of Kotwani. They were the rights of K. M. C. And therefore enforceable at its option.
10. Mr. A. A. Fazeel the learned counsel for the plaintiff contended that as the aforestated conditions of the lease amount to restrictive covenant and run with the land, the same are binding upon the defendants No, 1 to 3 Mr. A. H. Pirzada, the learned Y counsel for defendant No, 2 contended that a restrictive covenant runs with the land for the benefit of the lessor and it should be absolute.
However, it can be waived expressly or by necessary implication. The stipulations of the lease are no doubt enforceable by K. M. C. It has to be determined whether any third party or adjacent neighbour can also enforce it. Lease is an agreement between two parties and therefore only a party to the agreement can enforce it. In the present case the building agreement provided that the Society could allot the plots to its members who shall continue to be liable for performance of several stipulations until the grant of lease to Society. The lease provided that if the lessee or sub- lessee contravenes the provisions of lease it shall be in the discretion of the lessor to cancel the lease. It is thus clear that these covenants of the lease relied upon by the plaintiffs cannot be enforced by them. It is not the case of the plaintiffs that the Society is part of any scheme framed under the Sind Town. Planning Act, 1915, or any other statute which is materially being changed thereby creating nuisance and seriously affecting their rights.
11. Under the aforesaid clauses of the lease the lessee or sub-lessee with the previous consent of K.
M. C. In writing can divert the plot to uses other than residential and can also construct on more than 1/3rd area of the plot. Such a clause has been interpretted to mean that the landlord cannot withhold permission on unreasonable grounds. Mr. A. H. Pirzada has referred to Haroon E. H. Jeer v.
Sind Industrial Trading Estate Ltd. (2), where following observation was made: "In the revisional jurisdiction I can only say that such a covenant is
(1) PLD 1962 SC 284 (2) PLD 1969 Kar. 227 not a novation and there is ample authority for the proposition that a landlord cannot withhold sanction on unreasonable grounds. In case the landlord does so, it is open to the tenant either to proceed with the construction or to file a suit for declaaration. These are well-established principles recognized under the English Law. The law on this point, as stated in Paragraph 1284 in Halsbury's Laws of England, Volume 23, is to the following effect:- `A breach of an express covenant against making alterations or erecting new buildings will be enforced by injunction. In general, the covenant will be construed so as to forbid alterations which would affect the form of structure of the building. A covenant against making alterations without licence or consent is, however, deemed to be subject to a proviso that, if the proposed alteration constitutes an improvement, such licence or consent is not to be unreasonably withheld'.
' The learned author, in Paragraph 1286, under the heading 'Tenant's remedy where consent is unreasonably refused', has observed as follows:- `An unreasonable refusal of consent entitles the tenant either to make the improvements without any further request for consent, or to bring an action for declaration that the landlord has unreasonably withheld his consent."
' K. M. C. Therefore, could not unreasonably withhold the consent. In these circumstances it is difficult to hold that the aforestated covenants could be termed as restrictive covenants running with the land.
12. Mr. Abdul Hafeez Pirzada the learned counsel for the defendants No, 3 has alternatively contended that even if there is a condition or restrictive covenant in the lease deed, the same cannot be enforced against the defendants by the plaintiff. According to the learned counsel if at all there is any grievance it should be made by the K. M. C. And not by the plaintiff. In this regard it has been further submitted that K. M. C. Has expressly or impliedly by its conduct waived these conditions and, therefore the plaintiff has no right to enforce them. The evidence brought on record proves that the defendants Nos. 1 to 3 have obtained approval for the building plan from K. D. A.
This was brought to the notice of K. M. C. As well and the defendants Nos. 1 to 3 have paid Rs, 53,370, as additional floor charges which are recovered by the K. M. C. Under the Sind Government's Notification of 1976. A sum of Rs, 9,240, has been charged as conversion fee for converting the user of land from residential to commercial. These facts confirm that K. M. C has no objection to the construction of multi-storeyed building on more than 1/3rd of the area of the plot and also to its commercial use It has further been pointed out that if K. M. C. Had any objection if would have exercised its power to cancel the lease but no such action has been taken by K. M. C. In these circumstances the conditions imposed by the lessor 'shall be deemed to have been waived. K. M. C.
Has granted permission to the defendants in terms of the lease and therefore the plaintiffs cannot impose those conditions on the defendants on the ground that its breach will result in forfeiture of the lease. The aforestated clauses in the lease deed do not impose absolute prohibition. It permits a deviation provided K. M. C gives its sanction in writing. It is specifically established that K. M. C. By its conduct has .Granted permission to the defendants Nos. 1 to 3 to construct a multi-storeyed building and use its ground floor for commercial purpose. The learned counsel for the defendant No, 3 has relied on Halsbury's Laws of England. 3rd Edition, Volume 23, para. 1326 where it has been observed as follows :- "1326. Waiver of restrictive covenant. - A covenant restricting the user of premises is a continuing covenant, and there is a new breach everyday while the premises are used in violation of it (b); but the landlord may waive the covenant partially, so as to allow of the carrying on of a particular trade (c). The landlord does not waive the benefit of the covenant by permitting other premises held under a similar lease to be used for the prohibited purpose (d). A release of the covenant need not be express. If the landlord is aware of a continuing breach and acquiesces in it for a long period, where, for instance, with full knowledge, he receives rent, it will be presumed that he has either released the covenant or granted a licence for the user (e). If the landlord's conduct is not wholly inconsistent with the continued existence of the covenant, it will not be presumed that he has totally released it."
The restrictive covenants in the lease are enforceable by K. M. C., the owner/ landlord of the plot, which even in terms of the lease can be waived by K. M. C. Such restrictive covenants, in the face of permission granted by K. M. C. Cannot be enforced by the plaintiffs. These covenants in term of lease were to be incorporared in the sub-lease. It is therefore, to be considered that if K. M. C.
Waives those conditions can it be enforced by the lease against a sub-lessee or purchaser of the plot. Admittedly the defendants are not members of the Society but it will not make any material difference. In Pearce v. Maryon-Wilson (1), where a number of houses were held under identical leases containing a covenant against user otherwise than as a private dwelling house without the consent in writing of the landlord having been first obtained it was held that a tenant cannot prevent the landlord authorising another tenant to use his premises for other purposes. It, therefore, follows that in view of the waiver of restrictive covenants by, K. M. C. The plaintiff Society or any of the neighbours relying upon then lease cannot enforce them.
13. It has been contended that a restrictive conditions is no longer enforceable if due to change in the character of the neighbourhood it cannot be maintained. In the present case the contention is that the neighbourhood of the defendants' plot has undergone a radical change inasmuch as several commercial buildings and centres with the permission of the K. M. C. Have crept up in the locality, and therefore, it is not possible to maintain the terms and conditions of the lease which were originally sought to be enforced as far back as in the year 1943. The plans of the locality Exhs.
26 and 27 and the photographs of adjoining area Exhs. 28, 29, 30 and 32 have been produced. A perusal of the plan shows that the Society consists of 23 plots of which Plot No, 366/1 is held by the Society itself. Nine plots are between Syed Mohd Road and Subhash Chandra Bose Road. On the West of this road is a school. The other part of the Society is on the western side of the school. This part consists of the Society's Office on Plot No, 366/1 and 13 other plots. On the eastern side is Sardar Vallab Bhai Road and on the Southern side Jigarmuradabadi Road is situated. On the Northern side is Clayton Road. It has been established that Jigar Muradabadi road has been commercialised by K. M. C. Plots Nos. 366/1,
(1) (1935) Ch. 188 366, 376, 381 and 382 face Jigarmuradabadi Road. Clayton Road which is on the Northern side of the society on which its Plots Nos. 371 and 372 are situated, has also been fully commercialised. On the opposite side on Clayton road there is a New Town Mosque Market Centre. K. M. C. Market and further on the same road there is United Bank Limited Building and multi-storeyed buildings on Plot No, 924, 927 and 928. It is, therefore, clear that with the passage of time the localities which were exclusive for residential purposes under the pressure of human need are being converted into commercial use with the consent and approval of K. M. C. And the relevant authorities. The entire complex of this area has completely undergone a phenominal change. Previously there were bungalows but they have been replaced by multi-storeyed buildings or such buildings in which the ground floor has been converted for commercial use. Taking into consideration these facts and to keep pace with the time and to meet the needs and requirements of the locality K. M. C. Has been granting permission to construct multi-storeyed buildings and commerialise the area.
14. In the letter dated 2-1-1979 addressed by K. D. A. To the Administrator, K. M. C., Karachi it was stated that the Commercialisation of Jigar Muradabadi road was considered by Master Plan Department in view of the fact that it is a 100 feet wide road and unauthorised commercial area is creeping up. It was also pointed out that out of Iqbal library building K. M. C. Has leased out accommodation to a commercial bank. After considering all facts it was decided to issue no objection certificate from planning point of view for commercialization of this road subject to the normal terms and conditions and the Land Manager, K. M. C. Was advised to take necessary action in this regard. Again K. D. A. Granted the permission to commercialise Plot No, 366 putting up certain conditions which were intended to protect the right of easement and right of privacy of the adjoining neighbours, and commercialization charges were also imposed and realised. In view of these facts it cannot be contended that K. M. C. Granted the permission with closed eyes to the conditions in the lease deed.
15. The learned counsel for the defendants then coutended that even if there are restrictive covenants in the lease the same cannot be enforced, firstly because the plaintiff has no right to enforce them and secondly the defendants Nos. 1 to 3 have purchased the property without notice of such restrictive covenant and for valuarlible consideration. The first part has already been dealt with in the eaerlier part of the judgment. The second contention does not seem to be correct. The sale deed executed in favour of the defendants Nos. 1 to 3 clearly provides that the Society has recognised the title of the Vendors (Predecessor-in-interest of the defendants Nos. 1 to 3). This proves that the sellers were aware of the rule of the Society. The lease deed granted by K. M. C. Is a registered document and therefore all persons concerned shall be deemed to have notice of this document. Mr. A. A. Fazeel the learned counsel for the plaintiff has contended that by virtue of section 49 of Transfer of Property Act the aforestated covenants of the lease deed run with the land and are enforceable. This argument has been considered in Suit No, 560/79 and on the basis of that judgment I hold that the said covenants of the lease deed are not restrictive covenants enforceable by the plaintiffs.
16. Mr. Khalid Anwar the learned counsel for the defendants Nos. 1 and 2 has contended that section 40 of the Transfer of Property Act is not applicable to the present case. The provisions of section 40 only apply in cases of transfer interparties but not to a case where transfer has been affected by operation of law. Section 5 of the Transfer of Property Act defines transfer of property in the following manner: "5. Transfer of property, defined. -In the following sections 'transfer of property' means an act by which a living person conveyes property, in present or in future, to one or more other living persons, or to himself, or to himself and or more other living persons; and to transfer property' is to perform such act. In this section 'living person' includes a company or association or body of individuals; whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals."
' Section 2(d) of the Transfer of Property Act clearly provides that save as provided by section 57 of this Act 'nothing contained in the Transfer of Property Act shall be deemed to affect any transfer by operation of law or by or in execution of a decree or order of a Court of competent jurisdiction'.
Reliance has been placed on the case of Queens Land Insurance Co. Ltd. v. Br. India Steam Navigation Ltd. (1). The aforestated provisions of Transfer of Property Act clearly lay down that it applies to the transfer of property which is a result of an Inter-parties act. The transfers made by operation of law are excluded from the applicability of the provision of this Act. This principle could be applied to the transfer made to Dr. L. R. Khan but surely it cannot be extended to the sale- executed by the legal heirs of Dr. L. R. Khan to the defendants Nos.1 to 3 as it was an interparties agreement. In this regard it may be noted that Mst. Nayar the predecessor-in-interest of defendants Nos. 1 to 3 had become member of the society and had agreed to abide by its rules.
17. Under these issues the only point remains for consideration is that whether the defendants are entitled to cover more than 1/3rd area of the plot. This restriction was also imposed by the lease deed and a lessee was entitled to construct on more than 1/3rd area of the plot provided K. M. C.
Grants permission in writing. This aspect of the case has been dealt with in the aforestated paragraphs where it has been held that K. M. C. Has waived this condition. From the evidence it is clear that in most of the plots including the plaintiffs plots in all the suits covered area is 2/3rd of the area of the plot. How can such persons seek enforcement of this clause in the lease deed.
18. Mr. Arif Husain the learned counsel for the plaintiffs has submitted that the property was transferred to the defendants Nos. 1 to 3 after obtaining no objection from the Society and the defendants had also applied to the Society (Exh. 10 in Suit No, 644/79) allowing the members to construct multi-storeyed commercial building if sanctioned by K. M. C. And K. D. A. On the basis of these facts it has been argued that the defendants Nos. 1 to 3 were aware of the restrictive covenants in the lease deed and the restrictions imposed on the members of the society. The learned counsel further contended that since restriction was imposed for the benefit of the residents of the locality not only the lessor but the allottees can also file suit for enforcement of such covenants. The learned counsel has referred to the case of Notingham Patent Brick & Tile Company v. Butler (2). In this case the owner had sold and conveyed its land during 1865, 1866 and 1867 in 'thirteen lots to different purchasers, each lot being subject to covenants
(1) PLD 1954 Kar. 389 - (2) 15 Q B D 261 entered into by the purchasers restricting the use of the land as a brickyard and in other respects.
The defendant subsequently became the purchaser of Lot 11, but the deed of conveyance to him did not contain the restrictive covenants. In 1882 the plaintiffs, a company for manufacturing bricks, contracted to purchase Lot 11 from the defendant under conditions of sale which stated that the property was sold subject to any matter or thing affecting the same, whether disclosed at the time of sale or not; and the restrictive covenant was not mentioned in the contract. The plaintiff paid deposit and having subsequently discovered that there were restrictive covenants, claimed to rescind their contract and sued the defendant to recover the amount of the deposit. The question for consideration was whether the plaintiff as purchaser was bound by the restrictive covenants contained in the deed of September, 1866. It was held that "It appears to be abundantly clear upon the authorities that a purchaser with notice of such restrictive covenants is bound by them.".
Further the following observation was made: "The principle which appears to me to be deducible from the cases is that where the same vendor selling to several persons plots of land, parts of a larger property, exacts from each of them covenants imposing restrictions on the use of the plots sold without putting himself under any corresponding obligations, it is a question of fact whether the restrictions are merely matters of agreement between the vendor himself and his vendees, imposed for his own benefit and protection, or are meant by him and understood by the buyers to be for the common advantage of them. If they are meant for the common advantage of a set of purchasers, such purchasers and their assigns may enforce them inter se for their own benefit."
19. The principle enunciated in this case may not apply in the present case for the simple reason that it has not been fully established that the restrictive covenants were for the common benefit of the members of the Society in general. The second reason for not applying this principle is that the restrictive covenants in the lease are not absolute and are conditional. As discussed above they are subject to variance with the consent of K. M. C. Which has granted its consent to such variation.
20. The second case relied upon by Mr. Arif Hussain, is Rogers v. Hosegood (1). In this case there was a restrictive covenants in the sale deed not to erect more than one messuage or dwelling house, to be used as a private residence only, and that no trade or business should be carried on upon it. The covenants were expressed in the deed of conveyance. However when another party purchased such covenants were not specifically mentioned and when a block of flat was to be constructed an action was filed. It was held that the "benefit of a restrictive covenant has once been clearly annexed to a piece of land, the presumption is that it passed by assignment of that land, and may be said to run with it, as well in equity as in law, without proof of special bargain or representation on the assignment. In such case the covenant runs with the land because the purchaser has brought something which inhered in or was annexed to the land brought and the purchaser's ignorance of the existence of the covenant does not defeat the presumption". For the reasons already stated above the principle of this case are not applicable to the present case.
21. The third case was Day and others v. Waldron (2). In this case, a lessee covenanted not to make any alteration in the arrangement or appearance
(1) (1900-1903) All E R 915 (2) (1919) 88 L J R. 937 of the demised premises; not to sue the demised premises except as a private dwelling house; and not to do any act in or upon the premises which would be or could become a nuisance to the lessors, owners or occupiers of the neighbouring messuages. The lease was one of number of similar leases granted to the builders of the neighbouring houses on the same estate, and containing similar covenants. The defendant, without the consent of the lessor, by certain internal structural alterations, converted the premises, which previously had been used only as a private dwelling-house, into three flats and a maisonnette, and sub-let them to different tenants. It was held that those operations constituted breaches of all the covenants. This case is clearly distinguishable on facts as alteration was made without the consent of the lessor whereas in the present case the lessor has granted permission to the defendants to construct a multi-storeyed building and has commercialised the same. My findings on Issues Nos. 4 & 5 are in the negative.
Issue No, 6. -Plot No, 366 JM was a residential plot. The defendants Nos. 1 to 3 applied to the Master Plan and Environmental Control Department, Karachi Development Authority for commercialization of the said plot. At that time Sind Building Control Ordinance had been enforced and K. D. A. Was appointed as an Authority under the said Ordinance. Mr. Khalid Anwar has in detail enumerated the statutes governing the Town Planning and Building Control from time to time. K. D. A. By its letter dated 21-10-1979 granted no objection certificate for the commercialization of the plot with the following conditions:
(1) 8'-6' Arcade should be left as marked on the plan.
(2) 10' compulsory open space should be left as marked on the plan.
(3) 62 angle to be maintained after 1st floor.
(4) Plot ratio should be allowed 1:2.
(5) Owner is bound to pay the commercialization charges to the concerned Department/Offices etc.
(6) Building plan should be submitted to D. C. B-II for approval."
' The defendants had also submitted for approval plan for construction of shops and flats. On 22- 10-1979 the plan was approved on the following conditions: "The Building Plan for the abovementioned plot attached is hereby approved and you are permitted to carry out construction on the above said plot accordingly: ' Provided this does not entitle you to build on land not lawfully conveyed to you nor does it include permission to occupy any land or road of the Karachi Development Authority, the Karachi Metropolitan Corporation or the Government with building material: ' Provided the right of easement is a matter between the concerned parties with which the K. D. A.
Has no concern: ' Provided this holds good only if the work is started within one year from date hereof, whereafter this approval shall be deemed to have lapsed: ' Provided rain water spouts and spouts from balconies, windows, shops and doors of the building shall not project on or overhand public Karachi Metropolitan Corporation or the Government ' Provided plinth cornice shall not project more than two inches on any public street for ornament purposes: ' Provided you shall give intimation in writing to the undersigned on the enclosed form "D" after lying first course of plinth and shall not proceed further with the work for a period of one week: ' Provided the construction shall be carried out under the supervision of a Licenced Architect.
' Provided the Licensed Architect and the owner shall be fully responsible for all the structural designs and standard specifications to be provided in the execution of the work.
' This approval is liable to be due to any mis-representation of the facts.
' Subject to the payment of commercialization charges to concerned Departments/Offices."
' The Plaintiff made representation to Director, Master Plan and Environmental Control on 11-11-1979 who endorsed a note on the application saying "PI. Stay constructions". However, subsequently the Authority expressed its inability to take any action as the matter was under litigation. The defendants first paid commercialization charges on 20-8-1979 and the balance was paid on 1-9- 1979. A sum of Rs, 53,370, was paid on 1-9-1979 towards additional floor charges. This amount was received by K. D. A. And remitted to K. M. C. The learned counsel for the plaintiff has contended that when Suit No, 644/1979 was filed, on 19-8-1979 the defendants Nos. 1 to 3 gave undertaking that they would not construct beyond two storeys but they proceeded to get their plan passed for four storeyed building. By this action the defendants Nos. 1 to 3 did not commit any breach of undertaking. This does not vitiate the plan which was approved by competent authority. Nothing has been alleged to show that the authority granting approval of plan and its commercialisation was not competent to pass such order. The main contention is that such approval is in contravention of the condition of lease deed, violates the easement rights of the plaintiffs and is against the principles of natural justice. The first contention has already been dealt with under Issues Nos. 4 and 5. The second contention is subject-matter of Issue No, 8 and their contention will be dealt with hereunder.
22. Mr. Arif Husain the learned counsel for the plaintiffs has contended that in terms of Building Rules of K. D. A. (Exh. 5/2 and 5/3) no plan could have been approved without notice to the plaintiffs and other neighbours. And as no notice was issued the action of K. D. A. Is illegal. The rules referred by Mr. Arif were draft rules and were to be approved and required vetting from the Law Division. P.
W. 2 has produced it and stated that rules were finalised in 1979 and were followed by K. D. A. But the approval of the Government had been not accorded till then it is thus clear that it would have come in force only after the approval of the Government and not before that. It therefore follows mere non-observance of such rules will not vitiate approval of K. D. A. The learned counsel for the plaintiff has contended that the plan for multi-storeyed construction could not be passed as Martial Law Authorities had banned construction of such buildings in the vicinity of Mazar-e- Quaid-e-Azam. No such rule, regulation or notification has been produced. Ahmad Husain, Deputy Controller, Buildings and Town Planning Authority has stated that there is no restriction on construction of multi-storeyed buildings in the neighbourhood of the Mazar of Quaid-e-Azam. The learned counsel for the plaintiff has relied upon a press release of K. D. A. Published in "Dawn" dated 16-5-1979 whereby it was stated that "no new building will be approved within 3/4 of a mile radius of the Mazar if its height exceeds the podium level". The witnesses examined by the plaintiff have expressed complete ignorance about any rule or regulation to this effect. In the absence of any proof to support the contention of the learned counsel for the plaintiff the same cannot be accepted.
' My finding on Issue No, 6 is that the plan approved by K. D. A. Is valid and not against principles of natural justice.
Issue No, 7.--Not pressed.
23. Issue No, 8.-The plaintiffs have laid great emphasis on this Issue. The Plaintiffs have claimed that construction of the proposed building will violate their rights of easement of light, air and privacy. As regards rights of easement and air it has been contended by the plaintiffs in Suit No, 644/79 and 82/80 that the proposed building is on the western side of the plaintff and it will block light and air. P. W. Muhammad Ishtiaq, Deputy Controller Master Plan Department, has stated that in the year 1968 amendments were made in Building regulations in respect of Garden Area but were followed for the entire Karachi. It provided rules for approval of plan for multi-storeyed buildings laying down the angles with which they were to be constructed. It provided that an angle of 688 was to be maintained from the edge of the sides of the plot. The object of maintaining this angle is to protect the interest of the neighbours. Now K. D. A. Has approved plan with an anagle of
620. This restriction according to P. Ws. "has been placed on the construction of the multi-storeyed building, and as a result the neighbours are benefited as to light, air and privacy". The construction has been thus designed in a manner that it would not obstruct the light and air of the plaintiffs and other neighbours. Except a bar statement that light and air will be obstructed no definite instance of such obstruction has been produced. The plaintffs have not even examined any architect to prove that the proposed building on completion with the prescribed angle will obstruct light and air of the neighbours. Plaintiff' witness (P. W. 2) has testified against them. Besides the angles maintained there is a compulsory side space left in all the plots. In these circumstance it is not established that plaintiffs' right of light and air will be obstructed.
24. Mr. Fazeel the learned counsel for the plaintiffs has referred to illustration (b) and (d) to section 7 of the Easement Act. Section 7 provides that easements are restriction on the rightful owner of the land over which it is exercised from enjoyment thereof. It restricts the right and does not absolutely bar it. Such restrictions are placed on the exclusive right to enjoy and rights to advantages arising from situation. These principles have been further clarified by giving six illustrations of which two relevant one are as follows: "(b) The right of every owner of land that the air passing thereto shall not be unreasonably polluted by other persons.
(c) The right of every owner of land to so much light and air as pass vertically thereto."
' These provisions clearly show that every owner of an immovable property subject to any law for the time being in force has the exclusive right to enjoy without disturbance by another the natural advantages arising from its situation and also to enjoy and dispose of the same. These rights are inter alia restricted to the extent that the owner of land in town will build on such land subject to Municipal Law; to receive the air passing thereto not unreasonably polluted by other persons and to receive so much light and air as pass vertically thereto. Applying these principles to the present case it is not established that the air will be polluted by others. The plaintiffs have also failed to establish that the multi-storeyed building will obstruct the light and air which pass on plaintiffs' property vertically. The angles maintained in multi-storeyed building fully protect the right of neighbours to receivd light and air which pass vertically. In view of this finding the contention that the plaintiffs have been enjoying right of easement of light and air for more than 20 years is of no significance.
25. Mr. A. Rauf the learned counsel has adopted the arguments of Mr. A. H. Pirzada and Mr. Khalid Anwar and by way of reply only referred to provisions of sections 37 to 48 of Easement Act to show that the plaintiffs' right of easement has extinguished. In view of my finding on the above issue 1 need not refer to this argument now.
26. In this regard it has to be examined whether plaintiffs' right of privacy will be violated. Mr. A. A.
Fazeel referring to the statement of the witnesses and section 18 of Easement Act has contended that customary right of Privacy has obtained statutory recognition and further that the same has been proved to exist. Khurshid Begum P. W. 3 has stated that during construction and "after completion of building her privacy will be affected in every possible way". She has further stated that "if building of ground and 1st floor had been constructed her privacy to some extent would have been affected but in that case only one or two families would have been residing. Now when this building is fully constructed scores of families would be residing in it and in the commercial area of the ground floor thcusands of people would be coming which would obviously obstruct our peace and privacy". P. W. 4 has stated that this building will affect their peace and privacy and their lives will be in danger. Sharifunissa Abbasi (P. W. I in Suit No, 644/79) who is the Secretary of the Society has stated that on account of multi-storeyed building the population of the Society will increase which will cause nuisance and lawlessness will increase. She has further stated that the right of privacy will be seriously affected. Hajee Ahmad P. W. 1 has stated that there will be a total number of 32 windows in the building and only 8 windows will open on the side of the plaintiffs in Suit No, 644/79 and 82/80. On the ground floor there will be shops without any windows on the plaintiffs side. He has denied that the plaintiffs' right of privacy will be disturbed. P. W. 4 has stated that 4 windows of his house face Plot No, 636. The Plaintiffs are seeking to enforce customary right of privacy which has its origin in the recent past and does not travel back to time immemorial. P. W.
3 has admitted the right of privacy was infringed even when the houses were of up to permissible limits i. e. Ground and first floor. The Secretary of the Society was herself a signatory to application whereby request was made to the Society to allow commercialization. In my opinion the plaintiffs have failed to establish customary right of privacy. The evidence of the plaintiffs does not fulfill the test laid down in Fazel-e-Razq's case (1). In view of the aforestated judgment of the Supreme Court and judgment in Suit No, 560/79 where this aspect of the case has fully been discussed the plaintiffs have failed to establish right of privacy.
Issue No, 9.-At the material time Karachi Development Authority had been appointed as an Authority under Sind Building Control Ordinance, 1979, who have granted permission to the defendants for construction of multi-storeyed building with shops on the ground floor. Karachi Municipal
(1) PLD 1980 SC 193 Corporation have also accorded their sanction for commercialisation as well as for constructing additional floors on the building. In view of the aforestated facts and discussion under Issues Nos. 4 and 5 it is established that K. M. C. Have accorded their approval.
Issue No, 10. -In view of the discussion on the aforestated Issues I hold that the defendants had purchased the plot with knowledge of the lease but no prior consent was obtained from the plaintiffs which was not necessary.
Issue No, 11. -The learned counsel for the defendants have contended that as no resolution or minutes of the meeting of the Society Committee have been produced it is not established that Ismail Hasham who has signed and verified the plaint was not Secretary of the Society entitled to file the suit. The authority, capacity and description of Ismail Hashim has not been given anywhere in the plaint except that while signing the plaint a rubber stamp of. "Honorary Secretary" has been affixed. The defendants Nos. 1 to 3 had raised the plea that Suit No, 1002/79 as filed, is unauthorised and the plaint does not disclose under whose authority it has been filed. The learned counsel for the plaintiffs has referred to the evidence of Sharifun-Nissa who has stated that she was unanimously elected as secretary on 11-7-1980. She has further stated in cross-examination that Ismail Hashim was the secretary when he signed the plaint. No documentary evidence or record of the society has been produced to establish that at the material time he was the secretary of the Society. Mr. Fazeel has contended that under section 23 of the Co-operative Societies Act the Society can file suit. There can be no cavil with this contention but such persons have to act through some living persons who are properly authorised to do so. As the defendants had raised this issue and all the relevant records and information were in possession of the plaintiffs they should have produced the same. In the absence of any record I hold that Ismail Hashim was not an authorised person to file the suit.
Issue No, 12. -In view of the discussion under the aforestated issues there was no privity of contract between the plaintiffs and defendants.
Issue No, I3. -Suit is dismissed with no order as to costs.