The Judgment of the Court was delivered by
Gentle, J.:— The plaintiff deity is the appellant, suing by his shebait and next friend, and is the owner of no. 7, Lindsay Street Calcutta, (hereinafter called ‘no. 7’). The premises consist of shops on the ground floor and flats and offices on the upper part which are let to separate tenants. On the ground floor there is a wide corridor running north and south, between two shops, through the block; the north end enters Lindsay Street and the south end is opposite to an entrance to Nos. 4 and 4A, Madge Lane. There is a staircase at the south end and on the west side of the corridor which leads to the upper part of No. 7. On the front of No. 7, in Lindsay Street, there is a balcony projecting from the first floor level of the premises over the footpath which is supported by 2 pillars on its outer side, the pillars rise from the edge of the pavement. A row of railings are on the outer side of the balcony. The entrance to the corridor is beneath the balcony, from the covered way below it. Lindsay Street runs east to west and Madge Lane from north to south. Madge Lane is on the east side of No. 7, which stands at the corner where the two streets meet. Numbers 4 and 4a, Madge Lane (hereinafter called “the theatre”) is in the occupation of the defendant company, it is on the immediate south of No. 7 and is separated from it by a passage 3 feet wide.
2. The theatre was formerly known as the Grand Opera House, it is now called the Globe Theatre and the company uses it for cinema performances. Prior to the year 1917, theatrical or operatic performances were held in it. The majority, if not all, of the patrons of the theatre gain access to it by means of the corridor. Number 7 was formerly known as Grand Opera Mansions. The defendant company, unquestionably, has the right for itself and for members of the public attending the theatre, to use the corridor to obtain access to, and egress from, the theatre from Lindsay Street.
3. In the plaint it is alleged that the company wrongfully interfered with, and trespassed upon, the plaintiff's premises No. 7, by erecting upon or affixing thereto, certain posters, advertisements, signboards, illuminated signs and lights, advertising the cinema performances. Claims are made for an injunction restraining the company from continuing the acts of which complaint is made; a mandatory injunction directing the removal of the erections and affixtures; and Rs. 6000 as damages for trespass. In 1906 Mr. Duck Cohen acquired the theatre and No. 7, which then comprised one property. In 1907 they were divided and separately assessed. By deed, dated 7-3-1924, Cohen conveyed the theatre to Mr. C.L Phillips (who was the nominee of Mr. J.C Galstaun). On 25-5-1936 the plaintiff purchased No. 7 and it was conveyed to him, by deed of that date, by Mr. A. Curlender, the executor of Mr. Cohen who died on 16-1-1927.
4. At the time when Cohen was the owner of both properties, he granted a lease, dated 2-3-1917, of the theatre to Mr. Ducasse for a term of 15 years, including an option period of 10 years, the option being exercised. This lease terminated by effluxion of time on 31-3-1932. Ducasse assigned this lease by deed, dated 17-12-1920, to Bijou Ltd., which, in its turn, assigned it to Messrs Sidhwa and Kooka by deed dated 7-3-1924. Sidhwa and Kooka, subsequent to the assignment of the 1917 lease in their favour, caused the defendant company to be incorporated. On 18-7-1929 the theatre was leased to the company for the term of 10 years to commence on 1-4-1932, the (day after the expiration of the 1917 lease) under which it was in occupation of the premises at the date the suit was instituted. It would appear that the company was treated as the assignee of the 1917 lease for some time prior to its expiration. The theatre was used as a cinema from 1917 by Ducasse, Bijou Ltd., and Sidhwa and Kooka and by the company up to the date of the expiration of the lease in 1932 and the company hag continued to do so until the present time.
5. The details of the advertisements, illuminated signs and lights of which the plaintiff complains and for which relief is sought in the suit can now be stated, and the positions identified in the photographic exhibits.
(1) Signboard 20′ by 10′ attached to the railings of the balcony. Exhibits 5 and 7a in place of the board of M.L Shaw Ltd. (2) Rectangular illuminated sign “Globe” fixed to the balcony cornice and at a right angle to it. Exhibit 4. (3) Neon electric sign “Globe” beneath, and suspended from the balcony. Exhibit 4. (4) Show case for posters on the east wall of the corridor. Exhibits 2 and 3 in the space above the brick or tiling on the right hand side of the man in the photographs. (5) Three posters on the east wall of the corridor. Exhibits 2 and 3. (6) Poster board on the south end of the west wall of the corridor. Exhibits 1 and 3 beyond the pannelling. (7) Board above, and at the south end of, the corridor facing the camera. Exhibits 1, 2 and 3. (8) Sundry electric lights in the corridor. Exhibits 1, 2, 3 and 4. (9) Poster boards at the foot of each pillar supporting the balcony. Exhibit 7a.
6. Items 1, 4 and 5 were removed between the dates of the filing and the trial of the suit, item 6 ceased to be shown 2 years before the institution of the proceedings; and item 9 was not used at the date of the trial, probably on account of the erection, about February 1942 of a baffle wall between the two pillars (see Ex. 4 shewing a poster displayed on this baffle wall to which the plaintiff takes no exception.)
7. Blagden, J. awarded the plaintiff damages for trespass, in respect of item 1, Rs. 940 and item 9, Rs. 5 and he made a declaration (which was not sought in the plaint) that upon 14 days' notice being given by the plaintiff to the defendant company so to do, it should remove items 2 and 3 from the positions which they occupy and, in which event, the company should have the right to erect them at its own expense in two other specified places where they, or somewhat similar signs, were fixed prior to 1934. The learned Judge dismissed the suit with respect to the other items and claims. He assessed the amount of damages in respect of the items upon which the company succeeded in case his conclusions regarding them were reversed on appeal.
8. The plaintiff has preferred an appeal against the findings of Blagden, J. which are adverse to him and the company has filed a memorandum of cross-objections with respect to the decree against it. As regards item 1, the evidence and circumstances are distinct from the other items and can be dealt with separately from the others. Items 2 and 3 can be considered together. Items 4, 5, 6, 7 and 8 relate to the corridor and will be grouped together. Item 9 is another separate matter. I propose to deal with them as they are grouped and separated above.
9. Item 1. Balcony signboard. The plaintiff became the owner of No. 7 and it was conveyed to him by deed dated 28th May 1936 before which date he had no interest in the property. Prior to the conveyance to the plaintiff the property was vested in Mr. Curlender, Cohen's executor, who granted a lease dated 20th July 1935 to the company of a four-roomed flat in No. 7 for 3 years at Rs. 200 p.m commencing from 1st January 1935. In 1935, the company erected a sign board, 20′ × 10′, upon the railings of the balcony facing Lindsay Street on which placards were pasted advertising the performances in the cinema. The original board remained from 1935 to May 1937, when repairs and decorations were carried out to No. 7; the board was then taken down for about a month and no advertisement was displayed on the railings. When the work was finished the company replaced the original board by two boards, somewhat smaller, which were used in alternate weeks, one board being removed at the end of each week and replaced by the other with the advertisement for the ensuing week's performances. In August 1939, when the company vacated the flat after holding over from January 1938, the date of the expiration of the lease, the boards were removed and never replaced. This was about a year after the suit was instituted. The boards were displayed on the railings for a little more three years during the plaintiff's ownership of No. 7 and for about one year previously. Soon after the plaintiff purchased the property letters were written on his behalf to the company, regarding all the advertisements, to which replies were not sent. On 12th September 1936 the company was expressly requested to remove the railing board which request was ignored. It would seem that at some time meetings took place between the parties with a view to settlement of the matters in dispute but nothing eventuated.
10. A Mr. Duveck was the beneficiary under Cohen's will. Sidhwa, the company's General Manager said he negotiated for the lease of the flat with Duveck, who was looking after the property for the executor, Mr. Curlender. He told Duveck that the flat was required for the purpose of advertising the company's business. Duveck gave permission for the board to be fixed to the railing and stated the rent included the balcony and the right to put up the advertisement. No reference is made in the lease to this. Duveck was not called as a witness and Blagden, J. did not accept Sidhwa's evidence in this respect, having every reason to reject it. I am satisfied that the board was not erected with the leave or license of either Mr. Duveck or Mr. Curlender.
11. It was argued that the demise in the lease of 20th July 1935 (which was current at the time of the conveyance of 25th May 1936 to the plaintiff) included the balcony, and the company was therefore entitled to erect and maintain the board upon the railings which were part of the balcony. The demise in the lease, so far as is material, was
“all that flat comprising four rooms with lights (may be an error for “rights”) over the front and back verandah”
12. And the company covenanted to use the flat and premises
“for the purposes of residence and offices only and for no other purposes whatsoever.”
13. The balcony was not included in the demise. Even if “lights” should be “rights” it would not give the company more extensive rights over the balcony than it received with respect to the flat and a right to affix an advertisement board of the cinema performances would not be included in “rights” unless it was established that such a right existed and appertained to the flat at the date of the grant. There were other boards erected on the railings: see Exs. 5 and 7A “M.L Shaw,” but the terms or circumstances for this to be done have not transpired. In 1923 and 1924 the company paid Cohen Rs. 25 per month for exhibiting an advertisement board for several months. There is no evidence that the occupant of the company's flat ever had the right to affix an advertisement board to the railings. The lessee's covenant restricted the use or the flat to residential and office purposes. Even assuming, being for office purposes, the company could place its name upon a board, this could be no more than giving its name and office address and would not extend to, and include, a display of a large placard, changed weekly, advertising the films being shown and the performances taking place in the theatre. The company was not the tenant or lessee of the balcony as it was not part of the demise which gave only lights (or possibly rights) over it. The company had no right of any sort to fix the board to the railings and its action in doing so and maintaining it was a trespass to No. 7 during the whole time it was in position. During the period from 1937 to 1939, the removal of the board and immediately replacing it by another was the same as continuously maintaining one board in position.
14. No injury to the structure was caused by the affixation or removal of the board and the learned Judge properly rejected the evidence of such injury and the cost of reparation of it. He assessed the damages by reference to the value to the company of the advertisement and what its cost would have been and he considered the monthly sum paid by another undertaking for a larger board. He held the display of the company's board was worth Rs. 15 per month and assessed the damages at that rate from August 1935 until 1st August 1939 when the board was removed. He awarded Rs. 940 being 47 months at the above rate, deducting one month for the period in 1937 when the board was not displayed while the repairs to the premises were being carried out. Blagden, J. overlooked the circumstance that the plaintiff did not become the owner of No. 7 until 25-5-1936, about ten months after the date from which he assessed damages and during which period Curlender, as executor, was the owner and against whom the trespass was committed during that time. An action for damages in tort is not assignable and no wrong was committed against the plaintiff before the date he acquired No. 7. The plaintiff cannot recover damages for trespass to a property which he did not own and in which he had no interest although subsequently he became the owner. The damages must be limited to the trespass to the premises committed against his ownership and he cannot recover damages prior to 25-5-1936. From this date the trespass continued for about three years, in all 37 months, after deducting one month in 1937 when the board was not displayed.
15. When trespass consists of a mere user of the soil by passing over it without doing any injury, the damage recoverable is the amount which a reasonable man would be willing to pay for the right of user and in the case of using a way over land, the measure of damages is the usual charge for a way leave in the district. See (1871) 6 Ch. 7421 and (1871) 6 Ch. 7702 and Clerk and Lindsell's Torts, Edn. 9 at p. 424. The same principle must apply when the trespass is by fixing and using an advertisement upon another person's premises. The company paid Rs. 25 per month in 1923 and another undertaking now pays Rs. 35 per month for a board, larger than the company's, affixed to the railings. Upon the whole the amount assessed of Rs. 15 per month does not appear to be wrong but it should have been for 37 and not for 47 months and the amount awarded must be reduced by Rs. 150 to 790. (After reviewing the evidence on remaining items, his Lordship continued.)
16. Before considering the legal position, the facts regarding items 2 to 8 can be summarised as follows: One electric sign, which has been called the electric box, was fitted above the entrance to the corridor and on the lintel between the two pillars, in which was illuminated “Grand Opera House” until 1917, “Bijou” from 1917 to 1922 or 1924, and thereafter “Globe” until 1934 in which year the box was removed. An electric sign “Globe,” was first fixed about 1929 on the cornice of the balcony and parallel with it, from which position it was removed in 1934 when it, or another similar sign, was then fixed in the present position of item 2, projecting over the roadway. The neon sign, item 3, was first fixed in 1934. The walls of the corridor were used, in items 4, 5 and 6, to advertise the performances in the theatre, by Cohen prior to 1917 and there, after by his lessees and their assigns up to 1924, when Cohen conveyed the theatre to Galstaun's nominee and since 1924 by the company until such time as they were removed before or after the suit was instituted. The overhead wall space, item 7, was first used after 1924 (probably about 1929) when the company erected a board in that position. The corridor was lighted by the occupier of the theatre prior to 1917 and up to the present time, being item 8. In regard to the box sign and items 4, 5, 6 and 8. Prior to 1917, up to and including 1924 and until the present time, without interruption the advertisements and lights of the theatre were openly and before the world attached to No. 7, Lindsay Street and existed solely for the benefit of the theatre premises. They occupied their respective positions by virtue of a right liberty or privilege held or enjoyed by the theatre and were the subject, matter of a right or privilege belonging or appurtenant to the theatre. The relevant principles of law and the authorities now require to be considered. It was agreed that English and Indian law is the same save when a statute of either Legislature has prescribed the legal principles for its own country.
17. Firstly it is necessary to state the material provisions of three deeds, the lease of 2-3-1917, the conveyance of 5-3-1924 and the lease of 18-7-1929. By the lease dated 2-3-1917, for the term of 15 years, Cohen demised to Ducasse the theatre and all liberties, privileges, easements and appurtenances thereunto belonging or in anywise appertaining or enjoyed therewith together with the right to the lessee and the public attending at the theatre to use in common with the tenants of No. 7, the corridor. By cl. 10 the lessee covenanted to allot or reserve free of charge for the proprietor of no. 7 (and not for the lessor of the theatre) in consideration of his permitting and allowing the corridors and entrance to the theatre from Lindsay Street and other things being used by the lessee, 6 seats in the front row of the dress circle.
18. Daring the currency of the 1917 lease, by deed dated 5-3-1924, Cohen granted, conveyed transferred and assured unto Phillips (Galstaun's nominee), subject to the above lease, the theatre and all liberties, privileges easements and appurtenances whatsoever belonging or in anywise appertaining or usually held or enjoyed there, with or reputed to belong or be appurtenant thereto together with the right to Phillips but in connection with and for the purposes of the theatre and while used for such purposes only and the public attending at the theatre to use in common with the inmates of No. 7 the corridor leading to the theatre from Lindsay Street.
19. Before the expiration of the 1917 lease and after the 1924 conveyance, a deed of lease, dated 18-7-1929, was granted by certain receivers, with the approval of Galstaun who was a party to it, to the company. It is immaterial why the receivers made the grant; it is common ground that it was as effectual as if Galstaun, or his nominee Phillips, had made it. The lease was for a term of 10 years commencing on 1-4-1932 (the day after the expiration of the 1917 lease). The demise was of the theatre and all liberties, privileges, easements and appurtenances thereto belonging or in anywise appertaining or enjoyed therewith together with the right to the lessee and the public attending at the theatre to use in common with the tenants of no. 7 the corridor leading to the theatre from Lindsay Street. By cl. 10 the lessee covenanted to allot and reserve 5 seats in the dress circle free of charge for the receivers, (who were the lessors). (But this was not stated to be, as in the 1917 lease, in consideration of permission to use the corridor).
20. The actual words of demise in each deed vary slightly but they have substantially the same effect. Each demise was of the theatre and all liberties, privileges, easements and appurtenances thereunto belonging or in anywise appertaining or enjoyed therewith. Most of the authorities dealing with liberties, privileges and rights, which are included in a demise of land, relate to rights of way, light and air. But a right for one person to advertise on land belonging to another person has been held to be the subject of an easement (vide (1879) 12 Ch. D. 2613 and (1874) 9 Q.B 2964) when the essentials of servient and dominant tenements are present and when the right is necessary for the proper enjoyment and use of the latter in which event the right exists of an easement in favour of the dominant tenement to advertise on the servient tenement.
21. The general words in the 3 deeds are substantially in accord with those contained in Section 6(2) of the English Conveyancing Act 1881 which are deemed to be included in a demise in England unless a contrary intention appears in the deeds. The inclusion of these words in a deed in this country must have the same, and certainly not less, effect as when they are deemed to be included by the Conveyancing Act.
22. In (1921) 1 Ch. 322,5 Russell, J. as he then was, held that the word “appurtenances” includes the privilege or right to a right of way which was being enjoyed by the existing tenements of land at the date of its conveyance by a vendor to a purchaser although the right or privilege had not become an easement, in the strict sense, before the demise. In such a case the right is sometimes called a quasi-easement or right in the nature of an easement. In (1871) 6 Ch. A. 1666 the grant included watercourses, rights, privileges and appurtenances whatsoever belonging or appertaining or held used enjoyed or reputed as part of the hereditament conveyed. The Court of Appeal in Chancery cited, with approval, the observations of Erle, C.J at page 161 in (1866) 1 Q.B 1567 that “it is clear law that upon a severance of tenements, easements used as of necessity or in their nature continuous, will pass by implication of law, without any words of grant” and the opinion was expressed in (1871) 6 Ch. A. 166 at p. 175 that having regard to the general words in the conveyance its language was sufficient to pass the right to the watercourse even if it was not necessary but only convenient for the use of the demised premises. In (1875) 10 Q.B 3608 a house, cottage and stable, called “Roseville,” were demised for 10 years. The lessor owned the adjacent farm upon which was a private roadway. After the grant, the lessee, with permission of the lessor, built a hay loft over the stable and with like permission used the lessee's private road to carry hay to the loft and such use continued for the rest of the term of 10 years, when the lessee purchased the freehold of “Roseville.” This conveyance included general words, in substance, to the same effect as in the three deeds in the present suit. There was no express grant of the use of the road on the farm, which the vendor of Roseville retained. At p. 368 Blackburn, J. observed that during the term of 10 years preceding the conveyance of Roseville the tenant continued to use the road either as appurtenant to it or enjoyed the use as if it were appurtenant. It was held that the right to use the roadway for the purpose of carting hay passed to the purchaser under the general words in the demise. In (1884) 26 Ch. D. 434,9 a stable had been built by the plaintiff on some land and upon which he made a private road from the highway to the stable by which access to it was obtained. The Railway Company bought the stable, the plaintiff retaining the land upon which the road was made. The soil of the road was not conveyed and no express mention was made of it in the conveyance. The demise of the stable included all “rights, members or appurtenances-to the hereditaments belonging or occupied or enjoyed as part, parcel or member thereof.” It was held that notwithstanding unity of possession by the plaintiff of the stable and of the land and road at the date of the conveyance, a right of way passed to the purchaser under the general words in the deed. In (1881) 18 Ch. D. 61610 Fry, J., as he then was, said:
“I think that when there are two adjoining closes and there exists over one of them a formed and constructed road which is in fact used for the purpose of the other and that the other is granted with the general words ‘together with all ways now used or enjoyed therewith’ a right of way over the formed road will pass to the grantee even though that road had been constructed during the unity of possession of the two closes and had not existed previously.”
23. In (1884) 26 Ch. D. 434 (cited above) Cotton L.J, at pages 447/8 pointed out that if before the demise of the stable to the Railway Company, the road on the adjacent land had been the property of some one other than the vendor of the stable and it had been enjoyed by the stable proprietor, it would have become an easement; it was not an easement as the vendor owned both the road and the stable but the use of the road was a right which passed to the grantee of the stable as that which had been used, held, occupied and enjoyed together with the stable. A decision to the same effect is to be found in (1903) 2 Ch. 16511 in which a right of way was not included in the demise and the deed contained no general words but, by virtue of the Conveyancing Act 1881 the general words in S. 6(2) of the Act were incorporated in it. The defendant was the owner of the demised and also some adjacent premises which he retained. Prior to the conveyance to the plaintiffs the defendant leased the premises for 21 years to a firm which assigned the lease to the plaintiffs who, before the expiration of the lease, purchased the property from the defendant. During the currency of the lease the defendant allowed the managers of the occupiers to use a yard in the retained premises for all purposes of the business carried on at the demised premises. It was held that this right passed to the plaintiffs by the general words of S. 6(2) incorporated in the conveyance.
24. When, by the general words in a conveyance, a right is included in the grant which the evidence establishes belongs or appertains to or is enjoyed or is used with the demised premises, the full exercise of that right is not necessarily restricted nor lessened by an express provision regarding the subject-matter of the right. In (1929) 1 Ch. 52112 (a decision of the Court of Appeal in England reversing the judgment of Russell, J. reported in (1926) 1 Ch. 10213) a conveyance contained an express grant to the purchaser of a right of way described as coloured green on a plan endorsed on the deed; the part coloured green was four feet wide and formed part of a wider roadway; at the time of the conveyance, a right of access to the demised premises for vehicles over the whole roadway was enjoyed with the property conveyed; the general words in Section 6(2) of the Conveyancing Act, incorporated in the deed, would convey the right over the whole roadway unless the deed contained a provision showing a contrary intention and by application of the maxim “expressio unius exclusio alterius.” Pollock M.R at p. 528, observed that the correct way to approach the conveyance was to bear in mind the circumstances and facts existing at the time and what was the privilege being enjoyed and which would be demised by the general words, and then to see whether or not the terms of the conveyance excluded the grant of the whole. It was held that the demise by the general words was not excluded by the express demise; the express demise did not amount to a contrary intention excluding the general words, which ordinarily are deemed to be incorporated in the instrument. This was a decision under the English Conveyancing Act which, by S. 6(4), excludes the general words deemed to be incorporated in a demise when the deed contains a contrary intention to include them. In principle there can be no difference between the exclusion of the general words by an expression in the deed showing the intention indicated in sub-s. (4) and an intention to exclude or limit the effect of the general words contained in a deed in which they are included. When there is not an express or implied provision in a deed, containing general words, restricting or nullifying their effect, then they must have full force and virtue. The three deeds of 1917, 1924 and 1929 each contains the general words of a demise of liberties, privileges and easements with respect to the theatre and later there is an express demise for the lessee, or purchaser, and the public attending the theatre, to have the use of the corridor, (limited in the 1924 conveyance for the purposes of the theatre and while used for such purposes). This express demise is clearly the right of access to and egress from the theatre by the corridor. It does not relate to the right to advertise in the corridor belonging or enjoyed before the dates of the grants nor to the rights, if any, to advertise on any other part of No. 7. Rights of advertising which belonged to or were enjoyed previously are not affected and the grant of passage does not amount to an exclusion of a right of advertisement. In (1906) 2 K.B 77214 with respect to the maxim “expressio unius exclusio alterius” and another maxim of the same kind “expressum facit cessare tacitum” Farwell L.J, observed at p. 785, that “It is not enough that the express and the tacit are merely incongruous, it must be clear that they cannot reasonably be intended to co-exist.” In the present case the right of passage and the right of advertisement can co-exist, they are not incongruous and the express demise of the right of passage is not a limitation upon the use of the corridor nor an intention to prevent or to restrict the right to advertise the theatre performances which right is demised by the general words.
25. Summarising the effect of the decisions which have been examined the result is the-following: The general words used in the three deeds of 1917, 1924 and 1929 conveyed to the, grantees rights or privileges or appurtenances which, at the date of the grant, belonged or appertained to or was enjoyed or used with the demised premises; to enable such a right to be enforced there must be a servient tenement over which the demised dominant tenement obtains the right and exercises it; it is immaterial whether, before the grant, the two tenements were in the same occupation as long as the right was then exercised; even if the right had not evolved into an easement, in the strict meaning of the word, but was a quasi easement or a gift in the nature of an easement, it can nevertheless be the subject of a demise; when a right, which is less than an easement, is conveyed it then becomes a legal easement by grant, and when a right is conveyed by general words, its effect and extent are not restricted by a later express demise regarding its subject-matter unless there is a clear intention shown by the subsequent provision that it is to be limited to the exact terms of the later words.
26. Prior to 1917 Cohen was the occupier of the two premises, the theatre and No. 7. On his No. 7, Lindsay Street premises, at positions identified by items 4, 5 and 6 in the corridor and at the site of the electric box on the front, he advertised his theatre premises and the performances held in it. He also lighted the corridor (item 8) for the benefit of the theatre and its patrons. This advertising and lighting was actually enjoyed by the occupier of the theatre for the purpose of the theatre and appertained to the theatre and it was a right or privilege belonging to the occupier. The theatre was the dominant tenement and No. 7 was the servient tenement. When two properties are severed the parties to the severance, both the man who gives and the man who takes, intend that such reasonable incidents shall go with the thing granted as to enable the person who takes it to enjoy it in a proper and substantial way—vide the observations of Bowen L.J at p. 453 in (1884) 26 Ch. D. 434. The unity of occupation was severed in 1917 when Chen leased the theatre to Ducasse, the demise including the general words regarding liberties privileges easements and appurtenances, for the term of 15 years. The right or privilege of advertising and lighting was included in the general words of the demise for the benefit of the lessee. The conveyance by Cohen to Galstaun's nominee in 1924 similarly demised the same right or privilege to the purchaser, subject to the lease of 1917 which was to terminate in 1932. This right or privilege was demised to the company by Galstaun's representatives in the 1929 lease by the general words of the demise in that deed. The acquisition of No. 7 by the plaintiff in 1936 was subject to the right of the owner or occupier of the theatre with respect to No. 7.
27. The right which passed to the owner or occupier of the theatre related solely to items 4, 5, 5 and 8 and the electric box. At those positions on No. 7 the theatre's advertisements and lighting had been displayed. Prior to 1924, no advertisements were fixed at the positions of items 2, 5 and 7 (illuminated signs and overhead board in the corridor), no right to display advertisements had been acquired in those places and they were not and could not have been the subject of the 1917 lease or the 1926 conveyance by Cohen and could not be the subject of the 1924 lease by Galstaun who had not acquired any right with regard to them from Cohen nor from anyone else. The company has not acquired any right with respect to these items; the sole contention was that they were included with the other items in the right demised by the general words in the three deeds. The company also has no right with respect to the illuminated sign “Globe” in the position on the cornice of the balcony which it occupied until 1934.
28. The company ceased to use items 4 and 5 (east wall of the corridor) after the suit was instituted in 1938; item 6 (west wall) about 1937, when the wall was reconstructed and panelled; and the electric box in 1934 when item 2 (large illuminated sign) was placed in its present position and when item 3 (neon sign) was first erected. I do not consider the non-user of items 4, 5 and 6 and the electric box has occasioned a loss of the right in respect of any of those items; the right exists still although it has not been fully exercised in recent times.
29. The matter which now requires consideration is the plea by the company of res judicata. In the 1917 lease there was a covenant by the lessee of the theatre to allot and reserve for the proprietor of No. 7, 5 dress circle seats free of charge in consideration for his permitting the lessee to use the corridor in those premises. After Cohen conveyed the theatre to Galstaun's nominee in 1924 both Cohen and Galstaun claimed these seats. Cohen filed a suit, No. 2013 of 1926, in which Sidhwa and Kooka (who at that time were the assignees of the 1917 lease) and Galstaun were included as defendants and in which Cohen claimed a declaration that he was entitled to the seats. In para. 9 of the plaint it was alleged that Sidhwa and Kooka had trespassed upon No. 7 by affixing advertisements to the pillars and the walls of the corridor. The allegation of trespass was denied in para. 11 of Sidhwa's and Kooka's written statement. The 5th issue reads “have the defendants Kooka and Sidhwa trespassed on the property of the plaintiff (Cohen) as alleged in para. 9 of the plaint?” Cohen is the plaintiff's predecessor in title of No. 7 and at the time of the 1926 suit, Sidhwa and Kooka occupied the theatre and were the predecessors-in-title of the company with respect to it. Cohen died before the disposal of the suit and it was continued by his executor.
30. The suit was tried by Buckland, J. In his judgment, delivered on 22-7-1931, he observed that Sidhwa and Kooka had only done what had formerly been done for a very long time by their predecessors and by everybody, including Mr. Cohen, who had conducted the theatre, of exhibiting sign boards and poster advertisements on the walls and the corridor and, later, the learned Judge said the demise included the use of the corridor and the posting of advertisements as had at all times been done while the premises were used as a theatre. It was held that there was no trespass and the plaintiff was entitled to no relief in that respect. Buckland, J. further held that Cohen's claim for a declaration of his right to the 5 seats also failed. An appeal was preferred by Cohen's executor against this judgment which received disposal by Rankin, C.J and Costello, J. on 11-4-1932. They reversed the decision with regard to the 5 dress circle seats and gave a decree in favour of the appellant. With regard to the advertisements on the walls in the corridor, Rankin, C.J, observed towards the end of the judgment, with which Costello, J. agreed, “we will not allow the plaintiff's (Cohen's) suit to succeed upon that item at all.” It follows that in this respect the judgment of Buckland, J. stood and was not reversed. Those advertisements on the walls are now items 4, 5 and 6. The right of the occupier of the theatre to advertise performances on the walls of the corridor was alleged and denied both in the former and in the present suits; it is a matter directly and substantially in issue in the present suit and was directly and substantially in issue in the former suit between parties under whom the parties to the present suit claim and when litigating under the same title. In these circumstances the subject-matter of items 4, 5 and 6 is res judicata between the parties and the plaintiff's claim in respect of these items must also fail on the plea of res judicata.
31. The plaintiff's claims with respect to items 4, 5, 6 and 8 were properly dismissed by Blagden, J. For the reasons already given the company had no right of advertisement with regard to items 2 and 3 (illuminated signs) and item 7 (overhead board in the corridor) and each constituted a trespass upon the plaintiff's premises from the date he acquired them on 25-5-1936 and he is entitled to succeed with respect to them.
32. Upon the evidence before him Blagden, J. assessed the amount of damages, with which there is no reason to interfere, indeed no argument was addressed upon the amounts of the assessments either for an increase or a diminution of any of the sums.
33. Items 2 & 3. No evidence was given of the date up to which the illuminated signs were used but I think judicial notice should be taken that they were discontinued by reason of war exigencies and the black out regulations. In the absence of any evidence as to the date when they were discontinued this must be taken as 3-9-1939 when war was declared. An inspection shows both signs have now been dismantled. From 25-5-1936, when the plaintiff purchased No. 7, to 3-9-1939 is about 40 months. Blagden, J. assessed the damages for items 2 & 3 at Rs. 30 per month which makes es. 1200 for the whole period. No deduction is made for the repair period in 1937 since they do not appear to have been out of use whilst work was being carried out to No. 7. Item 7. The damages were assessed at Rs. 20 p.m and Rs. 5 structural damages. Upon the same computation, as in the last 2 items, the total is Rs. 805. The damages to which the plaintiff is therefore entitled are:
Item 1
…
…
Rs. 70
Item 2 & 3
…
…
Rs. 1200
Item 7
…
…
Rs. 805
Item 9
…
…
Rs. 5
34. Making a total of Rs. 2800 for which there will be a decree against the defendant company. There will also be a decree, sought in the plaint, for an injunction and for a mandatory injuction in respect of items 2, 8 and 7 for their removal within one month. Whilst the first two items are now in disuse the plaintiff was entitled to an injunction at the time he instituted the suit.
35. It is desirable to record that the company is still entitled to use the position, shown in Ex. 7a, for the illuminated box or a similar sign. The decree in the trial Court will be set aside with regard to items 2, 3 and 7 and will be varied with respect to the amount of damages in item 1. On appeal the plaintiff has substantially succeeded upon his claim in the suit and also in the appeal and upon the memorandum of cross-objections. He will have the costs of the appeal and in the trial Court. Certified for two counsel.
McNair, J.:— I have had the advantage of reading the judgment of Gentle, J., and I agree with the conclusions to which he arrived and the reasons therefor, and I have nothing to add.
R.G
36. Order accordingly.