1. In two of the three cases covered by this finding, the learned City Civil Court Judge has found that it is not proved that there was any express agreement or encouragement given by the plaintiffs to the defendants in question to erect tiled houses, and we see absolutely no reason to differ from this conclusion. In these circumstances we think that our former judgment concludes the case and therefore these appeals must be allowed. We reverse the decrees and give judgment for the plaintiffs as prayed for, with costs throughout.
2. As regards the 3rd case, the City Civil Court Judge has found that there was such an agreement or encouragement. We feel reluctant in the circumstances of the present case to differ from that finding. But we do not think that the evidence upon which the learned Judge has acted is such as can safely be relied upon. It consists of the evidence of the defendant and her husband who are interested, and they are also supported by 2 witnesses who are apparently in the same position as the defendant, as they also own tiled houses on the sites belonging to the plaintiffs. They are therefore distinctly interested.
3. Then there are certain discrepancies to which the learned Advocate-General has called our attention. It is alleged in the particulars put in on behalf of the defendant that the agreement was entered into in 1903 when the house was built. But the evidence of two witnesses goes to show that this agreement took place 2 or 3 years later, whereas one of the witnesses puts it even earlier than 1903. Then there is the fact that in the particulars which were given in connection with this case, the alleged agreement is said to have been made by the 2nd and 3rd plaintiffs in the presence of the 1st plaintiff. The evidence now is that it was made by the 2nd plaintiff in the presence of the 1st plaintiff and that the 3rd plaintiff was not there at all. It is obvious that oral evidence of this kind is exceedingly easy to procure, and on the other hand it is impossible to rebut it effectively. All that the plaintiffs can do is to deny the evidence on the other side. In the circumstances of the case we reluctantly come to the conclusion that this evidence cannot safely be acted upon.
4. We are unable, therefore, to accept the finding of the City Civil Court Judge, and in the result we must give the same decree in this as in the other suits. Six months' time will be allowed for removal of superstructure in all cases.