Madras High Court
Ganesh Chand vs Muthu Sivaraman on 20 July, 2021
Author: S.S. Sundar
Bench: S.S. Sundar
1/40 S.A.No.77 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20.07.2021
CORAM
THE HONOURABLE MR. JUSTICE S.S. SUNDAR
S.A.No.77 of 2017
and
C.M.P.No.1210 of 2017
Ganesh Chand ... Appellant
Vs.
Muthu Sivaraman ... Respondent
PRAYER : Second Appeal filed under Section 100 C.P.C., against the
judgment and decree dated 17.03.2016 in A.S.No.21 of 2012 on the file
of the II Additional Sub-Court, Villupuram, reversing the judgment and
decree dated 09.01.2012 in O.S.No.251 of 2005 on the file of the
Additional District Munsif Court, Villupuram.
For Appellant : Mrs.Hema Sampath,
Senior Counsel,
for M/s.R.Meenal
For Respondent : Mr.N.Suresh
https://www.mhc.tn.gov.in/judis
2/40 S.A.No.77 of 2017
JUDGMENT
The defendant in the suit in O.S.No.251 of 2005 on the file of the Additional District Munsif Court, Villupuram, is the appellant herein. The suit was filed by the respondent/plaintiff to declare the respondent's right to 'B' schedule property as a common enjoyer along with the appellant/defendant and for directing the appellant/defendant to remove the superstructures built over the 'B' schedule property by an order of mandatory injunction. The suit 'A' schedule property is the house and backyard portion of the respondent's house bearing Door No.49/21, Sankara Mutt Street, Villupuram. The suit 'B' schedule property is a small lane, measuring 3 Feet North to South and 83 Feet East to West, at Napalaya Lane. It is also a lane which is on the northern side of the appellant's house and on the East of backyard of the respondent's/plaintiff's house.
2.The case of the plaintiff as per the plaint is that, originally the property of plaintiff as well as that of the defendant belonged to plaintiff's grandmother Tmt.Kokilambal. It is stated that, on 27.06.1996, she executed a sale deed in favour of the appellant's vendor, one https://www.mhc.tn.gov.in/judis A.R.Govindaraja Rao. It is the specific case of the respondent/plaintiff 3/40 S.A.No.77 of 2017 that his grandmother retained suit 'B' schedule property as a common lane, so that they will have an access from Napalaya Lane to her remaining property, i.e., 'A' schedule. The appellant purchased the property from A.R.Govindaraja Rao during February, 2005, and started doing some repair works. Since the appellant wanted to prevent the plaintiff from enjoying the 'B' schedule property, it is stated in the plaint that the defendant raised pillars obstructing the common pathway. Questioning the illegal act, it is stated by the plaintiff that he tried to stop the illegal acts of the defendants. Since he failed in all his attempts, the plaintiff was constrained to file the suit. Though the suit was originally for a declaration, the prayer for mandatory injunction was introduced by way of an amendment on the allegation that the defendant, after filing of the suit, constructed the superstructure on the 'B' schedule common lane, and therefore, the said offending construction should be removed by a decree for mandatory injunction.
3.The suit was contested by the defendant/appellant by denying almost every averment made in the plaint. Though it is admitted that the property originally belonged to Tmt.Kokilambal, the grandmother of the plaintiff, the case of the defendant is that the portion of the property https://www.mhc.tn.gov.in/judis conveyed to defendant's predecessor in title, i.e., the lane, was not 4/40 S.A.No.77 of 2017 earmarked for the enjoyment of Kokilambal. It is also the case of the defendant that the plaintiff was never in possession or enjoyment of the property. The defendant disputed the specific case of plaintiff that Kokilambal had retained the common lane on the northern side of the property that was transferred in favour of the defendant's vendor. Stating that the plaintiff's grandmother had never retained any right in the property conveyed under the sale deed dated 27.06.1996, the defendant contended in his written statement that the plaintiff cannot claim any right over the 'B' schedule property.
4. During the pendency of the suit, at the instance of the plaintiff, an Advocate Commissioner was appointed. He filed a report and plan, which were marked as Exs.C-1 and C-2 before the trial Court. Apart from examining himself as P.W.1, the plaintiff examined two other witnesses, including the Advocate Commissioner. The plaintiff filed a few documents under Exs.A1 to A13. The appellant/defendant examined himself as D.W.1 and marked documents Exs.B1 to B5. After framing necessary issues, the trial Court dismissed the suit, holding that the suit is hopelessly barred by limitation. Stating that the plaintiff did not choose to amend the plaint for declaration in time, and that the reliefs of https://www.mhc.tn.gov.in/judis declaration of title and mandatory injunction were introduced after a 5/40 S.A.No.77 of 2017 lapse of 4 ½ years from the date of the alleged offending construction, the Trial Court held that the suit is barred by limitation. The relief of declaration and mandatory injunction were negatived not only on the ground of limitation, but also on the ground that the plaintiff failed to describe the suit property properly and that the plaintiff did not establish that the suit property was ever used by the plaintiff.
5.Aggrieved by the findings of the trial Court, the respondent/plaintiff preferred an appeal before the II Additional Sub- Court, Villupuram, in A.S.No.21 of 2012. The lower Appellate Court reversed the findings of the trial Court and decreed the suit as prayed for.
6.Aggrieved by the judgment of the lower Appellate Court, reversing the judgment and decree of the trial Court, the defendant/appellant has preferred the above appeal.
7.The appellant/defendant has raised the following substantial questions of law in the above appeal:
“1.Whether in law the lower Appellate Court was right in overlooking that the suit for declaration and mandatory injunction was barred under Article 113 of the Limitation Act?
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2.Whether in law the lower Appellate Court was right in granting a decree for mandatory injunction when the plaint had not specified the alleged construction and when the construction does not obstruct passage to the street?
3.Whether in law the lower Appellate Court came to a perverse conclusion on misreading the facts and the evidence thus warranting interference under Section 100 C.P.C.?”
8.The learned Senior Counsel appearing for the appellant/defendant submitted that the suit relief is barred under Article 113 of the Limitation Act. The learned Senior Counsel also submitted that the suit for mandatory injunction ought to have been filed within three years, and that in this case, the plaintiff filed an amendment petition only after the period of limitation. The learned Senior Counsel further submitted that the plaintiff has not specifically alleged the nature of obstructions caused by the construction put up by the defendant. It is contended by the learned Senior Counsel that the plaintiff's claim is only to use the property as a common pathway, and that the plaintiff cannot get any such relief without establishing before Court that his right of way is affected by the offending construction. The learned Senior Counsel https://www.mhc.tn.gov.in/judis 7/40 S.A.No.77 of 2017 also produced before this Court the photographs to show the nature of construction put up by the defendant in the suit property.
9.The learned counsel appearing for the respondent/plaintiff submitted that the document Ex.A2 clearly shows that the plaintiff is entitled to the right of easement by grant and that the lower Appellate Court has rightly granted the decree after considering the oral and documentary evidence. The learned counsel for the respondent/plaintiff submitted that in view of Section 22 of the Limitation Act, the suit cannot be dismissed on the ground of limitation especially when the plaintiff in this case has alleged the interference with the exercise of his right of easement. The main issue raised by the learned counsel for the appellant is about the legality of the conclusion of the Lower Appellate Court that the suit is not barred by limitation.
10.The Lower Appellate Court after going through the Commissioner's Report and Plan, confirmed the existence of a small lane described as suit 'B' Schedule property. Under Ex.A2, the plaintiff's predecessor in interest has retained the right to have access through 'B' Schedule property and hence, the right of easement reserved for the https://www.mhc.tn.gov.in/judis plaintiff under Ex.A2 is established. Learned Senior counsel has 8/40 S.A.No.77 of 2017 practically conceded the position as borne out from Ex.A2. However, she submitted that the plaintiff never enjoyed the right and there is no averment in the plaint about the enjoyment of right by plaintiff. It is further stated that there was no common lane and hence, the defendant put up construction immediately after he purchased the property on 31.01.2005. Since the plaint was amended only on a petition dated 03.06.2010, it is submitted that the suit relief is hopelessly barred by limitation. Referring to the dates and events, the learned Senior counsel submitted that the petition to amend the plaint for declaration and for mandatory injunction was filed on 03.06.2010 and that the said application was allowed on 06.08.2010. In the revision petition filed by the appellant, challenging the order allowing the amendment petition, the appellant was given liberty to file additional written statement. Since the appellant raised the plea of limitation in the additional written statement, it is submitted by the learned Senior counsel that the Trial Court rightly held that the suit is barred by Article 113 of the Limitation Act. It is also submitted that the plaintiff has an alternative way and hence it is not a case where the suit property is absolutely necessary for enjoying the plaintiff's 'A' Schedule property.
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11. Learned counsel appearing for the respondent, on the other hand, submitted that the relief being in relation to right of easement alleging interference by the appellant, Section 22 of the Limitation Act would apply and that the cause of action is continuous. The learned counsel also highlighted the various documents and the recitals of a few documents, particularly, document Ex.A-2, dated 27.06.1966, where there is a specific reference to the right reserved by the vendor to use a small lane along with the transferee.
12. The legal position is not in dispute that the period of limitation will commence only from the date of amending petition. The question is whether Section 22 of the Limitation Act would apply to this case. The suit is filed originally for permanent injunction. The suit was filed on 12.07.2005. However, the petition for amendment was filed only in June,2010. If the limitation starts running from the date of offending construction and Article 113 should be applied, the suit is barred by limitation. If the defendant has no right of exclusive possession, it is a continuous wrong and there is no question of limitation in view of Section 22 of the Limitation Act. For the completion of facts, it is to be https://www.mhc.tn.gov.in/judis noted that the appellant purchased the property under Ex.B-4, dated 10/40 S.A.No.77 of 2017 31.01.2005. However, right to have access through B-Schedule lane was claimed under Ex.A-2, dated 27.06.1966. It is not in dispute that the entire property originally belonged to the plaintiff's grandmother by name Kokilambal. Tmt.Kokilambal executed a sale deed in favour of the vendor of the appellant under Ex.A-2, dated 27.06.1966. It was under
Ex.A-2, Kokilambal reserved her right to use the common lane along with the purchaser. This is admitted even by the respondent in the course of his pleadings. Learned Senior Counsel for the appellant does not dispute the recitals and the construction of the document, recognising the right of easement by grant. If that is so, neither the plaintiff nor the defendant has a right to be in possession excluding the other.
13. Section 22 of the Limitation Act reads as follows :
''22. Continuing breaches and torts. — In the case of a continuing breach of contract or in the case of a continuing tort, a fresh period of limitation begins to run at every moment of the time during which the breach or the tort, as the case may be, continues.'' Once the right of easement is accepted, the respondent/plaintiff is entitled to gain the benefit of Section 22 of the Limitation Act. https://www.mhc.tn.gov.in/judis 11/40 S.A.No.77 of 2017
14. Several decisions of Hon'ble Supreme Court and this Court were relied upon by both sides. In order to appreciate the legal submissions of the respective counsel, this Court deems it fit to refer a few judgments cited before this Court, which are relevant and helpful to decide this Second Appeal.
15. In the case of Kuchibotla Kanakamma v. Tadepalli Ranga Rao, AIR 1957 AP 419, Viswanatha Sastri, J., as He then was, held as under :
''13. The plaintiffs here claim only an easement of a right of way over the land A B C D by a grant from the original owner and neither the ownership of the site nor the right to possession thereof rests in them. The right to possession of the site is vested either in the original owner or the municipal council. The obstruction caused by the Defendants by the erection of a motor garage on A B N M is not a dispossession or ouster of the plaintiffs, for they themselves had no right to the possession of the land A B C D or any part of it but only a right of way thereon. The obstruction to the Plaintiffs' right of way is therefore not a dispossession or ouster but a continuing wrong which attracts Section 23 of the Limitation Act." (Now, Section 22 of the Limitation Act,1963).
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16. Relying upon the above judgment of the Andhra Pradesh High Court by Viswana Sastri,J., V.Rathnam, J., as He then was, in the case of Bharathamatha Desiya Sangam Madhavaram & Another v. Roja Sundaram & Others, reported in 1987 (1) MLJ 409, has held as follows :
''9. That leaves for consideration the plea of limitation. Learned counsel for the appellants, drawing attention to para 8 of the plaint, contended that the offending structures were put up five or six years prior to the filing of the suit on 6-10-1967 and that the suit should have been instituted within three years, when the right to sue accrued as per Art. 113 of the Limitation Act, 1963 and not having been so filed, it was barred. On the other hand, learned counsel for the first respondent referred to Ss. 3(1) and 22 of the Limitation Act, 1963, and contended that the invasion of the right of the first respondent to have access was from day to day and continues and , therefore, it fresh period of limitation began to run at every moment of time when the invasion of the right continued. Reliance was also placed in this connection upon the decision in K. Kimakarnma v. T. Ranga Rao, AIR 1957 Andh Pra 419.
10. No doubt, it is seen from para8 of the plaint that it has been stated that the offending constructions have been put up five or six years ago. It is, however, significant to note that the cause of action for the https://www.mhc.tn.gov.in/judis institution of the suit also included the persisted squatting 13/40 S.A.No.77 of 2017 upon the portions trespassed. This would mean that though the constructions had been put up earlier, the interference with the exercise of the right of access by the first respondent continued from day to day up to the date of the filing of the suit. In such a situation, S. 22 of the Limitation Act, 1963 provides that every moment of the continuance of the wrong would afford a fresh cause of action. The wrongful act is the obstruction and it may he that the construction resulting in the wrongful act had come into existence long before. But by the construction, the exercise of the right of access by a person entitled to have such access is interfered with every time he wants to exercise that right by the offending constructions. In a situation similar to the one in this particular case, in K. Kanakamma v. T. Ranga Rao, AIR 1957 Andh Pra 419, Viswanatha Sastri, J. pointed out that if the obstruction to a right of way is caused by the erection of a permanent wall or structure once for all, it does not make it any the less a continuing wrong within the meaning of S. 23 of the Limitation Act, 1908 (corresponding to S. 22 of the Limitation Act, 1963) and that a defendant, who, by his wrongful act, has brought a state of affairs into existence, the continuance of which every moment is a new tort and who, though in a position to terminate it at his will, causes the state of affairs to continue, commits it continuing wrong within the meaning of S. 23 of the Limitation Act, https://www.mhc.tn.gov.in/judis 1908. On the facts of this case, the principle referred to 14/40 S.A.No.77 of 2017 above would be applicable and there is, therefore, no substance in the plea of limitation put f6rth by the appellants. Consequently, no case for interference with the judgment and decree of the lower appellate Court is made out. The second appeal is, therefore, dismissed.
There will be, however, no order as to costs. The appellants are given two months' time from this day to remove the offending constructions.''
17. The above two judgments were also relied upon by a learned Judge of this Court (R.Subramanian,J.) in the case of Sundari v. Gandhi and Another, 2019 (6) CTC 511, and it was held therein that there is no substance in the plea of limitation put forth by the defendant in a case where the defendant by his wrongful act has brought a state of affairs into existence, the continuance of which every moment is a new tort and hence a fresh period of limitation began to run at every moment of time when the invasion of the right continued.
18. In the case of Sankar Dastidar v. Shrimati Banjula Dastidar and Another, 2007 (2) CTC 570, the Hon'ble Supreme Court had an occasion to consider the scope of Section 22 of the Limitation Act. In the said case, though a distinction was made that a suit for damages stands on a different footing than a suit for invasion of easementary right https://www.mhc.tn.gov.in/judis by a tort-feasor, it is held therein as follows : 15/40 S.A.No.77 of 2017
''8. A suit for damages, in our opinion, stands on a different footing vis-a-vis a continuous wrong in respect of enjoyment of one's right in a property. When a right of way is claimed whether public or private over a certain land over which the tort-feasor has no right of possession, the breaches would be continuing one. It is, however, indisputable that unless the wrong is a continuing one, period of limitation does not stop running. Once the period begins to run, it does not stop except where the provisions of Section 22 would apply.''
19. The above judgment of the Hon'ble Supreme Court in Sankar Dastidar's case was followed in several judgments of the Hon'ble Supreme Court.
20. In Udai Shankar Awasthi v. State of Uttar Pradesh and Another, 2013 (2) SCC 435, the Hon'ble Supreme Court has held that the law on the issue is summarised to the effect that in the case of a continuing offence, the ingredients of the offence continue i.e., endure even after the period of consummation, whereas, in an instantaneous offence, offence takes place once and for all i.e., when the same actually takes place. In such cases, there is no continuing offence, even though the damage resulting from the injury may itself continue. https://www.mhc.tn.gov.in/judis 16/40 S.A.No.77 of 2017
21. The Hon'ble Supreme Court, in the case of Hari Ram v. Joti Prasad and Another, reported in 2011 (2) SCC 682, following the judgment of the Supreme Court in Sankar Dastidar's case, cited above, has held as follows :
''16. Any act of encroachment is a wrong committed by the doer. Such an encroachment when made to a public property like encroachment to public road would be a graver wrong, as such wrong prejudicially affects a number of people and therefore is a public wrong. So long any obstruction or obstacle is created to free and unhindered access and movement in the road, the wrongful act continues thereby preventing the persons to use the public road freely and unhindered. Therefore, that being a continuing source of wrong and injury, cause of action is created as long as such injury continues and as long as the doer is responsible for causing such injury.''
17. At this stage, it would be apposite to refer to and rely upon Section 22 of the Limitation Act, 1963, which reads as follows:
"22. Continuing breaches and torts.- In the case of a continuing breach of contract or in the case of a continuing tort, a fresh period of limitation begins to run at every moment of the time during which the breach https://www.mhc.tn.gov.in/judis or tort, as the case may be, continues."
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18. This court had the occasion to deal with Section 22 of the Limitation Act, 1963, in the case of Sankar Dastidar v. Shrimati Banjula Dastidar and Anr. reported in AIR 2007 SC 514, in which the Supreme Court held that when a right of way is claimed whether public or private over a certain land over which the tort- feaser has no right of possession, the breaches would be continuing, to which the provisions of Section 22 of the Limitation Act, 1963, would apply. Therefore, in our considered opinion, the plea that the suit is barred by limitation has no merit at all.''
22. Learned counsel for the respondent relied upon yet another judgment of the Hon'ble Supreme Court in the case of Hero Vinoth (Minor) v. Seshammal, 2006 (4) CTC 79, wherein it is held as follows :
''28. The question whether an easement is one acquired by grant (as contrasted from an easement of necessity) does not depend upon absolute necessity of it. It is the nature of the acquisition that is relevant. Many easements acquired by grant may be absolutely necessary for the enjoyment of the dominant tenement in the sense that it cannot be enjoyed at all without it. That may be the reason for the grant also. But easement of grant is a matter of contract between the parties. In the matter of grant the parties are governed by the terms of the grant and not anything else. Easement of necessity and quasi https://www.mhc.tn.gov.in/judis 18/40 S.A.No.77 of 2017 easement are dealt with in Section 13 of the Act. The grant may be express or even by necessary implication. In either case it will not amount to an easement of necessity under Section 13 of the Act even though it may also be an absolute necessity for the person in whose favour the grant is made. Limit of the easement acquired by grant is controlled only by the terms of the contract. If the terms of the grant restrict its user subject to any condition the parties will be governed by those conditions. Any how the scope of the grant could be determined by the terms of the grant between the parties alone. When there is nothing in the term of the grant in this case that it was to continue only until such time as the necessity was absolute. In fact even at the time it was granted, it was not one of necessity. If it is a permanent arrangement uncontrolled by any condition, that permanency in user must be recognized and the servient tenement will be recognized and the servient tenement will be permanently burdened with that disability. Such a right does not arise under the legal implication of Section 13 nor is it extinguished by the statutory provision under Section 41 of the Act which is applicable only to easement of necessity arising under Section
29. An easement by grant does not get extinguished under Section 41 of the Act which relates to an easement of necessity. An easement of necessity is one which is not merely necessary for the reasonable https://www.mhc.tn.gov.in/judis 19/40 S.A.No.77 of 2017 enjoyment of the dominant tenement, but one where dominant tenement cannot be used at all without the easement. The burden of the servient owner in such a case is not on the basis of any concession or grant made by him for consideration or otherwise, but it is by way of a legal obligation enabling the dominant owner to use his land. It is limited to the barest necessity however inconvenient it is irrespective of the question whether a better access could be given by the servient owner or not. When an alternate access becomes available, the legal necessity of burdening the servient owner ceases and the easement of necessity by implication of law is legally withdrawn or extinguished as statutorily recognized in Section 41. Such an easement will last only as long as the absolute necessity exists. Such a legal extinction cannot apply to an acquisition by grant and Section 41 is not applicable in such case.
30. Above being the position, the High Court was right in holding that the parties clearly provided for a right of access to the backyard of the defendant's house when the Partition deed was executed and shares were allotted to various sharers taking into account various factors and it is a matter of contractual arrangement between them. In such a contract if a right of way is provided to a particular sharer, it cannot be extinguished merely because such sharer has other alternative way. The High Court's reasoning and conclusions do not suffer from any infirmity to warrant interference.'' https://www.mhc.tn.gov.in/judis 20/40 S.A.No.77 of 2017
23. Since the learned counsel appearing for the appellant also submitted during the course of arguments that there is an alternative pathway available to the plaintiff to enjoy his property, learned counsel appearing for the respondent submitted that the availability of alternative pathway or access will not put an end to the easement by grant. Apart from the judgment referred to in the previous paragraph, he relied upon another judgment of the Hon'ble Supreme Court in the case of Dr.S.Kumar and Others v. V.Ramalingam, 2020 (16) SCC 553, wherein it is held that a person, who has been granted right to use passage as per the sale deed, need not plead easement of necessity and that the right granted under the sale deed will not extinguish in terms of Section 41 of Easements Act,1882. A similar view was taken by the Hon'ble Supreme Court in the case of Sree Swayam Prakash Ashramam and Another v. G.Anandavally Amma and Others, 2010 (1) CTC 455.
24. In a case where the plaintiff was in enjoyment of the property to have ingress and egress to the defendant's property under the settlement deed, when the defendant questioned the right in 1982 on the ground that the right of easement was extinguished on account of the https://www.mhc.tn.gov.in/judis alternative pathway, the Hon'ble Supreme Court held that the implied 21/40 S.A.No.77 of 2017 grant to have access through another person's property is sufficient and that the right to easement by grant will not vanish merely because there is an alternative pathway available to the plaintiff.
25. Learned Senior Counsel appearing for the appellant relied upon a Full Bench judgment of Lahore High Court in the case of Khair Mohammed Khan and Another v. Mst.Jannat and Others, reported in AIR 1940 Lah 359 (FB), where, the test for determining whether the encroachment in a continuing wrong is considered. An encroachment was made by a joint owner by building a chabutra on land reserved for common purposes, claiming it as his own. Question was raised whether it was an act of complete dispossession and ouster giving rise to the cause of action, once for all, at the time when the dispossession took place in assertion of a hostile title. It was held that the act, complained of, amounted to a complete-ouster of the plaintiffs and, therefore, Section 23 of the Limitation Act, 1908, corresponding to Section 22 of the Limitation Act,1963, did not apply and the plaintiffs' suit for injunction was governed by Article 120 of Schedule 1 to the old Indian Limitation Act, as the cause of action having accrued to them at the time of the ouster. It was further held that in each case whether the injury which is https://www.mhc.tn.gov.in/judis the basis of the grievance of the aggrieved party is itself continuing, or 22/40 S.A.No.77 of 2017 the injury was complete when it was committed but the damage flowing from it has continued or is continuing and that the case falls within the purview of Section 23 of the Indian Limitation Act (old Act) in the former case and the cause of action arises in the latter case when the wrongful act was done. For convenience, the relevant portion of the said judgment is extracted below :
''In considering whether the particular Act complained of constitutes a "continuing wrong" within the meaning of Section 23 for which the cause of action arises de die in diem it is necessary to keep in mind the distinction between an "injury" and the "effects of that injury." Where the injury complained of is complete on a certain date, there is no "continuing wrong" even though the damage caused by that injury might continue. In such a case the cause of action to the person injured arises, once and for all, at the time when the injury is inflicted, and the fact that the effects of the injury are felt by the aggrieved person on subsequent occasions, intermittently or even continuously, does not make the injury a "continuing wrong" so as to give him a fresh cause of action on each such occasion. If however the act is such that the injury itself is continuous then there is a "continuing wrong" and the case is governed by Section 23. As observed by Mookerjee J., in Brojendra https://www.mhc.tn.gov.in/judis Kishore Roy v. Bharat Chandra Roy AIR (1916) Cal 751, 23/40 S.A.No.77 of 2017 the essence of a continuing wrong is that ''the act complained of creates a continuing source of injury and is of such a nature as to render the doer of it responsible for the continuance; in such cases a fresh cause of action arises de die in diem. To put the matter in another way, where the wrongful act produces a state of affairs every moment's continuance of which is a new tort, a fresh cause of action for the continuance lies. The question in each case therefore is whether the "injury," which is the basis of the grievance of the aggrieved party is itself "continuing," or whether the injury was complete when it was committed but the damage flowing from it has continued or is continuing. If the former, the case falls within the purview of Section 23, Limitation Act, and the cause of action arises de die in diem; if the latter, the terminus a quo is the date on which the wrongful act was done. For an instance of a "continuing wrong,"
reference may be made to Raj Rup Koer v. Abul Hossein (1881) 6 Cal 394 where some 40 or 50 years before the suit the plaintiff's ancestors, after making compensation to the defendants, had constructed a pain or artificial watercourse on the defendants' land to take water from a natural stream to the plaintiff's land. Some years before the suit the defendants, without authority, had obstructed the flow of water along the pain by making dams and cuts in the channel and thus drew off continuously, from https://www.mhc.tn.gov.in/judis day to day, water from the plaintiff's channels and 24/40 S.A.No.77 of 2017 diverted it to their own fields. In a suit by the plaintiff for a declaration of his sole right to the pain and an injunction directing the defendants to close the openings and restraining them from draining off the water in future, it was held by their Lordships of the Privy Council that the dams, outs and other modes of obstructing or diverting the water from the watercourse were in the nature of a "continuing nuisance" as to which the cause of action was renewed de die in diem so long as the obstructions causing such interference were allowed to continue and the suit was held to fall within Section 24, Limitation Act 9 of 1871 (which corresponded to Section 23 of the present Act 9 of 1908).
Other instances of "continuing wrongs" are continued pollution of a stream, Hole v. Chord Union (1894) 1 Ch 293; obstruction caused to immemorial egress of rain water from the plaintiff's house through a drain on the defendant's land, Punja Kuvarji v. Rai Kuvar (1881) 6 Bom 20; obstruction of discharge of surface water, Kaseswar Mukerjee v. Annoda Prosad AIR (1918) Cal 422, obstruction of light and air through ancient windows, Shadwell v. Hutohinson (1831) 2 B & Ad 97, Ponnu Nadar v. Kumaru Reddiar AIR (1935) Mad 967 and Moti Ram v. Hans Raj AIR (1936) Lah. 334. In all such cases the "injury" is continuous and therefore limitation runs every moment of the time, during which https://www.mhc.tn.gov.in/judis the injury continues.
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The present case however stands on an entirely different footing. Here, so far as the portion of the platform which was constructed in 1925 is concerned, the injury was completed at the time of the construction. The act of the defendants by constructing the chabutra on the common land and thus appropriating it to their exclusive use, amounted to a complete dispossession and ouster of the plaintiffs and the other mohalladars. It was not a "continuing" wrong, but a wrong which was completed at the time the construction was put up; it was not an "injury" which, to use the classical words of Blackstone "had been committed by continuation from one given day to another" (Book III, Ch. 12, p. 211), The cause of action to the aggrieved mohalladars arose once and for all at the date of the ouster. It does not arise afresh every day that the structure exists and to such a case the provisions of Section 23 do not apply. There is a large number of cases decided by the Chief Court and this Court in which this view has been taken, and with which I am in respectful agreement.
In Achar Singh v. Badhawa Singh (1912) 124 PR 1912 the plaintiff, acting on behalf of the village proprietary body, sued for the removal of a structure which had been constructed by the defendant in a specific field in the shamilat which had been reserved as https://www.mhc.tn.gov.in/judis a thoroughfare. It was held that the act complained of 26/40 S.A.No.77 of 2017 was not a continuing wrong and Section 23 did not apply. The case was held governed by Article 120.
In Ganda Singh v. Nathu Ram (1912) 151 1912 LR 1912, the suit had been instituted for a perpetual injunction directing the defendants to restore to its original condition certain land, which had been originally reserved for the common use of the proprietors but which had been encroached upon by the defendants. It was held that the case was governed by Article 120 and as the structures complained of had been constructed more than six years before the institution of the suit, the claim was barred by time.
In Lal Singh v. Hira Singh AIR (1921) Lah 242 the plaintiffs, claiming to be joint owners of a certain courtyard, had sued for the issue of a mandatory injunction to the defendants to remove certain chappers which they had constructed, and to restore the courtyard to its former condition. It was found that the chappers were constructed more than six years before the suit, which was dismissed as barred under Article 120. It was further held that Section 23 had no application, as the moment the chappers were erected the injury complained of, and sought to be removed by the issue of an injunction, was complete. There was no "continuing" injury within the meaning of the statute, even though the effect of the injury continued.
https://www.mhc.tn.gov.in/judis 27/40 S.A.No.77 of 2017 In Chandu v. Gajju, a suit for a perpetual injunction for the removal of an encroachment made on common land was held barred under Article 120, as the suit had been instituted more than six years after the encroachment.
Other instances of similar cases will be found in Wadhawa v. Allah Ditta AIR (1932) Lah 220 and Jai Narain v. Municipal Committee, Delhi (1935) 37 160 LR
160. Reference may also be made to the decision of the Calcutta High Court in Ashutosh Sadukhan v.
Corporation of Calcutta AIR (1919) Cal 807, where a rowak had been constructed on common land and it was held that the injury was completed on the erection of the rowak and there was no continuing wrong within the meaning of Section 23. Similarly, in Municipal Commissioners for the City of Madras v. Sarangapani Mudaliar (1896) 19 Mad 154 a suit by a Municipality to recover, as forming part of a highway, a strip of land adjoining the house of the defendant on which a pial had been erected more than forty-five years before the suit, was dismissed on the ground that there was no evidence that the strip in question had been used by the public as a part of the street for many years. In all these cases the obstruction was of a permanent nature and the injury had been completed when the structure complained of was built and it was held that Section 23 had no https://www.mhc.tn.gov.in/judis application.
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There are some cases decided in Calcutta which contain observations supporting the opposite view (Sreemati Soojan Bibi v. Shamed Ali (1892) 1 CWN 96, Nerode Kanta v. Bharat Chandra (1909) 2 IC 410, Nazimulla v. Wazidulla AIR (1916) Cal 733, Dwarka Nath v. Rash Behari Guha AIR (1923) Cal 365 and Sarat Chandra v. Nirode Chandra MANU/WB/0022/1935 :
AIR1935Cal405 ). All these decisions purport to be based on Raj Rup Koer v. Abul Hossein (1881) 6 Cal 394 above referred to and in some of them it has been broadly stated that there is no distinction between an obstruction to a water-course and one to a way, and wrongful interference with a right of way constitutes a continuing nuisance (Nazimulla v. Wazidulla AIR (1916) Cal 733). With great deference, it must be said that this proposition is too widely expressed and cannot be accepted as correct in all cases, regardless of the nature and extent of the encroachment or obstruction. There is, for instance, no analogy between the case decided by the Privy Council and a case in which a right of way has been obstructed by the construction of a wall or a building of a more or less permanent character, which has completely blocked the way of the plaintiff. As has been stated above, in Raj Rup Koer v. Abul Hossein (1881) 6 Cal 394 the defendants by making dams and https://www.mhc.tn.gov.in/judis cuts in the water channel, which had been constructed by 29/40 S.A.No.77 of 2017 the plaintiff on the defendants' land, were diverting, continuously and day by day the water from the water channel to their own lands. They were thus committing a fresh wrong every time that the water was so diverted. In Nazimulla v. Wazidulla AIR (1916) Cal 733, reference was made to two English cases. But the facts of those cases were materially different. Indeed, one of them, Thorpe v. Brumfitt (1873) 8 Ch A 650, brings out prominently the distinction between obstructions which are permanent and those which are not. There, the way to the yard of the owner of an inn was obstructed by the loading and unloading of heavy waggons, of the defendant who owned the adjoining property. The obstruction was not permanent; it was caused whenever the waggons were loaded and unloaded and each such obstruction gave a fresh cause of action to the plaintiff. In the other English case referred to, Lane v. Chapsey (1891) 3 Ch D 411 a mandatory injunction to remove the obstruction to a right of way had been refused, the defendant had then become insolvent, and the plaintiff applied to the Insolvency Court for leave to take proceedings for the abatement of the nuisance. Chitty J.
granted leave to take such proceedings for this purpose but took care to say (page 416) that "he was not deciding the point in favour of the applicant." It may be noted that no question of limitation appears to have arisen or https://www.mhc.tn.gov.in/judis decided in that case.
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Some cases decided by the Patna High Court were cited before us. But the course of decisions in that Court does not appear to be uniform. In Bhagwan Dutt v. Asharfi Lal AIR (1934) Pat 34 the Calcutta cases, mentioned above, were followed and it was held that a suit for declaration that certain pathways were lands on which the plaintiff and the public had a right is governed by Section 23, Limitation Act, and the wrong being a continuing wrong, no question of limitation arose. This case was disapproved in Bibhuti Narayan v. Mahadeo Asram Prasad AIR (1940) Pat 449, where the Calcutta cases were criticized at length, and it was laid down that where the wrong amounts to dispossession of the plaintiff, then although it may be a continuing wrong, the plaintiff cannot recover possession after twelve years, because under Section 28, Limitation Act, he himself has got no right left. With great deference to the learned Judges who decided that case, while agreeing with their criticizm of the Calcutta decisions, I find myself unable to accept their ultimate conclusion. If the wrong is really a "continuing wrong" it is difficult to see how the plaintiff's right will be lost by lapse of 12 years from the date when it was first committed. Ex hypothesi, the cause of action to the plaintiff arises de die in diem, so long as the obstruction exists, and if this be so, Section 28 will https://www.mhc.tn.gov.in/judis not apply so as to extinguish his title.
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The learned Counsel for the appellant also referred to the recent decision of their Lordships of the Privy Council in Hukam Chand v. Maharaj Bahadur Singh MANU/PR/0031/1933 and to a case decided by the Chief Court reported in Muhammad Ahmad v.
Muhammad Fazal AIR (1917) Lah 160. But both these cases are clearly distinguishable. In the former case, certain structural alterations had been made by the defendants in the character of the charans (footprints) of Jain Saints in certain shrines on the sacred hill of Parashnath in Bihar; and in the latter, a balakhana had been constructed on a mosque and was used for his residence by the defendant. These acts of sacrilege, resulting in interference with the plaintiffs' right of worship, were held to be "continuing wrongs" which afforded them a recurring cause of action to have the offending obstructions removed. The principle of these cases, therefore, does not apply to this case, which stands on an entirely different footing.
After careful consideration, I see no reason to doubt the correctness of the view taken in this Court in the cases cited above, that where the act complained of amounts to complete ouster of the plaintiff, the injury is complete at the date of the ouster. To such cases Section 23 does not apply, and the plaintiff has six years from the date of obstruction to sue for declaration or https://www.mhc.tn.gov.in/judis injunction and 12 years for possession.
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I would accordingly hold that the learned District Judge came to a correct conclusion in holding that this case is governed by Article 120 and that the plaintiffs' claim relating to that portion of the platform which had been constructed in 1925 was time barred.''
26. The test applied by the Full Bench of Lahore High Court is whether the ''injury'', which is the basis of the grievance of the aggrieved party, is itself ''continuing'' or whether the injury was complete when it was committed but the damage flowing from it is continuing. The Full Bench of Lahore High Court could not approve the view expressed by other High Courts or the Privy Council. The Full Bench judgment of Lahore High Court was also considered by Sri Viswanatha Sastri, J., in the judgment earlier referred to in AIR 1957 AP 419 in paras 9, 10 and 11 of the judgment, which are also extracted below for better appreciation :
''9. These observations of learned Judge do not amount to a decision and merely suggest possible lines of argument. The mere fact that obstruction to the enjoyment of an easement of way or of light and air is caused by a wall or other permanent structure does not mean that the wrong is not a continuing one. It makes no difference to the Plaintiff whether the Defendant puts up https://www.mhc.tn.gov.in/judis a temporary obstruction de die in diem or whether he 33/40 S.A.No.77 of 2017 puts it up once for all. In either case, the wrong is a continuing one.
In my opinion, there is no justification for holding that if the Defendant puts up a fence or a screen every day so as to obstruct the Plaintiffs fight of way or right to access of light and air, it-is a continuing wrong within the meaning of Section 23 of the Limitation Act, but it ceases to be such if a permanent obstruction in the shape of a wall is erected by him. The Appellants' learned advocate placed strong reliance on the judgment of the Full Bench of the Lahore High Court in ILR (1941) Lah 22 : AIR 1940 Lah 359 (D), holding that the question whether an obstruction to a right of way amounted to a continuing wrong or not depended upon whether the obstruction was of a permanent nature or not.
Tek Chand, J., who delivered the leading judgment in the case referred to the decision of the Calcutta High Court dealing with the applicability of Section 23 of the Limitation Act to a wrongful obstruction to a right of way and observed:
All these decisions purport to be based on ILR 6 Cal 394: LR 7 1A 240 (PC) (H), above referred to and in some of them it has been broadly stated that there is no distinction between an obstruction to a water course and one to a way, and wrongful interference with a right of way constitutes a continuous nuisance 21 Cal LJ 640 https://www.mhc.tn.gov.in/judis :AIR 1916 Cal 733 (2) (O).34/40 S.A.No.77 of 2017
With great deference it must be said that this proposition is too widely expressed and cannot be accepted as correct in all cases, regardless of the nature and extent of the encroachment or obstruction. There is, for instance, no analogy between the case decided by the Privy Council and a case in which a right of way has been obstructed by the construction of a wall or a building of a more or less permanent character which has completely blocked the way of the Plaintiff.
10. There is nothing in Section 23 of the Limitation Act, to warrant a distinction between a permanent obstruction and an impermanent one. both of which are ex hypothesi wrongful. So long as a wall, building or other obstacle to the Plaintiffs enjoyment of an easement of way stands, the wrong continues and Section 23 of the Limitation Act gives rise continuously to fresh periods of limitation. This is not to say that there is a perpetual right of suit, a point which will be considered later. All that I wish to point out, is that the fact that the obstruction to a right of way or to a right to access of light or air is caused by the erection of a permanent wall, or structure one for all, does not make it any the less a continuing wrong within the meaning of Section 23 of the Limitation Act.
The Defendant who by his wrongful act has brought a state of affairs the continuance of which every https://www.mhc.tn.gov.in/judis moment is a new tort and who, though, in a position to 35/40 S.A.No.77 of 2017 terminate it at his will, causes the state of affairs to continue, commits a continuing wrong within the meaning of section 23 of the Limitation Act. The continuance of a state of affairs originally brought about by the defence might well be continuing wrong.
Explaining the words "continuance of injury or, damage"
Buckley, J., observed:
The words do not mean or refer to damage ' Inflicted once and for all which continues unrepaired but to a 'new damage recurring day "by day in respect of an act done. It may be once and for all at some prior time' (italics are mine here in or repeated, it may bo, from day to day." 1- Harrington v. Corporation of Derby, LR (1905) 1 Ch. 205 (P,).
11. In Clerk and Lindsell on Torts, 11th Edition, page 240 the law is thus stated:
If the act complained of creates a continuing source of injury and is of such nature as to render the doer of it responsible for the continuance thereof in cases in which damage is not of the essence of the action, as in trespass, a fresh cause of action arises de die in diem.''
27. Therefore, when the plaintiff claims an easement of a right of way, neither the ownership of the site nor the right to possession thereof rests in him and the obstruction caused by the defendant by erection of a structure is not an act of dispossession or ouster of plaintiff, https://www.mhc.tn.gov.in/judis 36/40 S.A.No.77 of 2017 for he himself had no right to possession. The test applied by other High Courts and Hon'ble Supreme Court was different and hence I am unable to follow the view expressed by the Full Bench of Lahore High Court.
28. The second question of law framed is, ''whether the lower appellate Court was right in granting a decree for mandatory injunction when the plaint had not specified the alleged construction and when the construction does not obstruct passage to the street ?''. The appellant has raised a specific ground that he has not blocked the disputed portion. The ground raised and the Commissioner's Report and Plan suggest that the offending construction is by extending the roof of defendant's building to cover the disputed passage without blocking the passage. Therefore, ''injury'' complained is not by putting up a permanent obstruction in the passage but to restrict the enjoyment by putting up concrete pillars on the one side and by extending the roof above the Suit 'B' Schedule. Hence, the judgment of Lahore High Court, even if is accepted, cannot help the appellant.
29. Learned Senior Counsel then submitted that the plaintiff did not plead enjoyment of the lane. Relying upon para 13 of the judgment of High Court of Andhra Pradesh in AIR 1957 AP 419, it is https://www.mhc.tn.gov.in/judis contended that the plaintiff has no perpetual right of suit, as it was 37/40 S.A.No.77 of 2017 observed in the said judgment. It was observed in the same judgment that under Section 47 of the Easements Act, a discontinuous easement like a right of way is extinguished only when for an unbroken period of 20 years, it has not been enjoyed. In this case, the defendant has not pleaded extinguishment of right of easement. The defendant has purchased the property only in the year 2005. Entire pleading and evidence would lead to the conclusion that the plaintiff was allowed to use the passage and that the offending construction was not to totally obstruct the passage.
Learned Senior Counsel circulated another judgment of Delhi High Court in the case of Faquir Chand v. Lila Ram, reported in AIR 1994 Del (6), wherein, the judgment of Lahore High Court by Full Bench was quoted with approval. It is to be noted that the obstruction by defendant therein was by putting up a tin shed at the end of common passage. It was contended by the defendant that construction of tin shed was not by obstructing the passage. It was held that the facts are in pari materia with the facts in the Full Bench judgment of Lahore High Court inKhair Mohammad Khan v. Mst.Jannat, AIR 1940 Lahore 359. Further, it was observed that the Hon'ble Supreme Court, in Balkrishna Savalram Pujari Waghmare and Others v. Shree Dnyaneshwar Maharaj Sansthan, reported in AIR 1959 SC 798, has cited the judgment of Full Bench of Lahore https://www.mhc.tn.gov.in/judis High Court with approval. This Court is not inclined to express any view 38/40 S.A.No.77 of 2017 on this judgment, as the test applied by other High Courts and followed by Hon'ble Supreme Court, is not considered. Further, this Court has already held that the judgment of Lahore High Court cannot be applied in the present case.
30. Learned Senior Counsel relied upon a judgment of this Court in R.Kumar v. G.Jaganmoorthy, reported in 2017 SCC Online Mad 33015, wherein the judgment of Delhi High Court in AIR 1994 Del 161 was quoted out of context. The facts of the case dealt with by the learned Judge were entirely different and it is not a case relating to an obstruction or interference with the right of easement. Hence, this judgment does not help the appellant.
31. In the background of the admitted facts, this Court is unable to find any merit in the submission of the learned Senior Counsel for the appellant, stating that the suit itself is barred by limitation. In view of the above discussion, none of the substantial questions of law have any substance and hence are answered accordingly.
32. For all the foregoing reasons, this Second Appeal is https://www.mhc.tn.gov.in/judis dismissed, confirming the judgment and decree, dated 17.03.2016, 39/40 S.A.No.77 of 2017 passed by Additional Sub-Judge, Villupuram, in A.S.No.21 of 2012. No costs. Consequently, the connected Civil Miscellaneous Petition is closed.
Internet : Yes 20-07-2021
Index : Yes
mkn/dixit
To
1.The II Additional Sub-Judge,
Villupuram.
2.The Additional District Munsif,
Villupuram.
https://www.mhc.tn.gov.in/judis
40/40 S.A.No.77 of 2017
S.S. SUNDAR, J.
mkn/dixit
S.A.No.77 of 2017
20.07.2021
https://www.mhc.tn.gov.in/judis