Madras High Court
Sundari vs Gandhi on 20 September, 2019
Author: R.Subramanian
Bench: R.Subramanian
S.A.No.196 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.09.2019
CORAM:
THE HON'BLE MR.JUSTICE R.SUBRAMANIAN
S.A.No.196 of 2014
and M.P.No.1 of 2014
Sundari ..Appellant
Vs.
1. Gandhi
2. Mayiladuthurai Municipality,
Represented by its Commissioner,
Pattamangala Street,
Mayiladuthurai,
Nagapattinam District. ..Respondents
PRAYER: Second Appeal filed under Section 100 of C.P.C., to set aside the
judgment and decree of the learned Principal Sub Judge, Mayiladuthurai,
dated 12.11.2013 in A.S.No.7 of 2013, modifying the judgment and decree of
the learned District Munsif, Mayiladuthurai, dated 06.12.2012 in O.S.No.153 of
2011.
For Appellant : Mr.S.Sounthar
For Respondent (R1) : Mr.A.Muthukumar
For Respondent (R2) : No appearance
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S.A.No.196 of 2014
JUDGMENT
The 1st defendant in O.S.No.153 of 2011, who suffered a decree for declaration that the plaintiff has got a natural right to reach the road on the east of A schedule property from every point it abuts the road and for consequential mandatory injunction directing the 2nd defendant to remove the encroachment made by the 1st defendant in the 'B' Schedule property on its conformation by the lower appellate Court in A.S.No.7 of 2013, has come up with the second appeal.
2. The case of the plaintiff before the trial Court was that he owns property bearing D.No.15D/4, Thirmanjana Veedhi, Koranad, Mayiladudurai. The suit property is bounded by Thirumanjana veedhi on the east and cauvery line karai on the north. According to the plaintiff, the main entrance of the property is facing east opening on Thirumanjana Veedhi. The plaintiff would contend that the 1st defendant had encroached upon the Thirumanjana Veedhi and put up a hut obstructing the access of the plaintiff to Thirumanjana Veedhi. Claiming that the plaintiff has right of access to the public road from every point his property abuts the same, the plaintiff sought for the aforesaid relief.
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3. The 1st defendant resisted the suit contending that the property on which he had put up a hut is a Government poramboke land and it is not a road poramboke. Being Government poramboke land, the plaintiff has no right over the same and he cannot claim a easementry right as if his property abuts the public Road.
4. The Mayiladudurai Municipality which was impleaded as 2nd defendant in the suit filed a written statement, admitting that the 1st defendant had encroached upon the road margin and expressing their inability to take action since the 1st defendant seeks alternative land.
5. The Courts below upon consideration of the evidence on record, concluded that the portion encroached by the 1st defendant forms a part of Thirumanjana Veedhi and the plaintiff as the owner of the land abutting a public street has got a right of access from every point of his land which abuts a public street. The claim of the 1st defendant that the land in her occupation is not a road margin was rejected by the Courts below.
6. Aggrieved, the 1st defendant is on appeal.
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7. The 2nd respondent Municipality though served has not entered appearance either in person or through counsel.
8. I have heard Mr.S.Sounthar, learned counsel for the appellant and Mr.A.Muthukumar, learned counsel for the 1st respondent.
9. The following question of law was framed at the time of admission:
Whether both the Courts below is correct in granting mandatory injunction and permanent injunction is legally correct or perverse finding while the owner of the property is Government or Municipality? (sic)
10. Mr.S.Sounthar, learned counsel appearing for the appellant would draw my attention to the evidence of P.W 1, wherein P.W.1 had admitted that the property over which the 1st defendant has put up construction has been classified as Government poramboke. Therefore, according to him, the Courts below were not right in applying the law relating to the right of owner of the property abutting a public road to have access to reach it from every point his property abuts the road. According to Mr.S.Soundhar, the right to have access to the public road will be applicable only if the property is shown to be abutting the public road.
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11. Contending that in view of the admission of P.W.1, it is clear that there is Government poramboke land in between the plaintiff's land on the west and Thirumanajana Veedhi situate on the East. Therefore, according to Mr.S.Sounthar, the Courts below were not right in granting a decree in favour of the plaintiff as he is the owner of the land abutting a public road.
12. Contending contra, Mr.A.Muthukumar, learned counsel for the plaintiff/ 1st respondent would submit that the Inspector of Municipality / DW2 had deposed that the 1st defendant has encroached upon the road portion. The admission in cross examination of DW3 is as follows:
"jpUk";rd tPjp bjw;F tlf;fhf mike;Js;sJ vd;why; rupjhd;/ jpUk";rd tPjpf;F nkw;fhy; 15 mo js;spjhd; rhiyapy; Mf;fpukpj;J tPL fl;o cs;shu;
vd;why; rupjhd;"
13. In view of the categoric evidence of the official witness, the contention of the learned counsel for the appellant that the admission of P.W1 to the effect that the land encroached by the defendant/appellant has been classified as Government poramboke and therefore, the right of the plaintiff as claimed in the plaint cannot be declared, cannot be accepted. 5/12 http://www.judis.nic.in S.A.No.196 of 2014
14. Mr.A.Muthukumar, would draw my attention to the Judgment of this Court in Bharathamatha Desiya Sangam, Madhavaram, by its Secretary, M.Subramania Naiker & another Vrs. Roja Sundaram & 2 others reported in 99 LW 833, wherein this Court recognizes the right of the owner of a property abutting the public road to have access to the public road from every point his property abuts the public road. In the said judgment, the learned Judge had also considered the question of limitation and the delay bringing the action.
15. In Bharathamatha Desiya Sangam, Madhavaram, by its Secretary, M.Subramania Naiker & another Vrs. Roja Sundaram & 2 others supra, the learned judge on the question of limitation has observed as follows:
“9. That leaves for consideration the plea of limitation, Learned counsel for the appellants, drawing attention to paragraph 8 of the plaint, contended that the offending structures were put up five or six years prior to the filing of the suit on 6th October, 1967 and that the suit should have been instituted within three years, when the right to sue accrued as per Article 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, a 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.Kanakamma v. T.Ranga Rao, A.I.R.1957 Andhra Pradesh 419.6/12
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10. ...... In a situation similar to the one in this particular case, in K.Kanakamma v. T.Ranga Rao., supra, 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 a continuing wrong within the meaning of S.23 of the Limitation Act, 1908. On the facts of this case, the principle referred to above would be applicable and there is, therefore, no substance in the plea of limitation put forth by the appellants.
Consequently, no case for interference with the judgment and decree of the lower appellate Court is made out.”
16. In K.Kanakamma v. T.Ranga Rao supra, the right of a person who owns the property adjoining a public street or road was considered. After referring to various judgments of the Hon'ble Supreme Court including the Judgment in Patna Municipality V. Dwarka Prasad reported in A.I.R1939 Patna 683 it was held as follows:
“7. In so far as the right of the first respondent to have access to Sundara Vinayakar Koil Street on the north from every point along A.D.Line is concerned, there cannot be any serious dispute. Though the appellants put for the plea that originally what is now called Sundara Vinayakar Koil Street was only a battai and not a street as such, no acceptable evidence has been made available to establish that previously there was no street 7/12 http://www.judis.nic.in S.A.No.196 of 2014 at that place and that Sundara Vinayakar Koil Street had been formed only recently. It has, therefore, to be taken that the street had been in existence for a long number of years. The only question is whether the first respondent has a right of access to the street on the north from every point along A D Line free from the obstructions caused by the appellants and respondents 2 and 3. There is no dispute that Sundara Vinayakar Street is a public street. Owners of houses of premises abutting a roadway are entitled to have access to that roadway from all points on the boundary of their land and if any obstruction is caused over the road margin securing such access, the person entitled to have such access can certainly enforce that right. In Municipal Committee, Delhi v. Mohammed 1 Ibrahim , it was laid down that to the owners of houses abutting a public highway, the question of frontage means a great deal and if anything is done by those in whom the highway vests which interferes with the rights of the owners with regard to the highway and which tends to diminish the comforts of the occupants of the house, the owners will undoubtedly, have an actionable claim against them and in such cases it is unnecessary to prove any special injury. Patna Municipality v. Dwarka 8 Prasad laid down that the owner of the land abutting a roadway is entitled to access to that roadway at all points on his boundary. The availability of such a right was also extended to the occupier of a land adjoining the highway in Manbhum District Board v. Bengal Nagpur Railway Co3, where it was pointed out that the right of access to the highway at all points where a land adjoins the highway at all points belongs not only to the owner of the land, but also to the occupier and the occupier can sue for removal of obstruction interrupting his right of access to the highway and the fact that the owner or occupier of the adjacent land had fenced it off or raised a wall for his convenience or opened a gateway on the other side cannot affect his right of access to the highway. It would also be relevant in this connection to refer to Mackenzie's law of Highway, Twenty-first Edition at page 58 where it is stated as follows:8/12
http://www.judis.nic.in S.A.No.196 of 2014 “ The owner of land adjoining a highway has a right of access to the highway from any part of his premises. This is so whether he or his predecessors originally dedicated the highway or part of it and whether he is entitled to the whole or some interest in the ground subjacent to the highway or not... The right of the owner of land adjoining a highway to access to or from the highway from or to any part of his land is a private right, distinct from the right to use the highway as one of the public, and the owner of the land whose access to the highway is obstructed may maintain an action for the injury, whether the obstruction does or does not also constitute a public nuisance.” Relying upon the aforesaid passage, in Damodara Naidu v. Thirupurasundari Ammal, Raghavan, J. held that where there is a public highway, the owners of land adjoining the highway have a right to go upon the highway from any point on their land; and if that right is obstructed by anyone, the owner of the land abutting the highway is entitled to maintain an action for the injury, whether the obstruction does or does not constitute a publci nuisance. To similar effect is the decision in Ganapathi Mudaliar v. Ponnusami Kounder5, where it was pointed out that an obstruction caused to the right of access to and from the dwelling house could cause damage directly to the occupiers of houses and a suit could be maintained for the invasion or interference of that right and such a suit will lie without proof of special damage or even without sanction under S.91, Code of Civil Procedure. Therefore, there cannot be any doubt or dispute about the right of the first respondent to have access to Sundara Vinayakar Koil Street on the north from every point on A D Line.9/12
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17. In view of the above, the law in this regard is well settled. A Right of the owner of the property abutting a public road or a public path to have access to the public road or public path from all point of his property that abuts the road cannot be denied. The only contention of the learned counsel appearing for the appellant is that the plaintiff as P.W 1 has admitted the land in which he has put up construction is a Government poramboke land and not a road margin or road. Therefore, according to him, the Courts below are not right in granting a decree in favour of the plaintiff.
18. As already pointed out D.W.3, official witness, Inspector of Municipality, has clearly deposed that the place where hut was put up by the 1st defendant forms part of the road called Thirumananjana Veedhi. It is also claimed that in view of the said construction, usual width of the road has been reduced. Therefore, I am unable to accept the contention of the learned counsel for the appellant that in view of the evidence of P.W.1, the right of the plaintiff would be affected. On the questions of law framed at the time of admission, I do not find any perversity in the findings of the Courts below in as much as the evidence of D.W.3 shows that the 1st defendant has encroached upon the road margin.10/12
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19. Hence, the question of law is answered against the appellant. Therefore the second appeal fails and it is dismissed. Consequently, connected miscellaneous petition is closed. There shall be no order as to costs.
20.09.2019
vum
Index : Yes
Speaking order
To
1. The Principal Sub Court,
Mayiladuthurai.
2. The District Munsif,
Mayiladuthurai.
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S.A.No.196 of 2014
R.SUBRAMANIAN, J.
vum
S.A.No.196 of 2014
and M.P.No.1 of 2014
20.09.2019
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