Madras High Court
Abdul Nazar vs Nagercoil Municipality on 18 July, 2018
Author: M.Sundar
Bench: M.Sundar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 18.07.2018
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
S.A(MD)No.9 of 2012
and
CROS.OBJ(MD)No.23 of 2014
S.A(MD)No.9 of 2012:
1.Abdul Nazar
2.Tahira Nilamudeen
3.Kairunnisa Jahabar Ali .. Appellants/
Plaintiffs
Vs.
1.Nagercoil Municipality
represented by its Commissioner,
Agasteeswaram Taluk,
Kanyakumari District.
2.Government of Tamilnadu
represented by District Collector,
Nagercoil, Kanyakumari District. .. Respondents/
Defendants
PRAYER: Second Appeal is filed under Section 100 of the Code of Civil
Procedure, 1908, against the Judgment and decree dated 28.06.2010 passed in
Appeal Suit No.44 of 2009 by the Principal Sub Court, Nagercoil confirming
the Judgment and decree dated 14.08.2009 passed in Original Suit No.693 of
2002 by the Principal District Munsif Court, Nagercoil.
!For Appellants : Mr.S.Ramesh
^For Respondent No.1 : Mr.P.Athimoolapandian,
Standing counsel.
For Respondent No.2 : Mr.C.Ramar,
Additional Government Pleader.
CROS.OBJ(MD)No.23 of 2014:
Nagercoil Municipality
represented by its Commissioner,
Agasteeswaram Taluk,
Kanyakumari District. .. Cross Objector/
Respondent No.1
Vs.
1.Abdul Nazar
2.Tahira Nilamudeen
3.Kairunnisa Jahabar Ali .. Respondents
1 to 3/Appellants 1 to
3
4.Government of Tamilnadu
represented by District Collector,
Nagercoil, Kanyakumari District. .. Respondent No.4/
Respondent No.2
PRAYER: Cross Objection is filed under Order XLI Rule 22 of CPC against
against the Judgment and decree dated 28.06.2010 passed in Appeal Suit No.44
of 2009 by the Principal Sub Court, Nagercoil confirming the Judgment and
decree dated 14.08.2009 passed in Original Suit No.693 of 2002 by the
Principal District Munsif Court, Nagercoil.
For Cross Objector : Mr.P.Athimoolapandian,
Standing counsel.
For Respondents 1 to 3 : Mr.S.Ramesh
For Respondent No.4 : Mr.C.Ramar,
Additional Government Pleader.
:COMMON JUDGMENT
This litigation commenced on 05.12.2002, when one M.Abdul Nazar and two others [three plaintiffs] filed a suit in O.S.No.693 of 2002 on the file of 'Principal District Munsif's Court, Nagercoil', which shall hereinafter be referred to as 'Trial Court' for brevity. 'M.Abdul Nazar and two others' are hereinafter referred to as 'plaintiffs' for the sake of convenience and clarity. Aforesaid suit was filed by the plaintiffs against Nagercoil Municipality and State of Tamil Nadu represented by Kanyakumari District Collector, arraying them as defendants 1 and 2 respectively.
2.In the plaint, vide which, the aforesaid suit was filed, there are two schedules, i.e., 'A' schedule and 'B' schedule.
3.It is the case of the plaintiffs that 'A' schedule property belongs to them. It is land admeasuring 16 cents or thereabouts together with a superstructure thereon comprised in Survey Nos.37/1-100-A to G in Nagercoil Village, Agasteeswaram Taluk, Kanyakumari District.
4.It is the further case of the plaintiffs that 'B' schedule is a pathway, which is 6 feet wide and 100 feet long.
5.It is plaintiffs' further say that 'B' schedule pathway lies on the northern side of plaintiffs' 'A' schedule property and that plaintiffs have been using the 'B' schedule pathway as access to 'A' schedule property. On the ground that the use of 'B' schedule pathway by the plaintiffs is being obstructed by the first defendant [hereinafter referred to as 'said municipality' for clarity and convenience], the aforesaid suit was filed.
6.Defendants entered appearance and first defendant filed a written statement. The crux of the defence of said municipality is that 'B' schedule pathway lies on the eastern end of the outgoing pathway of Anna Bus Stand and that 'B' schedule pathway is being used by the passengers as well as buses. It was also the case of the said municipality that the 'B' schedule pathway is more in the nature of cement concrete slabs covering a drainage channel. Further plea on the part of the said municipality was that plaintiffs have another access to their 'A' schedule property.
7.On the aforesaid rival pleadings, issues were framed by the Trial Court. The issues are four in number and they are as follows:
?1.Whether the plaintiff is entitled to the relief claimed for?
2.Whether the plaintiff has pathway right to plaint 'B' scheduled property?
3.Whether the wall was not constructed before the initiation of the suit?
4.What other relief the plaintiff is entitled to??
8.Parties went to trial on the aforesaid issues.
9.On the side of the plaintiffs, first plaintiff, M.Abdul Nazar examined himself as P.W.1 and one Ramaswamy, a third party, was examined as P.W.2. As many as twelve documents, i.e., Ex.A.1 to Ex.A.12 were marked on the side of the plaintiffs. On the side of the defendants, one Selvamani, who is Superintendent in the office of the said municipality was examined as D.W.1 and no documents were marked on the side of the defendants. In the course of the trial, an Advocate Commissioner was appointed and his Report has been marked as Ex.C.1.
10.After full contest and trial, the Trial Court, disposed of the aforesaid suit, vide Judgment and decree, dated 14.08.2009, in and by this Judgment and decree dated 14.08.2009, the Trial Court acceded to the prayer of the plaintiffs with regard to declaration limb, but dismissed the prayer with regard to the injunction limb. To be noted, the prayer in the plaint reads as follows:
?RELIEF (A) A decree for declaration that the plaintiffs are having the free access from any part of plaint B schedule property to A schedule property and vice versa as of right, without any interruption as easement by prescription and easement by necessity.
(B) A decree for permanent injunction restraining the 1st defendants their subordinates, servants from installing or planting or constructing any wall, Parapet wall, Name boards or pillars or barbed wires in the plaint B schedule property.
(C) Decree for costs of the suit?.
In other words, plaint prayer qua limb 'A' was acceded to and plaint prayer qua limb 'B' was negatived.
11.Against the aforesaid Judgment and decree, dated 14.08.2009, the plaintiffs as well as the said municipality filed independent appeals. Both appeals are regular first appeals under Section 96 of 'Code of Civil Procedure, 1908' [hereinafter referred to as 'CPC' for the sake of brevity]. The regular first appeal preferred by the plaintiffs is A.S.No.44 of 2009 and the regular first appeal preferred by the said municipality is A.S.No.52 of 2009. Both are on the file of 'Principal Sub Court, Nagercoil', which shall hereinafter be referred to as 'first appellate Court' for the sake convenience and clarity. First appellate Court framed points for determination/points for consideration in accordance with the mandate under Order XLI Rule 31 CPC and heard both the first appeals together. After full contest and hearing, the first appellate Court, vide common Judgment and decree, dated 28.06.2010, dismissed both the appeals. In other words, the consequence of both the appeals being dismissed means that the aforesaid Judgment and decree of the Trial Court, dated 14.08.2009, acceding to the declaration prayer and negativing the injunction prayer, stood confirmed. In the above backdrop, both the adversaries, i.e., plaintiffs and the said municipality have carried the matter to this Court. While plaintiffs have filed the instant second appeal being S.A(MD)No.9 of 2012, the said municipality has filed a cross objection, which is CROS.OBJ(MD)No.23 of 2014.
12.The second appeal was admitted by this Court on 30.03.2016 on three substantial questions of law and they are as follows:
?1.Whether both the Courts below are right in dismissing the prayer of permanent injunction having found that the plaintiff is having right to use the B Schedule property as pathway to have ingress and egress to A schedule property?
2.Whether both the Courts below are right in directing the plaintiff to file a suit for mandatory injunction, to remove the wall constructed by the 1st defendant, during the pendency of the suit?
3.Whether both the Courts below are right in ignoring the fact that the Trial Court in I.A.No.1498/2002 granted an order of interim mandatory injunction to remove the wall??
13.Now the matter is before this Court for final disposal. As would be evident from the narrative supra, in the second appeal as well as cross objection put together, for all practical purposes, there are three parties to the litigation. One is the plaintiffs, second is the said municipality and the third is the 'State of Tamil Nadu represented by Kanyakumari District Collector', which shall hereinafter be referred to as 'State'.
14.As there is an appeal and cross objection, for the sake of convenience and clarity, the parties will continue to be referred to in the same manner in which they are being referred to thus far.
15.On behalf of the plaintiffs, Mr.S.Ramesh, learned counsel, was before this Court. On behalf of said municipality, Mr.P.Athimoolapandian, learned standing counsel for the said municipality, was before this Court. On behalf of State, learned Additional Government Pleader, Mr.C.Ramar, was before this Court.
16.This Court heard all the learned counsel and both the second appeal and cross objection were taken up for final disposal, by consent of all the parties. In any event, both the second appeal and cross objection were listed for final disposal before this Court.
17.Mr.S.Ramesh, learned counsel for the plaintiffs pointed out that owners of the adjacent property, i.e., property adjacent to that of the plaintiffs or in other words, the property adjacent to schedule 'A' property supra, filed a similar suit with regard to the same 'B' schedule pathway, vide O.S.No.695 of 2002 on the file of the Trial Court. It was pointed out by the learned counsel for the plaintiffs that O.S.No.695 of 2002 ended in favour of the adjacent property owner or in other words, it was decreed. It was also pointed out that said municipality carried it in appeal by way of A.S.No.29 of 2009 on the file of the first appellate Court and the same was also dismissed, confirming the Judgment and decree of the Trial Court. It was pointed out that the said municipality filed a second appeal in this Court against the aforesaid concurrent Judgments and decrees with regard to adjacent property, that second appeal is S.A(MD)No.755 of 2010 and that the said second appeal came to be allowed in part, vide Judgment and decree, dated 22.10.2010 by another learned Single Judge of this Court.
18.To be noted, plaint in O.S.No.695 of 2002 has been marked as Ex.A.12. Judgment in S.A(MD)No.755 of 2010, dated 22.10.2010 has been placed before me.
19.It is not in dispute before this Court and there is no dispute or disagreement that the Judgment in S.A(MD)No.755 of 2010, dated 22.10.2010 pertains to the adjacent property, i.e., property adjacent to the plaintiffs' property and that it pertains to the same 'B' schedule pathway.
20.It is also seen that in O.S.No.695 of 2002, i.e., the other suit, the Trial Court directed the said municipality to remove the wall to an extent of 11 feet put up in 'B' schedule pathway. It was pointed out that in the instant case, the original prayer with regard to injunction being 'B' supra, was with regard to injunction, but the Trial Court negatived the same on the ground that it has become infructuous. It is also submitted that 11 feet wall was put up by the said municipality in the 'B' schedule pathway pending lis. However, with regard to the same 11 feet wall, that has been put up by the said municipality, there is a decree by the Trial Court to remove the wall, such decree has been confirmed by the first appellate Court in a regular first appeal after full contest and the second appeal against the same has also been partly allowed, wherein the direction of the Trial Court to remove the wall, has not been dislodged or disturbed, but with regard to the 'B' schedule pathway, it has been held that 4 feet pathway is sufficient. In the aforesaid circumstances, it becomes necessary to extract the entire Judgment of the other learned Single Judge, made in S.A(MD)No.755 of 2010, being Judgment, dated 22.10.2010, and the same reads as follows:
?JUDGMENT The concurrent Judgments and decrees passed in Original Suit No.695 of 2002 by the Principal District Munsif Court, Nagercoil and in Appeal Suit No.29 of 2009 by the Principal Sub Court, Nagercoil are being challenged in the present second appeal.
2.The respondent herein as plaintiff has instituted Original Suit No.695 of 2002 on the file of the trial Court for the reliefs of declaration and permanent injunction, wherein the present appellant has been shown sole second defendant.
3.It is averred in the plaint that the plaintiff and his brother by name Mohammed Khan have jointly purchased the suit 'A' schedule property under a registered sale deed dated 22.11.1996 and the brother of the plaintiff has passed away on 19.06.1999. After his demise, his wife and others have relinquished their right in favour of the plaintiff under a release deed dated 05.07.1999 and therefore, the plaintiff has become absolute owner of the suit 'A' schedule property. In the suit 'A' schedule property the plaintiff has been running a fancy store. The suit 'B' schedule property is being used as a pathway so as to have ingress and egress to the suit 'A' schedule property. The defendant all of a sudden has restrained the plaintiff from using the suit 'B' schedule property. In the suit 'B' schedule property the plaintiff is having an easementary right. Since the defendant has been making arrangement to disturb the peaceful enjoyment of the suit 'B' schedule property, the present suit has been instituted for the reliefs sought for in the present suit.
4.In the written statement filed on the side of the defendant it is averred that the defendant is the owner of the suit 'B' schedule property and the defendant is having exclusive right, title and interest over the same.
The plaintiff has put up construction by way of violating existing acts and rules. It is false to contend that the suit 'B' schedule property has been utilised by the plaintiff so as to reach the suit 'A' schedule property. Since the suit 'B' schedule property is nothing but a ditch it cannot be used as a pathway. The defendant has put up footsteps and also boundary wall on the eastern side of the suit 'B' schedule property. The plaintiff is not having any right over the same. There is no merit in the suit and the same deserves to be dismissed.
5.On the basis of the rival pleadings raised on either side the trial Court has framed necessary issues and after analysing both the oral and documentary evidence has decreed the suit as prayed for and thereby directed the defendant to remove the wall to the extent of 11 feet. Against the Judgment and decree passed by the trial Court, the defendant as appellant has preferred Appeal Suit No.29 of 2009 on the file of the first appellate Court.
6.The first appellate Court after hearing both sides and upon reappraising the evidence available on record has dismissed the appeal and thereby confirmed the Judgment and decree passed by the trial Court. Against the concurrent Judgments passed by the Courts below, the present second appeal has been preferred at the instance of the defendant as appellant.
7.As agreed by the learned counsels appearing for both sides, the present second appeal is disposed of on merits at the stage of admission.
8.On the side of the appellant/ defendant, the following substantial questions of law have been raised for consideration:
(i)Are the Courts below correct in decreeing the suit without requisite pleading and proof?
(ii)Are the Courts below correct in declaring easmentary right of way in absence of facts to show the enjoyment of rights for the prescriptive period of 30 years?
(c) In absence of any statutory provisions either under Easement Act or Evidence Act can the Court make presumption of existence of such right?
(d)Are the Courts below not erred in presuming easementary and shifted the burden of proof on the defendants contrary to the provisions of Evidence Act?
(e)The suit property being a drain and vested with the municipality any usage over it or putting up construction is prohibited and regulated under sections 142 and 143 of the Tamil Nadu District Municipalities Act, 1920, can the Courts below grant easementary right of way over the drain, ignoring the legal provisions?
(f)The appellant being municipality governed under the Tamil Nadu District and Municipality Act on whom public drain is vested and has statutory authority to maintain under section 137 of the Act, can the appellant be injuncted for discharging statutory duties?
(g)Are the Courts below failed to apply its mind to Ex.B1 which is approved plan of plaintiff building, a statutory document, which clearly show the access road to the plaintiff's building is different from the pathway claimed under suit?
(h)The Court below ought to have concluded on the basis of Ex.B1 what was given there under is license and not easmentary right?
(i)Is not lower appellate Court erred in holing that the trial court has not decreed based on weakness in the defence?
(j)The lower appellate Court held that the appellant municipality has not adduced any evidence to prove the plea that ?plaintiff ought to stand in its own leg and not on the weakness of the defendant.? Is not the lower appellate Court erred in holding that the appellant has not adduced any evidence to prove the same?
(k)Is not the lower appellate Court misdirected in holding that no proof has been adduced without applying its mind to the trial Court Judgment?
9.The crux of the case of the plaintiff is that the plaintiff is the absolute owner of the suit 'A' schedule property wherein he has been running a fancy store and the suit 'B' schedule property is nothing but a ditch and the same is situate in front of the suit 'A' schedule property and the same has been used so as to reach the road which situates on the western side of the suit 'A' and 'B' schedule property and now the defendant has covered the suit 'B' schedule property by way of putting slaps and also raised wall at the eastern side of the suit 'B' schedule property. Under the said circumstances, the present suit has been instituted for the reliefs sought for therein.
10.In the written statement filed on the side of the defendant it is averred that the suit 'B' schedule property is nothing but a ditch and for the use of general public the same has been covered by putting slaps and also in order to deter encroachments, a wall has been raised on the eastern edge of the suit 'B' schedule property and since the suit 'B' schedule property absolutely vest with the defendant, the defendant is having unfettered right to cover the same and also to raise wall and therefore, the plaintiff is not entitled to get the reliefs sought for in the plaint.
11.As stated earlier both the Courts below have concurrently rejected the defence taken on the side of the defendant and the trial Court has directed the defendant to remove the wall alleged to have been put up by him upto the extent of 11 feet and the first appellate court has also upheld the same.
12.The learned counsel appearing for the appellant/defendant has strenuously contended that in the trial Court an Advocate Commissioner has been appointed and he filed his report and plan, wherein it has been clearly stated that behind the suit 'A' schedule property so many shops are available and the owners of other shops are having separate way so as to reach Premier Studio Street and since alternative way is available to the suit 'A' schedule property, the plaintiff is not having any easmentary right over the suit 'B' schedule property and therefore, the claim made on the side of the plaintiff is not legally maintainable and the Courts below have failed to look into the same and therefore, the concurrent Judgments passed by the Courts below are liable to be interfered with.
13.In support of the contention urged on the side of the appellant/defendant, the following decisions have been accited:
(a)In 1998 III MLJ 412 (Jeyabalan and others V. V.Bal Naicker (died) and others) this Court has held that "when alternative pathway is available so as reach the property, right of easement is not available.?
(b)In 1998 1 MLJ 151 (Nanjammal and others V. Marappa Goundar and another), this Court has held that "when there are other ways of ingress and egress, an easement of necessity cannot be claimed merely on the ground that such ways are inconvenient."
(c)In (2002) 2 MLJ 659 (Ponnaiyan alias Ponnusami Gounder and others V. Karuppakkal alias Ponnayal and others), this Court has held that "alternative cart track is available and therefore, easement of necessity does not arise."
14.In order to repel the argument advanced by the learned counsel appearing for the appellant/defendant, the learned counsel appearing for the respondent/plaintiff has sparingly contended that the suit 'A' schedule property is facing on the road which situates on its western side and in between the suit 'A' schedule property and the road which situates on its western side, the suit 'B' schedule property is situate and further, doorway of the suit 'A' schedule property is facing towards the road. Under the said circumstances, the plaintiff is having every right to pass through the suit 'B' schedule property and further as per section 143 of the Tamil Nadu District Municipalities Act, 1920, the defendant is not having any right to cover the suit 'B' schedule property by way of putting permanent slap. Under the said circumstances the present suit has been instituted and the Courts below after considering the overall circumstances available in the present case, have rightly rejected the defence taken on the side of the defendant and therefore, the concurrent Judgments passed by the Courts below are not liable to be interfered with.
15.In support of his contention he has drawn the attention of the Court to the provision of Section 143 of the Tamil Nadu District Municipalities Act, 1920 and the same reads as follows:
?Construction of culverts or drain-coverings by owner or occupier.-
(1)The [Executive Authority] may, by notice, require the owner or occupier of any building or land adjoining a public street to construct culverts or drain-coverings over the side-channels or ditches at the entrances to the said building or land.
(2)All culverts or drain-coverings or pials maintained over side-
channels or ditches by the owners or occupiers of adjacent buildings or lands shall be of such form and size and consist of such materials and be provided with such means of ventilation as the [executive authority] may, by notice, require and shall be maintained and kept free from all obstruction at the expense of the said owners or occupiers?.
16.From the close reading of the said provision, it is made clear to the Court that the Municipal Authority is having every right to direct the owner of adjoining land or building to cover public street or culvert or drainage.
17.The learned counsel appearing for the respondent/plaintiff has also relied upon the decision reported in 1994 1 LW 470 (O.N.Natarajan and another V. The Municipal Council, Thuraiyur rep. by its Executive Authority and Commissioner), wherein in paragraph-6 of the Judgment, this Court has observed as follows:
"Mr.M.Narayanaswami, learned counsel for the plaintiff would contend that the suit street is a public street within the meaning of S.3(21) of the Tamil Nadu District Municipalities Act, hereinafter called the Act; that the plaintiffs as owners of the property abutting the public street is entitled to have access to and from the suit street; that the defendant is not entitled to put up any fence preventing the plaintiffs and their men from having access to the suit street from their properties on the north and that the courts below erred in going into the question whether the defendant- Municipality has dedicated the street in question expressly or impliedly for public use. There is substance in the contention of the learned counsel for the plaintiffs. S.180-A of the Act runs as follows:-
"All streets vested in or to be vested in or maintained by a Municipal Council shall be open to persons of whatever caste or creed."
18.From the close reading of the said decision, it is made clear that all streets vested in or to be vested in or maintained by Municipal Council, shall be open to persons of whatever caste or creed. Therefore, it is easily discernible that all streets vested with Municipality must be open to all persons whatever may be the caste or creed.
19.In the instant case, the Court has to analyse the juxtaposition of the suit 'A' and 'B' schedule property and its adjoining road. It is an admitted fact that the suit 'A' schedule property is situate immediately on the eastern side of the suit 'B' schedule property. On the western side of the suit 'B' schedule property a road is situate. In between the suit 'A' schedule property and road, the suit 'B' schedule property is situate and further the suit 'A' schedule property is facing towards the road which situates immediately on the western side of the suit 'B' schedule property. Under the said circumstances, the plaintiff is having every right to pass through the suit 'B' schedule property.
20.The learned counsel appearing for the respondent/plaintiff has taken much pain on the basis of the provision of section 143 of the Tamil Nadu District Municipalities Act, 1920. As adverted to earlier, section 143 of the Tamil Nadu District Municipalities Act, 1920 enables the Municipality so as to direct the owner of adjoining land or building to make necessary arrangements to cover any culvert or drainage. That does not mean that Municipality is not having any power either to cover the drainage or put up culvert.
21.In the instant case, it is an admitted fact that the entire suit 'B' schedule property has been covered by way of putting slaps and on the eastern edge of the suit 'B' schedule property, the defendant/Municipality has raised a wall upto the level of 7 feet. By way of raising the said wall, the plaintiff is not having any access to the road through the suit 'B' schedule property.
22.The Courts below after considering the juxtaposition of the suit 'A' schedule property and also the wall as well as the slaps put up by the defendant have uniformly directed the defendant to remove the wall to the extent of 11 feet. Since the plaintiff is having every right to pass through the suit 'B' schedule property, the defendant is bound to remove the wall so as to enable the plaintiff to have free ingress and egress over the suit 'B' schedule property.
23.As adverted to earlier, the trial Court has directed the defendant to remove the wall upto 11 feet. The consistent case of the plaintiff is that the suit 'A' schedule property is facing towards the street which situates on its western side and since the defendant has put up wall, the plaintiff is not having ingress and egress to the suit 'A' schedule property and therefore, the present suit has been instituted. Considering the nature of the business which is being run in the suit 'A' schedule property, this Court is of the view that four feet is sufficient so as to have easy access to the suit 'A' schedule property through the suit 'B' schedule property and to that extent alone the present second appeal can be allowed.
24.In fine, this second appeal is allowed in part without cost at the stage of admission. Connected Miscellaneous petition is closed. The Judgment and decree passed by the Courts below are modified as follows:
The appellant/defendant is directed to remove the wall upto the extent of 4 feet. In other aspects, the concurrent Judgments and decrees passed by the Courts below are confirmed?.
[Underlining made by Court to supply emphasis and highlight].
21.As mentioned supra, there is no dispute or disagreement that the aforesaid Judgment pertains to plaintiffs' adjacent property and that the subject matter of suit is the same 'B' schedule pathway. After affirming this obtaining factual position, learned standing counsel for the said municipality made submissions before this Court. Those submissions are as follows:
(a)The suit in the instant case being O.S.No.693 of 2002 on the file of the Trial Court is barred by limitation and more particularly, barred by Article 135 of the Limitation Act.
(b)Suit 'B' schedule pathway is more in the nature of slabs covering a drainage channel.
(c)Ex.A.7 in the Trial Court would reveal that the said municipality had only permitted the plaintiffs to use the 'B' schedule pathway and therefore, they cannot claim any right over the same.
(d)It was pointed out that the injunction application taken out in the Trial Court by the plaintiffs was negatived, the same was carried by way of appeal in a regular civil miscellaneous appeal and the plaintiffs did not amend the plaint, even thereafter seeking mandatory injunction.
(e)Plaintiffs have another access for the suit property as the southern boundary of the 'A' schedule property is a State Highway.
22.Responding to the above, Mr.S.Ramesh, learned counsel for the plaintiffs submitted as follows:
(a)The suit is not barred by limitation, as the suit has been filed on 05.12.2002 immediately after construction of the 11 feet wall.
(b)That it is by way of concrete slabs covering drainage channel, does not take away the character of a pathway.
(c)Ex.A.7 was marked on behalf of the plaintiffs and the right cannot be taken away.
(d)Injunction application being negatived and the plaint not being amended, will not come in the way as the Court can always mould the relief.
(e)Law is well settled that owner of a property is entitled to access from all points.
23.With regard to plea of limitation, there is nothing on record for the learned counsel for the said municipality to assert the date, when the 11 feet wall was constructed. In fact, there is nothing on record even to demonstrate the period, during which the wall was constructed. There is no difficulty in considering the plea of limitation in the light of Section 3 of the Limitation Act, 1963, which mandates that the plea of limitation has to be considered, even if limitation has not been set up as a defence. However, when it is submitted that the suit is barred by limitation and when it is not in dispute that the suit has been filed on 05.12.2002, it should be established or atleast submitted as to the date on which the wall was constructed and it should be demonstrated that the suit has been filed beyond three years and therefore, hit by Article 135, but that is not the case here. Be that as it may, the other suit out of which the aforesaid Judgment of this Court made by another learned Single Judge arises, is O.S.No.695 of 2002, which is merely two numbers away in terms of sequence qua suit numbers. In other words, the instant second appeal arises out of O.S.No.693 of 2002 in the Trial Court. Therefore, both the suits ought to have been filed in the same time. As alluded to supra, there is a direction by the Trial Court to remove the wall, which has been confirmed by the first appellate Court as well as by this Court in the second appeal, as mentioned supra. Therefore, when there is already a decree for removal of wall, that has been confirmed by the another learned Single Judge of this Court, the same cannot now be gone into in this second appeal, as the Judgment made by the another learned Single Judge is operating. In any event, the plea of limitation has not been pleaded with any accuracy for considering the same, as the said municipality is expected to give the date or the period, during which the 11 feet wall was constructed.
24.With regard to pathway being slabs covering drainage channel, the same plea has been taken in the other suit also. It has been noticed that the said municipality has raised a wall upto the level of 7 feet on the eastern edge of 'B' schedule pathway and this puts an end to this submission. With regard to Ex.A.7, to be noted, this is a document that was filed by the plaintiffs and the fact that the plaintiffs have been paying tax to the municipality for use of the pathway, only buttresses and bolsters the submission on behalf of the plaintiffs.
25.With regard to injunction application, as mentioned supra, in any event, there is a decree of a civil Court, directing removal/demolition of the wall, which has been confirmed, by this Court in a second appeal owing to which the question of going into whether there was a necessity for amendment of plaint, does not arise.
26.With regard to another access, i.e., said pathway, the law is well settled that the owner of a property is entitled to access from as many points as one has, is the plaintiffs' counsel say. In support of this submission, learned counsel for the plaintiffs pressed into service two Judgments. One is the Judgment in the Municipal Board, Manglaur v. Mahadeoji Maharaj reported in AIR 1965 Supreme Court 1147. Relevant paragraph is paragraph No.6 and the same reads as follows:
?6.The facts are not in dispute. There is a metalled road running through plot No.3211. On either side of the metalled road there is open space and on either side of the open space there is a drain. Admittedly, public have been using the road for decades. The Municipal Board has been maintaining the road and the drains. It is, therefore, reasonable to hold that the entire pathway between the two drains was dedicated to the public. It is a common feature of metalled roads in towns that open spaces are left on either side of them. The fact that the entire pathway is not metalled cannot possibly detract from the totality of the dedication. The circumstance that the vacant spaces are on either side of the metalled road and between the two drains maintained by the Municipal Board leads to an irresistible inference that the strips of vacant spaces form part of the public pathway. The fact that only a part of the pathway is metalled does not necessarily limit the width of the pathway, but it is evidence of the user of the pathway by the public and its maintenance by the Municipality. We, therefore, hold that the suit site is part of the public pathway?.
27.The second Judgment pressed into service is Bharathamatha Desiya Sangam, Madhavaram and another v. Roja Sundaram and others reported in AIR 1987 Madras 183 and the relevant paragraph is paragraph No.8, which reads as follows:
?8.The next question that arises is, whether the availability of space between the offending constructions would justify the refusal of relief to the first respondent, as was done by the trial Court. It has to be remembered that the first respondent is running a flour-mill. It is true that to the west of the first respondent's, flour-mill, there is the Bazar Street. But even so, it is not for the appellants to say that access could be had to the mill of the first respondent through the Bazaar Street, and, therefore-access to Sundara Vinayakar Koil Street on the north of A D is not necessary for the first respondent. When the first respondent undoubtedly has a right as established by a long series of decisions referred to earlier, it follows that the first respondent can insist upon his right of access from every point along A D line to Sundara Vinayakar Koil Street on the north. The first respondent is running a flour-mill and that is not disputed. In connection with the running of his flour-mill, it would be necessary for the first respondent to bring in carts as well as lorries. The available space between the offending constructions certainly is not sufficient to enable the lorries or even the carts to be brought into the flour-mill premises. Therefore, the availability of some space between the offending constructions cannot be put against the first respondent as a ground for declining to grant him the relief, especially when he had established his right to that relief. It has also to be remembered that when the first respondent has a right of access as against the owner of the road margin, namely, the Panchayat or even the State and that right can be enforced as against either the Panchayat or the State with reference to the constructions which may be put up by them in the road margin as owners by asking for a removal of the offending constructions, the appellants cannot be heard to say that despite the obstructions, still access can be had through small intervening narrow strips and, therefore, no case for the removal of the offending constructions is made out. It would be pertinent in this connection to refer to the decision of the Supreme Court in Mangalur Municipality v. Mahadeoji, AIR 196 SC 1147. While considering the right of the Municipality to erect a statue and also to put up two rooms on a vacant site lying in between two Nalis and a road which ran through a plot belonging to a private owner, the Supreme Court pointed out that the Municipatity cannot put up any structures on the public pathway, which are not necessary for the maintenance or user of it as a pathway and that the installation of it statue or the putting up of other constructions cannot be said to be necessary for the maintenance or user of the road as a public highway and such acts would be unauthorised acts of Municipality. It was also laid down that the owner of the property adjoining the public pathway was entitled to ask for an injunction restraining the Municipality from acting in excess of its rights. Therefore, if the owner, namely, the Panchayat or the State can be prevented from putting up any construction affecting access and can be directed to remove the offending constructions already put up, it follows that the appellants, who have put up the constructions and who are not even the owners of the site over which the structures have been put up, cannot say that there is still some kind of access available despite the offending constructions and, therefore, no case for removal of the superstructures is made out. The lower appellate Court was, therefore quite right in directing the removal of the superstructures?.
28.Reverting to the plea of plaintiffs not taking out an amendment application, it is to be pointed that the plaintiffs' counsel pressed into service two Judgments, one being Arthur Thodore James (deceased) and 2 others v. Mrs.Hanna Rosaline and 4 others reported in 1999-1-LW-222 and Angammal and 2 others v. Komara Gounder and 2 others reported in 2002(1) CTC 472. Both these Judgments were for the principle, 'the Court can mould the relief'. Suffice to extract a portion of the Judgment in Komara Gounder's case, which reads as follows:
?The material facts and circumstances had undergone a substantial change subsequent to the filing of the original petition and it was in consequence thereof that it had become unnecessary for the petitioner to pursue his original prayer for the grant of a larger relief?.
29.To be noted, the aforesaid extract is an extract of the Supreme Court's ruling in B.R.Ramabhadria v. Secy., F.&A. Deptt., AP, reported in AIR 1981 SC 1653, which has been relied on in Komara Gounder's case. This completely douses the amendment application plea.
30.This now takes us to the aforesaid three substantial questions of law, on which the second appeal was admitted.
31.To be noted, in the cross objection, the cross objector, said municipality, has proposed as many as seven questions styling them as substantial questions of law and they are as follows:
?a.Are the Courts below right in granting easement right in schedule B property, when the prescribed period of easement for 30 years has not been proved?
b.Are the Courts right in granting easement right when the dispute site is not a road or pathway but drainage covered with slabs, beyond the drainage it is Anna Bus Terminus?
c.Are the Courts below right in granting access to B schedule property when there is no highway or pathway to which the B schedule property connects, but connects Anna Bus Terminus?
d.Are the Courts below right in granting access to B schedule property, since wall has been erected in order to disconnect the A schedule property in order to avoid accidents.
e.Are the Courts below right in granting access to the B schedule property when the plaintiffs have right to access from Cape Road?
f.Are the Courts below correct in granting access to the B schedule property when the A schedule property has been put up without any plan approval, wherein if submitted for approval, the right to access to B schedule property would be denied at the time of approval itself?
g.Are the Courts below correct in granting access to the B schedule property, when a strip of land intervenes, however narrow it may be, belonging to another and not subject to the public right of passage intervenes as held in K.Sudarsan and others and Commissioner, Corporation of Madras and others reported in AIR 1984 Madras 292?.
32.In the light of the earlier Judgment of this Court, dated 22.10.2010, made in S.A(MD)No.755 of 2010, with regard to same 'B' schedule pathway [to be noted, the Judgment in its entirety has been extracted supra], it would not be open to another learned Single Judge to re-examine a decree made by this Court by another learned Single Judge with regard to the same pathway. To be noted, doctrine of merger operates, as now there is a decree made by another learned Single Judge of this Court. From the narrative supra, it will be clear that there is no reason whatsoever for this Court to disagree with the aforesaid Judgment of the other learned Single Judge.
33.Under such circumstances, the age old adage 'what is sauce for the goose is sauce for gander too', will apply and operate, as after all there is no dispute or disagreement between the parties to lis before this Court that the earlier Judgment pertains to the same 'B' schedule pathway and the respondent therein is the owner of the adjacent property adjacent to the plaintiffs' 'A' schedule property. However, as this instant second appeal has been admitted on three substantial questions of law, which have been extracted supra, it becomes necessary to answer the same. All the three substantial questions of law pertain to the injunction limb of the prayer being prayer limb 'B' in the plaint, which has been extracted supra. A perusal of the Judgment made by this Court in the other second appeal will reveal that a direction to remove the wall put up by the said municipality to the extent of 11 feet has not been dislodged. As regards, the declaratory relief with regard to the access, this Court has held that 4 feet is sufficient to have easy access to 'A' schedule property.
34.This answers all the three substantial questions of law, which warrants both the second appeal and the cross objection to be partly allowed, so that the parties in the instant second appeal are also governed by the same Judgment and decree made in the other second appeal.
35.In the light of the narrative and discussion supra, plaintiffs herein will also be entitled to 4 feet in the 'B' schedule pathway. In other words, both the second appeal and cross objection are partly allowed, wherein and whereby the parties herein will be governed by the Judgment and decree, dated 22.10.2010 made in S.A(MD)No.755 of 2010 by this Court. No costs.
To
1.The Principal Sub Court, Nagercoil.
2.The Principal District Munsif Court, Nagercoil.
3.The Record Keeper, V.R.Section, Madurai Bench of Madras High Court, Madurai.
.