Madras High Court
A.Sathya vs K.Selvaraj (Died) on 20 December, 2024
2025:MHC:4270
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20.12.2024
CORAM:
THE HONOURABLE MS.JUSTICE R.N.MANJULA
S.A.No.561 of 2012 and
M.P.No.1 of 2012
A.Sathya
... Appellant / Defendant
Vs.
1.K.Selvaraj (died)
2.Karuppathal
3.Suseela
4.Madhuvanthi
5.Abishek Kumar
(respondents 2 to 5 brought on record as LRs of the deceased sole
respondent viz., K.Selvaraj vide order dated 04.02.2022 in CMP.Nos.6120,
6121 and 6122 of 2018)
... Respondents / LRs of Plaintiff
Prayer: Second Appeal is filed under Section 100 of the Code of Civil
Procedure, to set aside the judgment and decree dated 28.02.2012 made in
A.S.No.41 of 2011 on the file of the Principal Sub Court, Erode, reversing
the judgment and decree dated 15.03.2011 made in O.S.No.90 of 2008 on
the file of the District Munsif-cum-Judicial Magistrate Court, Kodumudi.
For Appellant : Mr.N.Manokaran
For Respondents : Ms.P.Vidhyashree for
M/s.P.T.Ramadevi
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JUDGMENT
This Second Appeal has been filed to set aside the judgment and
decree dated 28.02.2012 made in A.S.No.41 of 2011 on the file of the
Principal Sub Court, Erode, reversing the judgment and decree dated
15.03.2011 made in O.S.No.90 of 2008 on the file of the District Munsif-
cum-Judicial Magistrate Court, Kodumudi.
2. Heard Mr.N.Manokaran, learned counsel for the appellant and
Ms.P.Vidhyashree, learned counsel for the respondents and perused the
materials available on record.
3. The defendant is the appellant against whom the plaintiff has filed
a suit for mandatory and permanent injunction. The Trial Court has
dismissed the suit. In the First Appeal preferred by the plaintiff, the First
Appellate Court has allowed the First Appeal by reversing the judgment and
decree of the Trial Court and thereby decreed the suit. Aggrieve over that,
the defendant has filed this Second Appeal.
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4. The short facts pleaded in the plaint are as follows:
The suit property was purchased by the plaintiff on 12.06.2002 from
one Kanagasabapathy which measures 4020 Sq.ft and it is a vacant site
situated on the eastern side of north-south Railway Station Road. There is a
12 feet width north-south pathway situated on the eastern side of the ' A'
schedule. In order to connect 12 feet pathway to Railway Station Road,
there is a 14 feet width common pathway. 14 feet width common pathway is
a path leading to 12 feet width pathway and 12 feet pathway is described
under 'B' schedule of the suit property. The plaintiff and his predecessor in
title had been enjoying the suit 'A' schedule pathway without any
disturbance. The defendant's property is adjacent to the plaintiff's property.
From the suit pathway to the middle of the defendant's property, there is a 4
feet pathway which would lead to the plaintiff's house. On the eastern side
of the 'B' schedule pathway, there is a marriage hall belonging to the
defendant. The pathway has been enjoyed by the plaintiff and others.
4.1. On 31.05.2008 when the plaintiff was not in station, the
defendant had encroached 100 feet on the eastern side of the suit property
and put a gate and closed the 'B' schedule pathway. The defendant has got
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no right to close the pathway. Despite she was asked to remove the gate, she
did not heed. The defendant has been causing hindrance by putting a
generator and electrical lights in the pathway. The defendant had also filed a
suit in O.S.No.79 of 2008 by claiming illegal rights. Hence, the plaintiff has
filed this suit for mandatory injunction to remove the gate and restore the
pathway to its original position and permanent injunction against the
defendant to restrain them from preventing the plaintiff to use the pathway.
5. The averments made in the written statement filed by the
defendant are as follows:
The allegation that there is a pathway of 12 feet width in existence as
described in 'B' schedule is not true. It is true that the defendant's property is
adjacent to the plaintiff's property. It is false to state that there is a pathway
running in the middle of the defendant's property touching the suit pathway
and reaching up to the plaintiff's house. The defendant's marriage hall is
situated on the eastern side of the 'B' schedule pathway. On 29.01.1997, the
defendant purchased the property on the eastern side of the pathway and
thereafter, she erected the marriage hall and house. In the year 1998, with
the consent of the plaintiff's vendor and all other co-owners of schedule 'A'
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and 'B' of the suit schedule properties, the defendant has erected a
compound wall on the northern side of the pathway and fixed a gate on the
eastern side. The plaintiff has purchased the suit property after the gate was
erected and he has got the knowledge about the same and he did not
question it at the time of purchase. Hence, mandatory injunction as claimed
by the plaintiff cannot be granted.
6. During the course of the trial, on the side of the plaintiff, P.W.1
and P.W.2 have been examined and Exs.A1 and A2 were marked. On the
side of the defendant, D.W.1 and D.W.2 have been examined and Exs.B1 to
B6 were marked.
7. At the conclusion of the trial and considering the evidence on
record, the Trial Court has dismissed the suit and the First Appeal preferred
by the plaintiff was allowed by reversing the judgment and decree of the
Trial Court and decreed the suit. Hence, the defendant has filed this Second
Appeal by raising the following substantial questions of law:
"1.Whether in law the First Appellate Court was right
in decreeing the suit without considering the question of
barring of limitation to file the suit?
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2. Whether the First Appellate Court is right in law to
declare the suit for mandatory injunction unmindful of the
fact that all the interested parties are not impleaded as
parties to the suit?”
8. The learned counsel for the appellant / defendant submitted that the
deceased plaintiff has purchased the suit property after four years of the
construction of Marriage Hall by the appellant / defendant. The gate was
erected in the year 1998 itself and hence, the suit is barred by limitation.
The respondents / legal heirs of the deceased plaintiff have got their access
directly from the Railway Station Road as per their sale deed. Hence, using
the 12 feet pathway at the backside of his house will not arise. The appellant
has already filed a suit in O.S.No.79 of 2008 for permanent injunction in
respect of 'B' schedule pathway and the same was decreed on 26.02.2010.
The judgment and decree passed in O.S.No.79 of 2008 were marked as
Exs.B4 and B5 and the same has not been challenged by the respondents.
9. The learned counsel for the respondents submitted that the pathway
is very much a public pathway. The appellant cannot claim any exclusive
right over the public pathway. The appellant has erected a gate in the public
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pathway and that was preventing the respondents' right to access the other
pathway which is available in the backside of their house. Since the
violation is continuous, there is no bar for filing the suit. Hence, the suit is
not barred by limitation.
10. There is no dispute as to the location of the suit pathways which
are described under 'A' and 'B' schedule of the suit. Even though the
existence of the pathways are not denied, the dispute is with regard to the
erection of gate and iron pillars at the point where 'A' and 'B' where the
pathways meet. So far as 'A' schedule pathway is concerned, there is no
dispute. The parties do not deny the existence of 'B' schedule pathway. But
the appellant denies the usage of the pathway by the respondents. The suit
'B' schedule pathway is situated on the backside of the respondents' property
and its frontage is facing 'A' schedule pathway. The 'A' schedule pathway is
running north to south and then turns east and meets the 'B' schedule
pathway and thereafter runs north to south behind the respondents' house.
11. The front portion of the respondents' house is facing west
direction and hence 'B' schedule pathway runs on the eastern side of the
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house. The appellant has got her marriage hall situated on the eastern side of
the pathway which is adjacent to the meeting point of 'A' and 'B' schedule
pathways. The said fact was also not denied by the parties.
12. It is submitted by the learned counsel for the appellant that the
appellant has erected the gate at the meeting point of 'A' and 'B' schedule
pathways even when the respondents' predecessor in title were in possession
of the respondents' property. It is submitted that the appellant has erected
the gate as early as in the year 1998 and the deceased plaintiff had
purchased the property in the year 2002. These facts were also not denied by
the parties. However, the appellant claims that the suit gate has been fixed
by her with the consent of the deceased plaintiff's predecessor in title.
13. Suit 'A' and 'B' schedules are no doubt public pathways. Anyone
who obstructs the public pathway by constructing any structure cannot seek
shelter by stating that he had obtained the consent of the users of the
pathway. The public pathways are meant for the use of public and hence, no
individual user can have any right to give permission to any third party to
put up any structure by obstructing the pathway. In other words, the public
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pathway cannot be treated as anyone's personal property in order to give
consent for any activities in the form of erection of structures to be made
therein.
14. The categorical contention of the appellant is that the respondents
does not have any right of access in 'B' schedule pathway because they have
access in 'A' schedule pathway, as their house is facing the said pathway.
Since 'B' schedule pathway is a public pathway for the houses which situate
on its either side, the occupants will naturally have the right to access in the
said pathway, irrespective of the fact whether they have other access to their
house or not. The character of the pathway as the public pathway itself is
sufficient to show that every public who has their houses on either side of
the pathway got the right of usage and the restrictions if any for the usage
can be only be made by the Local Administration and that too, for any
specific and acceptable reason.
15. Apart from the respondents, there are other parties whose houses
are also situated abutting 'A' and 'B' schedule pathways. If at all the
appellant or any other individual owner who has their interest in closing the
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point where 'A' and 'B' schedule pathways meet, such step can be taken only
with the indulgence of the Local Administration and not by themselves. By
constructing a gate at the meeting point of 'A' and 'B' schedule pathways, the
public property is assigned with the character of private property which
cannot be encouraged.
16. Now, the only point on which the appellant stresses her claim is
that she has constructed a gate as early as in the year 1998 and the deceased
plaintiff who is a subsequent purchaser in the year 2002 has filed a suit in
the year 2008 and it is barred by limitation. The First Appellate Court has
given a constructive interpretation for limitation by observing that there is a
continuing violation so long as the gate is in existence by obstructing the
public pathway. So it is held that there is a continuing cause of action and
hence the suit is not barred by limitation.
17. Reliance was placed by the learned counsel for the appellant to
the judgment of this Court held in the case of R.Kumar Vs.
G.Jaganmoorthy (S.A.No.674 of 2015) in support of his contention that
once a structure is erected and completed, the limitation will start running
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from the date on which the construction has been completed and hence, any
aggrieved person ought to have filed a suit within three years of limitation
and thereafter, the suit will be barred by limitation. The learned Single
Judge who rendered the above judgment has relied on the judgment of the
Delhi High Court in the case of Faqir Chand Vs. Lila Ram, reported in
AIR 1994 Delhi 161, wherein, it is held that "the plaintiff who had admitted
the testimony of existence of tin-shed for more than three years prior to the
filing of the suit, cannot run away from limitation".
18. But in the above judgment, it is seen that the Local
Administration is not a party against whom a party has to set up his
completed obstruction and get its transformed as a right in view of lapse of
the period of limitation. Hence, I am not inclined to rely on the above
judgment for the purpose of this case.
19. So long as the violation is being done in a public pathway, in
whatsoever manner, it continues to be a violation, so long as the property
continues to be a public property. Once the character of the public property
is lost and it gets converted into a private right either by way of prescription
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or by purchase, then only in my view it can be stated that the cause of action
ceased to exist.
20. In the instant case, even the Local Administration itself cannot
have the right to cause obstruction to the public pathway because the very
purpose of leaving the public pathway itself is for public convenience. Just
because anyone or few or even all the users of the public pathway remain
indifferent, it cannot be inferred that the party who had violated by causing
obstruction had acquired his entitlement in view of the expiry of the period
of limitation. Even if the deceased plaintiff's predecessor in title might have
been a silent watcher or consenting party for obstructing the public
pathway, but that alone cannot take away the plaintiff's right to use the
public pathway.
21. As per Section 2(2) of the Tamil Nadu Land Encroachment Act,
1905, "all public roads and streets vested in any local authority shall be
deemed to be the property of the Government". So, no one is entitled to
encroach the above Government property by putting up their own
constructions or structures as per their whims. Even if such structures are in
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existence and enjoyed by the individual for years together, that will not
confer any right on them. In this regard, it is appropriate to cite the
judgment of the Division Bench of this Court held in the case of
T.K.Shanmugam, Chennai Vs. State of Tamil Nadu, wherein, it is held
that even if it is assumed that some individuals have been in possession of
Government property for a considerable period, that would not confer any
right on them simple because they are encroachers. Hence, the public
property has to be protected as how it has been allowed to be kept for the
usage of the public.
22. As stated already, the right over the public pathway is conferred
on the users not by any private individuals and hence, the right cannot be
allowed to get extinguished at the hands of private parties. So long as the
location where the gate has been constructed remains a public property, it is
a continuing violation giving raise to continuing cause of action. If three
years time from the date of obstruction is taken as the maximum time to get
it confirmed as a right, then every individual who causes obstructions to the
public pathway would claim entitlement against Local Administration also
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by stating that the Administration has been kept quite for three years
without initiating any action to remove such obstruction or encroachment.
23. In the instant case, the gate put up by the appellant is a clear
encroachment. In fact, the appellant herself has filed a suit against the
deceased plaintiff in O.S.No.79 of 2008, alleging that the deceased plaintiff
had put up a car shed in the 'B' schedule property and he should be injuncted
from doing so. What the appellant expects from the deceased plaintiff would
be equally expected from him also by the deceased plaintiff and the other
users of the 'B' schedule pathway. So, I am not convinced with the
arguments of the learned counsel for the appellant that the suit is barred by
limitation in view of lapse of three years from the date of erecting a gate in
the public pathway by the appellant. Thus, the substantial question of law
No.1 is answered against the appellant.
24. So far the respondents are concerned, they are affected due to the
fact that they were prevented from using the 'B' schedule pathway, despite it
is a public pathway. Just because the other users are not allowed or intended
to join with the deceased plaintiff to file a suit, the deceased plaintiff cannot
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be expected to implead all of them in his suit filed against the defendant. In
other words, the suit filed by the deceased plaintiff by impleading the
defendant alone as a party can be effectively disposed in respect of the
issues raised in the case. It is not the situation that the issue that has arisen
in this case can be dealt or disposed only in the presence of the other users
of the pathway. Hence, the plea that the suit is bad for non-joinder of parties
will not arise. Thus, the second substantial question of law is also
answered against the appellant.
25. As stated already, the appellant / defendant is expected to follow
some discipline which she expects from the deceased plaintiff in allowing
the public pathway to be used by all the users. It is upto the public to make
appropriate representation to the Local Administration either to have it or
close it and it is for the Local Administration to take a call on this and not
the private parties. The individuals cannot assume right upon the public
pathways and put up constructions by obstructing the pathways at any of its
point by erecting any structures including the fixing of gate. The First
Appellate Court has rightly dealt the issue and chosen to decree the suit on
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the basis of the right reasoning and proper appreciation of the materials on
record. Hence, I do not find any grounds for interference.
26. Hence, this Second Appeal is dismissed. The judgment and decree
dated 28.02.2012 made in A.S.No.41 of 2011 on the file of the Principal
Sub Court, Erode is confirmed. The appellant / defendant is directed to
remove the gate in the suit pathway within a period of one month from the
date of receipt of a copy of this judgment and decree. No costs.
Consequently, connected miscellaneous petition is closed.
20.12.2024
Speaking order
Index : Yes
Neutral Citation : Yes
gsk
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To
1.The Principal Sub Court,
Erode.
2.The District Munsif-cum-Judicial Magistrate Court,
Kodumudi.
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R.N.MANJULA, J.
gsk S.A.No.561 of 2012 and M.P.No.1 of 2012 20.12.2024 18/18 https://www.mhc.tn.gov.in/judis