Judgment : Second appeal is by the second defendant who got herself impleaded in O.S. No.98 of 1979, on the file of the Principal District Munsif s Court, Cuddalore. .2. The suit filed by the plaintiff, first respondent herein, was against the Cuddalore Municipality represented by its Commissioner. It was a suit for mandatory injunction to direct the Municipality to remove the obstruction caused by the appellant herein, by constructing a hut in front of the plaintiff s house. The allegation was that the construction caused obstruction to his access to the highway, and that the construction is in a poramboke 1and belonging to the Municipality. It was averred that the appellant is a trespasser, and that it was without permission of the Municipality, she has constructed the hut. Even though various demands were made to the Municipality to remove the hut, the Municipality did not take any action. Hence the suit was filed by the plaintiff, seeking a mandatory injunction to take steps to remove the unauthorised construction. 3. In the written statement filed by the Municipality, it is said that they have issued notice to the encroach-ers under Sec. 182 of the Tamil Nadu Municipalities Act on 23. 1978 and subsequently on 3. 1979. Since necessary steps have been taken, there is no need for mandatory injunction and the suit as such is not maintainable. 4. In the written statement filed by her, the second defendant has stated that she and her husband were in occupation of the hut in question for years together, and they have been paying tax to the Municipality. The allegation that the hut is in a poramboke land, is denied. According to her, she and her husband have been in possession and enjoyment of the suit property for more than the statutory period and have prescribed title by adverse possession. She has further stated that when her husband constructed the hut, the plaintiff did not raise any objection and, therefore, he is estopped from contending that the construction is objectionable. .5. She has further stated that when her husband constructed the hut, the plaintiff did not raise any objection and, therefore, he is estopped from contending that the construction is objectionable. .5. The trial court, after trial, came to the conclusion that the land in front of the plaintiff’ s house is a poramboke land, that the contentions of the second defendant that herself and her husband were in possession of the hut long before the institution of the suit and the claim of adverse possession are all incorrect, and ultimately the trial court granted a mandatory injunction against the first defendant-Municipality, and dismissed the suit as against the second defendant. Even though the suit as against the second defendant was dismissed, she preferred an appeal as A.S. No.91 of 1982, on the file of the Principal Subordinate Judge’s Court, Cuddalore. The maintainability of the appeal was challenged before the lower appellate court. It came to the conclusion that ultimately the second defendant was the person aggrieved by virtue of the decree granted by the trial court and, therefore, the appeal was maintainable. On facts, the lower appellate court came to the conclusion that the hut was unauthorisedly constructed, that the land over which the hut in question was constructed, is a poramboke land, and that was the only access for the plaintiff to reach his building, and that the municipality (first defendant) has not done its statutory duty in evicting the appellant herein from the hut. The lower appellate court held that apart from issuing notice, the municipality had not taken any timely steps to evict the encroacher. Regarding the locus standi of the plaintiff to institute the suit, the lower appellate court came to the conclusion that being a pathway or road, any pedestrian, if his right of access is obstructed, has got the right to question the obstruction, and in that way, the plaintiff whose right of access was affected, had the locus standi to file the suit. In this view of the matter, the appeal was dismissed with costs. It is against the concurrent judgments of the courts below, the second defendant has preferred this second appeal. 6. In this view of the matter, the appeal was dismissed with costs. It is against the concurrent judgments of the courts below, the second defendant has preferred this second appeal. 6. The following substantial questions of law have been framed at the time of admission of the second appeal: "(1) Whether the suit for mandatory injunction is maintainable in respect of poramboke site which is admittedly not in the possession of the plaintiff. .(2) Whether the courts below before granting the relief of mandatory injunction, should not have determined whether there is exclusive prima facie title in the plaintiff. .(3) Whether the person in possession can be evicted by a person without title to the property. .(4) Whether the decree for mandatory injunction against the 2nd respondent is executable against the appellant when the suit has been dismissed as against the appellant, and .(5) Whether the plaintiff has the right to file the suit when the Municipality is the owner of the site." 7. All these substantial questions of law can be considered together, for, the same are inter-connected. 8. In Salmond & Heuston on The Law of Torts -Twentieth Edition (1993) - at page 86, the learned authors have stated the right of a person who occupies a property immediately adjoining a highway, thus: "Every person who occupies land immediately adjoining a highway has a private right of access to the highway from his land and vice versa; and any act done without lawful justification whereby the exercise of this private right is obstructed is an actionable wrong. This right of access is a private right of property, and if what is complained of is sufficiently substantial to constitute an interference with that right, he may recover at least nominal damages, for it is an example of an action on the case succeeding without proof of special damage. This right may indirectly protect the owner’s interest in a view from or to his land, interference with which is not otherwise actionable. Interference with a window display may be actionable if it deprives the plaintiff of his own right of access to that window. At common law a frontager had the right of entrance and exist from his land on to a highway at any point. Interference with a window display may be actionable if it deprives the plaintiff of his own right of access to that window. At common law a frontager had the right of entrance and exist from his land on to a highway at any point. But this common law right does not mean that the landowner can require that the highway should be in a condition or state, along his whole frontage, most convenient for the exercise of the right......." 9. In ‘Law of Tort’ by B.M. Gandhi - 1987 Edition, at page 793, the learned author says thus: "...every citizen having a house abutting on or adjoining a public thoroughfare has the legal right to make a legitimate and reasonable user of the thoroughfare along its length and breadth for himself, his cattle or his conveyance leading from his door to any part of the highway. But the use of it should not be inconsistent with the rights of other persons using the pathway for themselves for the purpose of traffic. This right exists independently of prescription and is a sort of common law right. Thus if the width of the thoroughfare has been encroached upon by the defendant resulting in the plaintiff not being able to utilise the highway in the same manner as he used to do before and the plaintiff cannot turn his car round the road on account of this obstruction, a special damage has arisen to the plaintiff and the matter is actionable." 10. As early as in Bhagwan Das v. Town Mag., Budaun and others, A.I.R. 1929 All. 767, a learned Judge of the Allahabad High Court held thus: "Every citizen having a house abutting on or adjoining a public thoroughfare has the legal right to make a legitimate and reasonable user of the thoroughfare along its length and breadth for himself, his cattle or his conveyance leading from his door to any part of the highway. His right in this respect should be protected and enforced so long as it is not inconsistent with the rights of other persons using the pathway for themselves for purposes of traffic. This right exists independently of prescription and is a sort of common law right. His right in this respect should be protected and enforced so long as it is not inconsistent with the rights of other persons using the pathway for themselves for purposes of traffic. This right exists independently of prescription and is a sort of common law right. Thus if the width of the thoroughfare has been encroached upon by the defendant resulting in the plaintiff not being able to utilize the highway in the same manner as he used to do before and the plaintiff cannot turn his cart round the road on account of this obstruction a special damage has arisen to the plaintiff and the matter is actionable......." That was also a case where the defendant put up a temporary construction in a public thoroughfare, and on the date of suit, it was nearly two years old. The question that came for consideration was, being a suit for mandatory injunction, whether that could be granted to the plaintiff. Considering the law, the learned Judge said that the action is not belated. The causing of obstruction is a continuing wrong, and till it is removed, the cause of action survives. 11. In Johri Lal v. Dhani Ram, A.I.R. 1942 Lah. 28, it was held thus: "The right to use a public road is a common law right which every member of the public has. Municipal Committee cannot be allowed to take away this right at its pure discretion in the absence of statutory provisions leaving in very clear terms the private right of citizens entirely to the discretion of the Municipal Committee." 12. Our High Court had occasion to consider a similar question in Damodara Naidu and others v. Thirupurasundari Ammal and another, (1972)2 M.L.J. 4 . Following the passage in Mackenzie’s Law of Highways, Twenty-first Edition at page 58 wherein it was stated as follows: "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. 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 rights of the public to pass along the highway are subject to this right of access, just as the right of access is subject to the rights of the public, and must be exercised subject to the general obligations as to nuisance and the like imposed upon a person using the highway... 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." Learned Judge held in the said decision that any obstruction caused by a person is liable to be removed whether the obstruction does or does not constitute a public nuisance. It was held thus: “Thus it is seen 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 public nuisance.” 13. In Govind Asari v. The Kancheepuram Municipal Council, represented by its Commissioner, 94 L. W. 697, a learned Judge of this Court followed the same passage from ‘Prate and Mackenzie’s Law of Highways - 21st Edition, at page 58, and regarding the locus standi of a person to have the obstruction removed, it was further stated thus: “...It would be the height of absurdity to say that a private right is not interfered with, when a man who has been accustomed to enter his house from a highway finds his doorway made impassable, so that he no longer has access to his house from the public highway. This would equally be a private injury to him, whether the right of the public to pass and repass along the highway were or were not at the same time interfered with.” In that textbook, referring to the right of access to or from the highway as a private right, it is again observed thus: “...any interference with it is an interference with a private right; but the latter right is an individual interest in a public right and is enjoyed by the owners as one of public entitled to use the highway.” Again, it is observed that — “It is well established that where there is a public highway the owners of the land adjoining there to have a right to go upon the highway from any spot on their land... The right of access to a highway enjoyed as a private right by the owner of premises adjoining the highway is not limited to the right to pass from the premises to the highways and vice versa, but includes the right of access to a wall of the premises in which there is no door or other opening. But the premises must actually adjoin the highway;.... An owner of the land which runs right upto a public highway is entitled to access to that highway from his land and that is so whether he is the presumptive owner of the soil of the highway or not.... A highway authority has no power, in discharge of the duty of the surveyor of highways to repair, to raise the level of a highway so as to interfere with the adjoining owner’s right of access.” The learned Judge further held as follows: “The owners of houses abutting on a public street have right of access to and from the public street and if anything is done by the Municipality to interfere with the rights of such owners, the owners have an actionable claim.” 14. In this case, once the position of law has been declared, we have to consider whether the same applies to the facts of this case. The plaintiff’ s house faces the road and that it is the only access to the road is not a matter in dispute. The land over which me construction has been put up by the second defendant is admittedly on a municipal land where public have aright of user. The plaintiff’ s house faces the road and that it is the only access to the road is not a matter in dispute. The land over which me construction has been put up by the second defendant is admittedly on a municipal land where public have aright of user. It is evident that by such construction, the access to the plaintiff’ s house or property is also obstructed. Even though the second defendant’s case was that herself and her husband have been in occupation of the hut for long number of years, the concurring findings of the courts below is that they were residing else where and the construction was only recent. It is true that the plaintiff filed complaints before the first defendant- Municipality and he wanted the obstruction to be removed by them. It is the statutory duty of the first defendant to remove such obstructions. But, except for issuing a notice and passing a resolution, the first respondent (Municipality) has remained silent. The first respondent has not discharged the statutory duty enjoined upon them. It was under such circumstances, plaintiff was compelled to file the suit. 15. We find that as against the appellant, the suit was dismissed by the courts below. In spite of the same, the second defendant has preferred this appeal before this Court, stating that she is affected by the judgments of the courts below. According to me, the dismissal of the suit as against the second defendant, appellant herein, was not proper. The courts below should have given a direction to the appellant (second defendant) to remove the obstruction. Mandatory injunction should have been granted against her also. Though initially she was not a party to the suit, she got herself impleaded as second defendant in the suit and, therefore, the relief sought for in the plaint should have been granted against her also. In case she fails to do so, necessary decree should have been passed directing the first defendant to implement the notice and after giving some time, if they also did not comply with the direction, the plaintiff should have been given an executable decree. 16. In case she fails to do so, necessary decree should have been passed directing the first defendant to implement the notice and after giving some time, if they also did not comply with the direction, the plaintiff should have been given an executable decree. 16. Once the civil courts have found that the action of the appellant (second defendant) is pure trespass, and the same causes obstruction to the highway or access to the plaintiff’s property, naturally nothing remains to be done by the Municipality on the basis of the notice. After all notice is given only by way of affording reasonable opportunity to the second defendant to show cause why the obstruction should not be removed. When that opportunity has been given to her by civil courts, I feel it is better to modify the decree as follows: The second appeal is dismissed. No costs. The appellant and all persons claiming under her are directing to remove the construction put up by her in the pathway which causes obstruction, within two weeks from to-day. In case she fails to do so, the first defendant shall implement the notice already issued, and this decree can also be treated as a decree in favour of the Municipality (first defendant) to carry out the direction given above, on the expiry of the two weeks period granted to the appellant herein. The first defendant- Municipality is given one month’s time for this purpose, on the expiry of the two weeks given to the appellant. In case the first defendant-Municipality also does not implement this decree and remove the obstruction, the plaintiff is at liberty to execute the decree and remove the constructions and all obstructions in the way, and realise the costs incurred by him in that regard, from the appellant. In case the plaintiff is driven to the necessity of getting the obstruction removed by executing the decree and if any police aid is necessary for such purpose, he would be given necessary police assistance, without insisting on any fresh direction or order from court on separate application.