Gunabhooshanammal v. Santha and Another — 1999 DIGILAW 422 (MAD)

Judgment : E. Padmanabhan, J. 1. The first defendant in O.S.No. 104 of 1988 on the file of the Sub Court, Ami who had lost before the first appellate court is the appellant in this Second Appeal. This Second Appeal is directed against the judgment and decree of the learned District Judge, North Arcot dated 30.11.1992 made in A.S.No. 36 of 1992 in reversing the judgment and decree of the learned Subordinate Judge of Ami dated 33. 1992 made in O.S.No. 104 of 1988. 2. For convenience the parties shall be referred as arrayed before the trial court. 3. At the time of admission the following substantial question of law was framed by this Court. When the plaintiff as P.W.1 has admitted thus (Editor: The text of the vernacular matter has not been reproduced. required.) Whether the lower appellate court is right in having decreed the suit? 4. According to the plaintiff, the suit property originally belonged to Thillai Natarajan, husband of the first defendant, that the suit property was sold in court auction, that one Ismail was the court auction purchaser, that the said Ismail conveyed the same to Jayapal, that from Jayapal, the plaintiff purchased the suit property as vacant site, that adjacent to the suit vacant site there is a road and road poromboke, that the defendant put up a shed adjacent to plaintiffs vacant site measuring 36 feet east west and 30 feet north south, that the said shed obstructs the plaintiffs access to the public street, that the encroachment by the first defendant has to be removed, that the plaintiff moved the second defendant municipality to remove the encroachment, which is obstructing the plaintiff, and that the plaintiff had come before the court to remove the obstruction against the defendants. 5. 5. The first defendant filed a written statement contending that even before 15 years prior to the purchase by the plaintiff, the defendant had put up the shed and in enjoyment and the same was assigned Door No. 136-A, that what was purchased being door No. 137, that the plaintiff has no right in respect of the portion over which the first defendant had put up shed, that the space over which the first defendant had put up a shed is a road poromboke, that without impleading the Government no suit is maintainable against the defendants and therefore, the suit is bad for non-joinder of necessary parties. 6. Subsequently, the second defendant was impleaded and a separate written statement was filed. According to the second defendant, the suit property is a revenue poromboke and not highway road poromboke that second defendant has no control or connection with the suit property, that by the first defendants shed no prejudice has been caused to the plaintiff and so the second defendant had been impleaded unnecessarily. 7. The trial court framed six issues. Before the trial court, the plaintiff marked Exs.A-1 to A-31, while the defendants marked Exs.B-1 to B-33. The plaintiff examined P.Ws.1 to 4, while the first defendant examined D.Ws.1 to 3. 8. On a consideration of oral and documentary evidence, the trial court found that the first defendant had put up a shed on poromboke, that even before the purchase by the plaintiff and his predecessors the shed existed, that with the knowledge of the shed, the plaintiff had purchased the property, that the plaintiff cannot raise any issue with respect to the poromboke in the occupation of the first defendant and that the present suit has been filed by the plaintiff with the object of removing the occupation of the first defendant and encroaching the same. In the light of the said findings, the trial court dismissed the suit. 9. Being aggrieved, the plaintiff preferred A.S.No. 36 of 1992 on the file of the District Court, North Arcot. The first appellate court framed the following two points for consideration. 1. Whether the plaintiff is aggrieved or object to the first defendant putting up shed on the poromboke land? 2. Whether the plaintiff is entitled to any relief? 10. 9. Being aggrieved, the plaintiff preferred A.S.No. 36 of 1992 on the file of the District Court, North Arcot. The first appellate court framed the following two points for consideration. 1. Whether the plaintiff is aggrieved or object to the first defendant putting up shed on the poromboke land? 2. Whether the plaintiff is entitled to any relief? 10. The first appellate court has rightly proceeded on the basis that the suit property, where the first defendant had put up the shed or construction is not the property which has been purchased by the plaintiff under Exs.A-1. It is the finding of the first appellate court that what was sold and purchased in court auction under Ex.A-11, dated 8. 1979 and what was subsequently purchased by the plaintiff under Ex.A-1 is a different and distinct property than what the plaintiff had sought to remove by the relief of mandatory injunction in the suit. What was prayed in the suit is to direct the first defendant to remove the hut put up by the first defendant in front of the plaintiffs house of the size 30 feet x 36 feet. 11. The first appellate court rightly found what was purchased by the plaintiff under Ex.A-1 is 51 feet east west by 45.2 feet north south in T.S.No. 84 Block No. B-5 Suriyakulam West Street, south of the house of Annamalai Mudaliar, north of Arunachala Nayanar. In the suit the plaintiff had not prayed for any relief in respect of the portion purchased by her under Ex.A-1. There is no controversy with respect to the property purchased by her under Ex.A-1. 12. The first appellate court had granted the relief of mandatory injunction directing the first defendant to remove the shed put up by her as according to the plaintiff, the shed obstructs the plaintiffs view as well as disables the plaintiff from entering his property from any portion of the public street. 13. The first appellate court also rendered a definite finding that in respect of the space 30 feet x 36 feet in the occupation of the first defendant by putting up a shed is not only different and distinct from what has been purchased by the plaintiff but her occupation is long prior to the purchase either under Ex.A-1 or A-11 as the case may be. .14. .14. The first defendant claimed that she is in occupation of the property for more than 15 years and she is living there with her husband after removing the shed put up by her in the space that was old in the court auction, namely Ex.A-11 which is conveyed in favour of the plaintiff under Ex.A-1. The first defendant continues that she cannot be dispossessed as she has been in enjoyment of the shed and the space in her own right nd the said occupation in no way interfere with the plaintiffs right, that plaintiff has got access from the public street to reach her property and that the plaintiff has no right to remove the defendants occupation in the revenue poromboke. 15. The learned first appellate court proceeded on the assumption that the first defendants occupation on the intervening space between the plaintiffs house and the public street has to be removed as the plaintiff has got every right to reach her property from every point of the public street. 16. Per contra, the first defendant contended that when there is an intervening space between the plaintiffs house and the public street, be it a revenue poromboke or any other poromboke, the plaintiff has no right to insist that she should have the right to have access from every point of the public street across the revenue poromboke land, which is in occupation of the first defendant. 17. The intervening space between the public , street and the plaintiffs property is of the size 30 feet x 36 feet and it is not as if it is few feets of width. It is admitted that the intervening space to the plaintiffs house and the public street is substantial in size and it is not as if the plaintiffs house abuts the main road or public street so that she could claim access from every point of the public street to her property. The first appellate court also found that the shed put up by the first defendant is in existence even before the court auction sale and it is located on a different survey number and it has been assigned different door number as well. 18. The first appellate court also found that the shed put up by the first defendant is in existence even before the court auction sale and it is located on a different survey number and it has been assigned different door number as well. 18. It is to be pointed out that it is not the case of the plaintiff that the first defendant has encroached any portion of her property purchased under Ex.A-1 or that she had prayed for recovery of any portion of the property purchased under Ex.A-1. In the absence of such a plea, it cannot be contended that there is a diminution in the property purchased by the plaintiff under Ex.A-1. No such case has been pleaded in the plaint nor such a case has been put forth at the stage of evidence as well. .19. The first appellate court also found that even before the purchase by the plaintiff, the first defendant had put up the shed and in occupation of the revenue poromboke in question. It is not being disputed at the bar nor any challenge has been made to the said finding. It is further admitted that the first defendant is an encroacher on a revenue poromboke for quite some time and at any rate long prior to the purchase under Ex.A-1 by the plaintiff as well as Ex.A-11 court auction sale of the first defendants property. 20. It is also admitted that the space occupied or encroached upon by the first defendant is the intervening space between the public street and the plaintiffs property. It is fairly stated that there is sufficient approach for the plaintiffs property from the public street and it is not as if the approach to the plaintiffs property has been blocked or obstructed totally. In fact, the plaintiff had purchased under Ex.A-1 a space measuring 51 feet and 42.5 feet. 21. It is even admitted by P.W.1 that there is sufficient space, which has direct access from the public street and that only in respect of the remaining space, the first defendant had put up the construction or shed and what is complained of being the plaintiffs house is not visible from the public street predominantly. There is 15.5 feet of space after leaving the space occupied by the first defendant and 15.5 feet is more than sufficient for someone to reach his property. 22. There is 15.5 feet of space after leaving the space occupied by the first defendant and 15.5 feet is more than sufficient for someone to reach his property. 22. On the above findings, the first appellate court proceeded as if the first defendant has no right to occupy the space and that plaintiff has got the right to remove the shed put up by the first defendant. This Court is unable to sustain the view taken by the first appellate court. The trial court had rightly held that the first defendant is in independent occupation of the shed which is not being owned by Revenue or municipal or by any other authority and as such the occupation had been there for more than 15 years on the date of filing of the suit. It was also found that there is no obstruction or inconvenience to the general public. Even according to the second defendant what was occupied by the first defendant is only a revenue poromboke. .23. The learned Counsel for the plaintiff placed reliance on the decisions of this Court in Kullammal v. Perumal and Bharathamatha Desiya Sangam v. Raja Sundaram and Ors. (1987) 1 M.L.J. 409 , in support of his contention that the defendant has no right to occupy any portion of the revenue poramboke as the plaintiff as a owner of the property is entitled to have access to her property from all points on the boundary of her property and if any obstruction is caused, it could be removed. There is no dispute with the legal proposition laid down by Ratnam, J in (1987) 1 M.L.J. 409 as well as S.S. Subramani, J in . 24. Subramani, J in Kullammal v. Perumal , held thus: 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 Law of High way-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 door way 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 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 survey or of highways to repair, to raise the level of a highway sp as to interfere with the adjoining owners 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. 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 plaintiffs house faces the road and that it is the only access to the road is not a matter in dispute. The land over which the construction has been put up by the second defendant is admittedly on a municipal land where public have a right of user. The plaintiffs house faces the road and that it is the only access to the road is not a matter in dispute. The land over which the construction has been put up by the second defendant is admittedly on a municipal land where public have a right of user. It is evident that by such construction, the access to the plaintiffs house or property is also obstructed. Even though the second defendants 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. 25. In the said case, the learned Judge found that the plaintiffs property is adjacent to the public street or municipal street and therefore, the plaintiff in that case is entitled to remove the obstruction as the plaintiff has got every right to reach her property from any point from the public street and that the municipality has to remove the obstruction, if any, put up on the municipal street on road margin. 26. In the present case, it is not as if the plaintiffs property abuts the public street, but there is an intervening space which is more than 30 feet and therefore, the plaintiff cannot claim she has got a right to use the entire space of 30 feet x 36 feet, which is the revenue poramboke and it is not as if the property forms part of the road margin or road poramboke. The intervening space between the road margin and the plaintiffs property is a poramboke, which is in the occupation of the first defendant for over a statutory period and therefore, the plaintiff cannot insist that the defendant has to remove the construction put up by her in the intervening space, as if she is entitled to use the entire intervening space. If such a contention, is accepted the plaintiff will be entitled to encroach upon the revenue poramboke and the possessory right of the first defendant to be in occupation is sought to be intervened indirectly. .27. Per contra, Mr. M.N. Padamanabhan, learned senior counsel relied upon the decision in S. Palanivelu v. K. Veradammal and contended that the encroachment by the first defendant of the Revenue poramboke is long prior to the acquisition of title by the plaintiff and even prior to the purchase, the first defendant had put up the permanent shed and in enjoyment of the same and therefore, the plaintiff has no right. Further it was emphasised that the first defendants construction had not been objected to at any point of time for over 15 years even on the date of filing of the suit. The learned Counsel relied upon the following passage: .In the present case also, as already stated the respondent has not done anything when the appellant was putting up a portion of his main building on a portion of the trespassed property and sinking a major portion of the well and doing either acts on the trespassed property. The appellant could not have done these things in a hurry. They must have taken several months for the appellant to complete the things which he had done on the property. The respondent had not disclosed these things in the plaint and has not prayed for a mandatory injunction for the removal of the structures put up by the appellant on the trespassed portion of the suit property. The court would therefore be justified in inferring acquiescence on the part of the respondent; I consider that this is not a case for directing delivery of possession of the trespassed portion to the respondent. But this is a case where the respondent has to be compensated in money for the value of the trespassed portion, .28. The learned Counsel also relied upon the decision of this Court in R.S. Muthuswami Gounder v. A. Annamalali and Ors. and contended that the plaintiff had acquiesced the first defendants occupation and enjoyment by putting up construction and such occupation being more than 15 years, the plaintiff is not entitled to the discretionary relief of mandatory injunction. The learned Counsel also relied upon the decision of this Court in R.S. Muthuswami Gounder v. A. Annamalali and Ors. and contended that the plaintiff had acquiesced the first defendants occupation and enjoyment by putting up construction and such occupation being more than 15 years, the plaintiff is not entitled to the discretionary relief of mandatory injunction. This Court in held thus: .In the case which came up for consideration before me, the respondent plaintiff had not done anything when the appellant-defendant was putting up a portion of his main building on a portion of the trespassed property and sinking a major portion of the well and doing other acts on the trespassed property and it was found that the appellant-defendant could not have done those things in a hurry and they must have taken several months for the appellant to complete the things which he had done on the property. The plaintiff-respondent had not disclosed those things in the plaint and had not prayed for a mandatory injunction for the removal of the structures put up by the defendant on the trespassed portion of the property. In those circumstances, I held, that the court would be justified in inferring acquiescence on the part of the respondent and considered that it was not a case for directing delivery of possession of the trespassed portion but it was a case where the respondent plaintiff had to be compensated in money for the value of the trespassed portion and I called for a finding from the lower appellate court as regards the market value of the trespassed portion. I am bound by the decision of the Division Bench of this Court rendered in the aforesaid Associated Cement Co. Ltd. v. L.S. Ramakrishna Gounder and following that decision and my own view expressed in Palanivelu v. Varadammal . 29. It is not as if the first defendant had encroached upon any portion of the plaintiffs property but the first defendant is in occupation of the intervening space of the width 30 feet x 36 feet even prior to the court auction sale under Ex.A-1. With respect to the intervening space, the plaintiff has no right. 30. 29. It is not as if the first defendant had encroached upon any portion of the plaintiffs property but the first defendant is in occupation of the intervening space of the width 30 feet x 36 feet even prior to the court auction sale under Ex.A-1. With respect to the intervening space, the plaintiff has no right. 30. It is to be pointed out that the plaintiff had not asked for the right of easement by necessity nor had prescribed such a claim across the portion in occupation of the first defendant and in the absence of such a plea it is not open to the plaintiff to claim any right across the space of 30 feet x 36 feet which is in exclusive enjoyment of the first defendant. 31. The admitted fact being that the intervening space is not substantial but it is of few feet nor it forms part of the road margin nor the plaintiff had been using the intervening space in the occupation of the first defendant at any point of time or on the date of the court auction sale under Ex.A-11. Therefore neither the plaintiff nor the predecessors in title could have claimed any right on the property in occupation of the first defendant by putting up construction of permanent or semi permanent nature. 32. There is no quarrel over the proposition laid down by this Court as well as the Apex Court. The point for distinction being that between the highway or public street and the plaintiffs property there is a space of 36 feet width, which the intervening space which is in the occupation of the first defendant. Admittedly as found by the first appellate court, for more than 15 years and right from Ex.A-11 court auction sale, the defendant is in exclusive possession. Therefore, the plaintiff cannot claim any right or claim over the space 30 feet x 36 feet in the occupation and enjoyment of the first defendant. The decision relied upon by the plaintiff will have no application to the facts of the present case, as it is not as if the plaintiffs property is adjacent to or on the highway and it is not as if the plaintiff has got a right to go upon the highway from any point of her property. 33. The decision relied upon by the plaintiff will have no application to the facts of the present case, as it is not as if the plaintiffs property is adjacent to or on the highway and it is not as if the plaintiff has got a right to go upon the highway from any point of her property. 33. In K. Sudarsan v. Commissioner, Corporation of Madras , this Court while construing a right of a owner of a house owning land on the adjacent or on the public street held that an owner of a house adjoining a highway is entitled to have access to such high way at any point at which the land actually touches it; but such owner has no right if a strip of land however, narrow belonging to another and not subject to the public right of passage intervenes. In the above case, it has been held thus: An owner of land adjoining a highway is entitled to access to such highway at any point at which his land actually touches it, even though the soil of the highway is vested in another, but he has no such right if a strip of land however narrow belonging to another and not subject to the public right of passage, intervenes. [Italics supplied] 34. I am in respectful agreement with the view taken by this Court in the said decision. It follows that the judgment of the first appellant court cannot be sustained as the plaintiff has no right to call upon the first defendant to remove the occupation of the space 30 feet x 36 feet which the first defendant has been in possession for a considerable or substantial period and at any rate long prior to the purchase by the plaintiff. 35. 35. The Substantial question of law framed has to be answered in favour of the appellant as admittedly the plaintiff has got 15.5 feet width of space through which she could reach the public street and merely because, there will be no vision or appearance from the public street the plaintiff cannot seek the relief of mandatory injunction at any rate the first defendant having pleaded a possessory right her right cannot be interferred by seeking the relief of mandatory injunction and more so when the first defendant proved her possession for more than 15 years and at any rate even before the purchase by the plaintiff under Ex.A-1 of the adjacent space. So also the court auction sale of the same property under Ex.A-11. The substantial question of law is answered in favour of the appellant. 36. This Court has to interfere and set aside the judgment of the first appellate court as the first appellate court had proceeded on the mere assumption that the plaintiff has got right to remove the occupation or dispossess the possessory right acquired or owned by the first defendant by relief of mandatory injunction, despite the admitted fact that the space occupied by the first defendant intervenes/between the plaintiffs property and the public street and it is of width more than 35 feet. 37. The Second Appeal is allowed and the judgment and decree of the trial court are restored. The parties shall bear their respective costs in the Second Appeal.