Judgment :- A.C. ARUMUGAPERUMAL ADITYAN, J. The defendant in O.S.No. 181 of 2002 on the file of the Court of District Munsif, Tenkasi, who had lost his defence before the Courts below is the appellant herein. 2. The respondent/plaintiff Roman Catholic Mission Sarveswaran Church had filed the suit for declaration of the frontage for the plaintiff in respect of the plaint schedule No. 2 property from plaint schedule No. 1 and for permanent injunction restraining the defendant from in any manner obstructing the said frontage and also for mandatory injunction for the removal of the constructions by the defendant in plaint schedule item No. l property. The short facts of the plaint relevant for the purpose of this appeal are as follows: The plaint schedule properties are situated on the Tenkasi-Kutralam Main Road. The plaintiff can have access only through plaint item No. 1 to item No. 2 property which is a vacant site and on the ground of easement of necessity also plaintiff requires the said access to item No. 2 through item No. 1 of the plaint schedule. The right of ingress and aggress to item No. 2 plaint schedule property in the plaint is only through plaint schedule item No. 1 property. Plaint item No. 2(1) was purchased by the plaintiff through a sale deed dated 22.9.2000 in the Revenue records item No. 2(2) was recorded as cemetery, item No. 2 (2) is being used by the plaintiff for the burial of the dead persons who belong to Christianity. The plaintiff is making all attempts to construct a prayer hall and a community hall in item No. 2(1) of the plaint schedule property. The first defendant is making attempts to construct a toilet in plaint schedule item No. 1 property on 3.7.2002. They have collected building materials like stones, sand in plaint item No. 1 on 4.7.2002 and they have also dug-up the foundation in the plaint schedule item No. 1. If the defendants are allowed to construct the toilet in the item No. 1 of the plaint schedule, then it will obstruct the right of ingress and egress of the plaintiff to reach the plaint schedule item No.2 property through plaint item No. 1. The construction of a toilet in plaint schedule item No. 1 will be a health hazard to public and it will also affect the sentiments of the minority Christians. Hence, the suit. The construction of a toilet in plaint schedule item No. 1 will be a health hazard to public and it will also affect the sentiments of the minority Christians. Hence, the suit. The defendant in his written statement has contended that the plaint item No. 1 was not mentioned in the schedule to the plaint. In plaint schedule item No. 1 the defendant is constructing a toilet exclusively for the use of women folk in village natham S. No. 622, which has been classified as road poramboke, with the help of Tenkasi MLAs Rural development fund. The defendant had proposed to construct the toilet as per the resolution of the Melagaram Panchayat Union dated 7.5.2002. The said toilet is being constructed in the poramboke in S. No. 622. On both the sides of Tenkasi Main Road is the residential locality, women folk conducted themselves in a way to cause health hazard to the public. The environmental pollution had occurred due to the conduct of then. The public who are going for a morning walk at Melagaram village found it very difficult to walk along the said road. That is why the toilet has been constructed in the suit property. The contention of the plaintiff is that if the toilet is allowed to be constructed near the cemetery, it will cause health hazard, is not true and a bore-well two over head tanks have also been installed and constructed respectively near the toilet and for the motor pump sets electricity connection has also been obtained by the defendant. The defendant has also proposed to engage two environmental assistants to keep the toilet clean. There is an entrance to the burial ground with a width of 10 feet. The toilet was not constructed in a way to obstruct the passage to the burial ground. From the Tenkasi-Kutralam main road there is no hindrance to anyone who pass through the said gate to the graveyard, in Melagram Panchayat union there are six toilets have been constructed by the defendant, and the same have been maintained properly with the help of environmental assistant. The distance between the compound wall of the burial ground and the Tenkasi-Kutralam road is about 44 feet 10 inches. The toilet in question is being constructed adjacent to the cemetery in a distance of about 20 feet. The distance between the compound wall of the burial ground and the Tenkasi-Kutralam road is about 44 feet 10 inches. The toilet in question is being constructed adjacent to the cemetery in a distance of about 20 feet. There may not be any passage for hindrance to get ingress and egress to the burial ground due to the construction of the toilet in the plaint schedule property. The plaintiff cannot claim any easmentary right to get ingress and egress to the cemetery. The construction of the toilet in the suit property will keep the entire environment in a hygienic condition. The tender was called for on 10.6.2002 for the construction of women folk in the plaint schedule property. On the basis of the tender one Sudali and Muthu Kumar were appointed as contractors on 21.6.2002 and they have commenced their work: on 24.6.2002. They are also necessary parties to the suit. A Commissioner was appointed for the purpose of noting the physical features of the suit property. Even at the time of visit of the Commissioner, the construction work for the toilet was in progress. There was a resolution passed by the Panchayat Union for the construction of the toilets for the woman folk in the plaint schedule property. The contractors have been advised to complete the work- on or before 31.7.2002. as per the terms and conditions of the contractors if the contractors do not complete the construction work on or before 31.7.2002 they have to refund the money to the Government. The plaintiff is not untitled to got an order of temporary injunction or mandatory injunction. Only for the purpose of the suit, the plaintiff states that he has proposed to construct a community hall and the prayer hall in item No. 2(1) in schedule item No. 2 of the suit property. There is a path way available for the plaintiff to get ingress and egress to item No. 2 of the plaint schedule property through item No. 1 of the plaint schedule property. The plaintiff is not having any property adjacent to the Tenkasi-Kutralam road. The land between the plaintiff and the grave yard does not belong to the plaintiff. Hence, plaintiff is not entitled to get an order on the basis of easement of necessity. The suit is barred for non-joinder of necessary parties like the contractors. The plaintiff is not having any property adjacent to the Tenkasi-Kutralam road. The land between the plaintiff and the grave yard does not belong to the plaintiff. Hence, plaintiff is not entitled to get an order on the basis of easement of necessity. The suit is barred for non-joinder of necessary parties like the contractors. The plaintiff has no cause of action to file the suit. Hence, the suit is liable to be dismissed with costs. 3. On the above pleading, the learned Trial Judge has framed four issues for trail. Before the Trial Court P.W.I was examined and Exhibits Al to A-5 were marked. D.W.l was examined and Exhibits B1 and B2 were marked. After going through the evidence both oral and documentary, the learned Trial judge has come to a conclusion that the plaintiff is entitled to the relief asked for in the plaint and accordingly decreed the suit giving a months time to the defendants to remove the construction from the plaint schedule property. Aggrieved by the findings of the learned Trial Judge the defendant had referred in A.S. No. 16 of 2005 before the learned Additional sub-Judge, Tenkasi. So, after giving due deliberations to the learned counsel for the appellant as well as the respondents and after meticulously going through the evidence both oral and documentary had come to an unassailable conclusion that there is no ground to interfere with the findings of the learned Trial Judge, had dismissed the appeal thereby confirming the findings of the learned Trial Judge which necessitated the defendant to file this second appeal. 4. Before admission notice was ordered to the Respondent and the documents have been called for from the Court below. Heard Mr. K.V.Subramaniam, learned senior counsel for the appellant and Mr. T.S.R.Venkataramana appearing for the caveator and considered their rival submissions. 5. The point: The learned senior counsel for the appellant would contend that only for the purpose of women folk at Melagaram panchayat has passed a resolution to construct a toilet in plaint item No. l which is on the road poramboke in S.No. 622. T.S.R.Venkataramana appearing for the caveator and considered their rival submissions. 5. The point: The learned senior counsel for the appellant would contend that only for the purpose of women folk at Melagaram panchayat has passed a resolution to construct a toilet in plaint item No. l which is on the road poramboke in S.No. 622. Both the Courts have concurrently held that from the report and plan of the Commissioner, it is seen that the construction in the plaint schedules item No. 1 is a hindrance to the plaintiff to get ingress and egress to plaint schedule item No. 2 vacant site which belongs to the plaintiff as per Exhibit A1 sale deed dated 22.9.2000. Item No. 2(1) is the vacant site and item No. 2(2) in the cemetery belonging to the plaintiff church. A perusal of the Commissioners report Exhibit C2 will go to show that D, C, U, Q is the vacant site belonging to the plaintiff which has been scheduled as 2(1) to the plaint. Adjacent to the said vacant site lies the cemetery which was marked as E, F, A, B, C, D in Exhibit C2 plan. In the written statement, the defendant would contend that the construction of the toilet which is shown as I, K, J, G, L, H will not be a hindrance to the plaintiff for getting access to go to the burial ground which is situated on the east of the vacant site D, C, U, Q. But that is not the case of the plaintiff. According to the plaintiff, because of the construction in front of his vacant site D, C, U, Q his frontage and access to Kutralam-Tenkasi Road which runs on the west of his vacant site is being obstructed. Both the Courts below have concurrently held that because of the construction of the toilet at the point I, K, J, G, L, H and septic tank at the point M, N, O, P are shown in Exhibit C-2 plan will affect the frontage of the plaintiff and also his access to the Kutralam-Tenkasi road from his property D, C, U, Q. The learned counsel for the respondent relying on Govinda Asari v. Kancheepuram Municipal Council rep. by its Commissioner Govinda Asari v. Kancheepuram Municipal Council rep. by its Commissioner Govinda Asari v. Kancheepuram Municipal Council rep. by its Commissioner Govinda Asari v. Kancheepuram Municipal Council rep. by its Commissioner Govinda Asari v. Kancheepuram Municipal Council rep. by its Commissioner (1981) 2 MLJ 336: (1981) 94 L.W. 697 would contend that as per the Section 162 and 163 of the Tamil Nadu District Municipality Act 1920 the Municipality has no right to deprive the owners of the properties abutting on a public street of their right of ingress and egress to the public street. The short facts of the said case is that the appellant in the second appeal is the owner of the workshop and a petrol bunk situate in T.S. No. 1770 of 2001 situated in Kancheepuram Town and abutting on a public street comprised in TS. No. 1770 of 2002. According to the plaintiff in that suit he was conducting a workshop in the western portion of the aforesaid No. 1770 of 2001 for more than 10 years prior to the institution of the suit. The approach to his property is through the public street, now called the bus stand road and formerly known as Maduran Thottam Road. The Government at the instance of the defendant Municipality had acquired TS.No. 1785 measuring 8,853 sq.ft. Adjacent to T.S. No. 1784 and the western portion of TS.No. 1170 of 2002 situated south of TS.No. 1784 and west and south of TS.No. 1770 of 2002 for the purpose of widening the road loading to the bus stand and transferred the sane to the defendant Municipality with a direction that the land acquired should be classified as Municipal Bus stand road. In the plaint schedule item No. 2, a lessee of the plaintiff had constructed a petrol bunk. The Municipality levied enhanced fee but the plaintiff refused to pay the same. Hence, the defendant Municipal council passed a resolution to put up a wall from east to west blocking the passage to the plaintiff and his lessee from items 1 and 2 to the public street. Hence, the plaintiff filed a suit which was decreed by the Trial Court. But on appeal, the learned first appellate Judge had allowed the appeal thereby dismissing the suit which necessitated the plaintiff to approach by way of a second appeal. Hence, the plaintiff filed a suit which was decreed by the Trial Court. But on appeal, the learned first appellate Judge had allowed the appeal thereby dismissing the suit which necessitated the plaintiff to approach by way of a second appeal. It was contended on behalf of the Municipality that the street south of the plaintiffs property is not a public street and that the Municipality is owner of the street and that the Municipality has got a right to prevent ingress and egress on the property of the plaintiff abutting the street. While dismissing the said defence, this Court has held as follows at p. 342 of MLJ: “ 24. The defendant has no right to construct a wall on the northern boundary of T.S. No. 1784 and S.No. 1770 of 2002 from east to west so as to prevent the plaintiff, his lessees and others claiming under him from having access to the public street. The endeavors of the defendant Municipality to construct a wall from east to west on the southern boundary of the plaintiffs property and the northern boundary of the public street so as to prevent the plaintiff and his man having access to the public street is not motivated by any interest of the public, and is mala fide. The defendant has no right to collect any licence fee from the plaintiff or his lessee for having access to the public street”. The other ratio on which the learned counsel for the Respondent had placed his reliance is in Samsudeen v. 1. Krishnan, 2. Thiruvengadam, 3. The Dindigul Municipality through its Commissioner, Municipal Office, Dindigul, 4. Dhinakaran, S. Senbagavalli, 6. Minor Gunabooshani rep. by R-6, 7. Rajaselvan, 8. Rajasekaran Baskaran Samsudeen v. 1. Krishnan, 2. Thiruvengadam, 3. The Dindigul Municipality through its Commissioner, Municipal Office, Dindigul, 4. Dhinakaran, S. Senbagavalli, 6. Minor Gunabooshani rep. by R-6, 7. Rajaselvan, 8. Rajasekaran Baskaran Samsudeen v. 1. Krishnan, 2. Thiruvengadam, 3. The Dindigul Municipality through its Commissioner, Municipal Office, Dindigul, 4. Dhinakaran, S. Senbagavalli, 6. Minor Gunabooshani rep. by R-6, 7. Rajaselvan, 8. Rajasekaran Baskaran . 1999 (2) LW 392 . The third defendant in the suit is the appellant in the second appeal. Minor Gunabooshani rep. by R-6, 7. Rajaselvan, 8. Rajasekaran Baskaran Samsudeen v. 1. Krishnan, 2. Thiruvengadam, 3. The Dindigul Municipality through its Commissioner, Municipal Office, Dindigul, 4. Dhinakaran, S. Senbagavalli, 6. Minor Gunabooshani rep. by R-6, 7. Rajaselvan, 8. Rajasekaran Baskaran . 1999 (2) LW 392 . The third defendant in the suit is the appellant in the second appeal. The suit was filed by the Respondents for declaration of their joint ownership over the pathway and the right of way over it us an easement of necessity and for a consequential injunction restraining the appellant and respondent 3 to 8 from causing any obstruction or hindrance to such user. The defence in essence was that there was an alternative pathway on the east of the first respondents property proceeding towards south and turning towards west and it was being used by the first Respondent and the eastern and southern owners had access. The plaint plan also was disputed as also the other averments in the plaint, which are not necessary to notice. The third Respondent Municipality had contended that it was unnecessary party, that pursuant to the application by the first Respondent an estimate was prepared and tap connection was given to him after receiving the necessary charges and respondents 4 to 8 did not object to the tap connection being given to the first Respondent In the plaint schedule property. The trial Court decreed the suit. The first appellate Court also confirmed the findings of the learned Trial Judge while dismissing the second appeal, this Court had observed as follows: “As already observed, the decisions relied on by the learned counsel for the appellant presuppose the existence of an alternative pathway for refusing relief of the easement of necessity. In the present case, it has not been established that the alleged alternative pathway could be used as of right by the respondents 1 and 2, D.W.2 being the exclusive owner of the alleged alternative pathway. 14. The Courts below have reached the finding regarding the non-existence of an alternative pathway as of right and found the existence of the suit pathway as the only pathway available to respondent. 1 and 2 for access”. In this case also there is no relief claimed on the basis of easement of necessity except there is pleading in the plaint to that effect. 1 and 2 for access”. In this case also there is no relief claimed on the basis of easement of necessity except there is pleading in the plaint to that effect. Both the Courts below have concurrently held that from the vacant site the plaintiff has no other alternative path way to reach the Kutralam-Tenkasi Main Road situated on the West and that the construction of the defendant in between the Kutralam-Tenkasi road and the vacant site will be a hindrance for the plaintiff to get access to the road on the west of his property. The said principal has been reiterated in the ratio laid down in Damodara Naidu and Others v. Thirupurasundari Ammal and Another Damodara Naidu and Others v. Thirupurasundari Ammal and Another Damodara Naidu and Others v. Thirupurasundari Ammal and Another (1972) 2 MLJ 4 : 85 L.W. 381, in the said ratio the suit is for declaration of plaintiffs title and for possession and for declaration of the plaintiffs right of way over item 2 and for a mandatory injunction directing for removal of obstruction preventing the plaintiffs to get access to his high way. The ratio decidendi of the ratio runs as follows at p. 6 of MLJ: “ 7. … 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 any one, the owner of the land abutting toe highway is entitled to maintain an action or the injury, whether the obstruction does or does not constitute a public nuisance”. The above said dictum will be applicable to the present facts of the case in all four corners. On the basis of the above said dictum, both the Courts below have concurrently held that the plaintiff is entitled to the relief asked for in the plaint. I do not find any illegality or irregularity in the findings of the Court below to warrant any interference. Since there is no substantial question of law Involved for consideration in the second appeal for admission. In fine, the second appeal is dismissed before admission.