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2009 DIGILAW 4747 (MAD)

Swaminatha Udayar & Others v. Arumuga Udayar

2009-11-06

R.BANUMATHI

body2009
Judgment This Second Appeal arises out of the Judgment and decree in A.S.No.1/2002 arising out of the Judgment and decree of the trial Court and also granting Mandatory Injunction directing removal of stone wall (fy;fl;L). Unsuccessful Defendants are the Appellants. .2. The dispute is in respect of cart-track in S.No.65/7 which is situated on the southern side of the lands of Plaintiff. Case of Plaintiff is that he owns agricultural lands in S.Nos.65/5 and 65/6 in Sokkanathapuram village, Attur Taluk and the suit cart-track is situated in S.No.65/7 on the southern side of Plaintiffs land. Further case of Plaintiff is that he has got right of access to his lands from any point of the suit cart-track, which is common to the Plaintiff and Defendants. It is further stated that due to previous enmity, Defendants arranged to put up a stone wall (fy;fl;L) along the northern boundary of the suit cart-track and annexing the same to their Patta land on or about 1st September 1997. Therefore, Plaintiff filed the suit for (i) Declaring that Plaintiff has got right to have access to his Patta lands from the suit cart-track; (ii) Permanent Injunction restraining the Defendants and their men and agents from in any way interfering with the peaceful enjoyment of his right of access to the Patta land from the suit cart-track; and (iii) Mandatory Injunction directing the Defendants to remove the obstructions created by them by putting a stone wall along the northern side of cart-track. 3. Defendants filed written statement admitting the existence of cart-track in S.No.65/7 which lies in between the lands of Plaintiff and Defendants from Thandavarayapuram Panchayat Road proceeds east-west and Defendants never prevented the Plaintiff from using the suit cart-track by putting up a stone wall. Case of Defendants is that Plaintiffs lands are lower than the cart-track by 2 to 3 feet and Plaintiff cannot use the cart-track on the western side of the Well portion. According to the Defendants, Plaintiff reduced the width of the cart-track and prevented from taking vehicles. It is averred that the revenue officials measured the lands and the panchayatdars also directed to put up a stone wall to prevent the Plaintiff from reducing the width of the cart-track and accordingly, Defendants constructed the stone wall (fy;fl;L) as directed by the panchayatdars, only in order to prevent the Plaintiff from reducing the width of the carttrack. 4. It is averred that the revenue officials measured the lands and the panchayatdars also directed to put up a stone wall to prevent the Plaintiff from reducing the width of the cart-track and accordingly, Defendants constructed the stone wall (fy;fl;L) as directed by the panchayatdars, only in order to prevent the Plaintiff from reducing the width of the carttrack. 4. On the above pleadings, four Issues were framed. Plaintiff examined himself as PW1 and Advocate-Commissioner was examined as PW2. Exs.A1 to A6 were marked. 4th Defendant was examined as DW1 and panchayatdars were examined as DWs.2 and 3. Exs.C1 to C5 were marked. .5. Upon consideration of evidence, trial Court held that Plaintiff is entitled to use suit cart-track without disturbing the cart-track and the stone wall and trial Court also granted Permanent Injunction restraining the Defendants from interfering with the suit cart-track. On the basis of Commissioners Report, trial court further held that Plaintiff was not using the cart-track on the western side of his Well portion, since the said portion of his land is 3 feet lower than the cart-track. Referring to the evidence of DWs.2 and 3, trial Court further held that the stone wall was constructed only as per decision of the panchayatdars. In so far as relief of Mandatory Injunction is concerned, trial Court held that if the stone wall on the northern side of cart-track is removed, the cart-track cannot be used and the trial Court declined the relief of Mandatory Injunction. 6. Aggrieved by the dismissal of the suit in respect of prayer for Mandatory Injunction, Plaintiff preferred an Appeal in A.S.No.1/2002 on the file of Sub-Court, Attur. The lower Appellate Court rejected the contention of the Defendants that the stone wall was constructed mainly for preventing any damage to the cart-track due to soil erosion. Pointing out that the suit cart-track is in S.No.65/7 which is a Government poramboke, lower Appellate Court held that it is the duty of the Village panchayat to maintain the cart-track and on those findings, granted Mandatory Injunction directing removal of stone wall (fy;fl;L). .7. Aggrieved by the Judgment and decree in A.S.No.1/2002, Defendants have filed this Second Appeal. Pointing out that the suit cart-track is in S.No.65/7 which is a Government poramboke, lower Appellate Court held that it is the duty of the Village panchayat to maintain the cart-track and on those findings, granted Mandatory Injunction directing removal of stone wall (fy;fl;L). .7. Aggrieved by the Judgment and decree in A.S.No.1/2002, Defendants have filed this Second Appeal. At the time of admission of Second Appeal, the following substantial question of law was framed for consideration:- ."Whether a decree for mandatory injunction in respect of a Government Public Cart Track can be granted against individuals, in the absence of the Government being made a party? 8. Even at the out set, it is to be noted that Defendants did not raise any such objection before the lower Courts as to the necessity of impleading the Government and in the absence of Government, the relief of Mandatory Injunction could not be granted in respect of public cart-track. The objection as to impleading of Government cannot be agitated for the first time in the High Court. .9. The suit cart-track situated in S.No.65/7, Sokkanathapuram Village is a Government poramboke. Plaintiffs land is situated on the northern side of cart-track and the lands of Defendants is on the southern side of cart-track. There is no dispute that Plaintiffs lands on the western side of his Well is situated at a depth of about 2 to 3 feet from the carttrack. Based on the evidence of PWs.1and 2 and Commissioners Report and plan, .Exs.C1 and C2, both the Courts recorded concurrent findings as to the Plaintiffs entitlement to use the cart-track. In the Commissioners Report and Plan marked as Exs.C1 and C2, the Commissioner has noted that the stone wall is constructed on the northern side of cart-track. According to the Defendants, they have put up the stone wall on the northern side of suit cart-track to prevent the soil erosion and as per the decision of the panchayatdars. To bring home the panchayatdars decision, DWs.2 and 3 were examined who have stated that to prevent the soil erosion, panchayatdars permitted the Defendants to put up stone wall (fy;fl;L). 10. Based on the evidence of DWs.2 and 3, trial Court held that only as per the decision of the panchayatdars, stone wall (fy;fl;L) was put up on the northern side of cart-track. 10. Based on the evidence of DWs.2 and 3, trial Court held that only as per the decision of the panchayatdars, stone wall (fy;fl;L) was put up on the northern side of cart-track. As rightly held by the lower Appellate Court, it is not the case of Defendants that Plaintiff consented to put up stone wall (fy;fl;L). In the absence of any document/muchalika showing the decision of the panchayatdars, lower Appellate Court rightly not attached much evidentiary value to the evidence of DWs.2 and 3. It cannot be said that the lower Appellate Court committed an error in analysing the oral evidence of DWs.1 to 3. 11. Observing that a person owns a property adjoining a highway belonging to the Government or by the local bodies, the person owning the property abutting the Highway Road is entitled to have access to the Highway from each and every point of his property. In 1997 (III) CTC 461 [K.Pitchai Mohideen v. M.K.M.Abdul Hakkim and 11 others], this Court held as under:- "20. ..... There are number of decisions which show that if a person owns a property adjoining a highway belonging to the Government or by the local bodies the person owning the property abutting the Highway Road is entitled to have access to the Highway from each and every point of his property. ......" Admittedly, the suit cart-track is situated in S.No.65/7. Plaintiff has got right of access to his land from any part of the cart-track and the same cannot be prevented by putting up stone wall (fy;fl;L) at the instance of the Defendants. 12. It is also pertinent to note that the stone wall (fy;fl;L) on the northern side is only in the lands of the Plaintiff. In his evidence, PW2-Commissioner has stated that the stone wall (fy;fl;L) is in S.No.65/6. The relevant portion of evidence of PW2-Advocate Commissioner reads as under:- TAMIL When the stone wall (fy;fl;L) is in the Patta land of Plaintiff, necessarily the same has to be removed. According to the Defendants, only to prevent the soil erosion from the carttrack and to prevent further damage, Defendants have put up the stone wall (fy;fl;L). Admittedly, the cart-track is situated in the Government poramboke land in S.No.65/7. According to the Defendants, only to prevent the soil erosion from the carttrack and to prevent further damage, Defendants have put up the stone wall (fy;fl;L). Admittedly, the cart-track is situated in the Government poramboke land in S.No.65/7. Taking note that the cart-track is situated in the Government poramboke land, lower Appellate Court rightly held that the Defendants have no right to carry out any maintenance or to put up the stone wall (fy;fl;L) in the poramboke land. 13. Upon analysis of the materials on record and the right of Plaintiff to have access to his lands from any part of the cart-track, lower Appellate Court rightly granted Mandatory Injunction directing removal of stone wall (fy;fl;L). The conclusion of the lower Appellate Court is based upon appreciation of evidence and does not suffer from any serious or substantial error warranting interference exercising jurisdiction under Sec.100 CPC. 14. In the result, the Judgment of the lower Appellate court in A.S.No.1/2002 dated 30.06.2004 on the file of Subordinate Court, Attur (arising out of the Judgment in O.S.No.337/1997 dated 30.11.2001 on the file of District Munsif Court, Attur) is confirmed and this Second Appeal is dismissed. No costs.