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2012 DIGILAW 8 (MAD)

P. Subramaniam v. Thamban

2012-01-02

M.VENUGOPAL

body2012
Judgment :- 1. The Appellant/Plaintiff has projected this instant Second Appeal as against the Judgment and Decree dated 01.07.1998 in A.S.No.68 of 1997 passed by the Learned II Additional District Judge, Erode, in modifying the Judgment and Decree dated 31.07.1996 in O.S.No.171 of 1995 passed by the Learned District Munsif-cum-Judicial Magistrate, Perundurai. 2. The First Appellate Court viz., the Learned II Additional District Judge, Erode, while passing the Judgment in A.S.No.68 of 1997, dated 01.07.1998, has inter alia observed that since the earlier Commissioner is not coming to the Court, a new Commissioner has been appointed and as per Ex.C.4, Commissioners Plan from the Road to proceed to the land of the Appellant/Plaintiff, there is a 18 feet breadth way in between L.B.P. Canal and the temple and further, the said place is convenient for transport where the vehicles can ply easily and apart from the constructions seen in Ex.C.1 to Ex.C.4, no further change in construction is to be made and presently, it has come to the conclusion that there is no necessity to grant the relief of permanent injunction and consequently, allowed the Appeal with costs, thereby, setting aside the Judgment and Decree of the trial Court with costs of the Appellant/Plaintiff. Further, the First Appellate Court has also opined that in respect of the relief prayed for by the Appellant/Plaintiff in the suit that the Respondents/Defendants have no manner of right to put up the temple then, proper persons can be added and relief sought for, if so advised. 3. Earlier, in the main suit, the trail Court has framed two Issues for determination. 4. On behalf of the Appellant/Plaintiff, witness PW1 has been examined and Ex.A.1 to Ex.A.12 have been marked. On the side of the Respondents/Defendants, witnesses DW1 and DW2 have been marked and no exhibits have been marked. However, Ex.C.1, Commissioners Report, dated 31.03.1995 and Ex.C.2, Commissioners Plan have been marked. 5. The trial Court, on an appreciation of oral and documentary evidence available on record, has come to a clear and categorical conclusion that in Perundurai Taluk, Kanjikoil Village in R.S.No.169 viz., on the Northern side of the land of the Appellant/Plaintiff, the Respondents/Defendants or his men or agents and other persons should not put up any construction and accordingly, granted the relief of permanent injunction, without costs. 6. 6. As against the Judgment and Decree of the trial Court, dated 31.07.1996 in O.S.No.171 of 1995 on the file of the Learned District Munsif-cum-Judicial Magistrate, Perundurai, feeling aggrieved the Appellants/ Defendants have projected the first appeal A.S.No.68 of 1997 before the First Appellate Court viz., the Learned II Additional District Judge, Erode. 7. The First Appellate Court viz., the Learned II Additional District Judge, Erode in A.S.No.68 of 1997, dated 01.07.1998, after contest, has allowed the Appeal filed by the Appellants/Defendants and dismissed the suit with costs of the Plaintiff. 8. Being dissatisfied with the Judgment and Decree passed by the First Appellate Court in A.S.No.68 of 1997, dated 01.07.1998, the Appellant/Plaintiff has preferred this Second Appeal before this Court. 9. At the time of admission, this Court has formulated the following substantial questions of law for determination. “1) Whether the owner of land abutting the highway is entitled to maintain a suit for injunction, if the right to access from any point of his land is obstructed? 2) Whether the finding of the Appellate Court reversing the Judgment of the trial Court is vitiated by perversity?” 10. The Contentions, Discussions and Findings on substantial questions of law Nos.1 and 2: The Learned Counsel for the Appellant/Plaintiff urges before this Court that the Judgment and Decree passed by the First Appellate Court in A.S.No.68 of 1997, dated 01.07.1998, are against law, weight of evidence and all probabilities of the case. 11. According to the Learned Counsel for the Appellant/Plaintiff, the First Appellate Court viz., the Learned II Additional District Judge, Erode, has failed to appreciate that as per Ex.A.1 Partition Deed, dated 05.06.1992, the Appellant is the absolute owner of the whole extent of 0.38 acre in R.S.No.155/1 of the suit property. 12. It is the contention of the Learned Counsel for the Appellant/ Plaintiff that in law, if any one owns a land adjacent to Highways Road, he or she is entitled to use the road margin each and every point of his lands and further, the First Appellate Court, has not taken into account that on North of Appellant/Plaintiffs property, there exists the East-West main Road, which is the main access to reach the land in R.S.No.155/1. 13. 13. The stand of the Appellant/Plaintiff is that there is a Government poramboke land in between his property and the main road and also, that the Respondents/Defendants have categorically admitted that there is a Cart Track leading from the main road to the Appellant/Plaintiffs land. However, these vital aspects of the matter have not been adverted to by the First Appellate Court in a proper perspective. 14. That apart, the Learned Counsel for the Appellant/Plaintiff submits that the property in dispute is a land which is within the defined boundary, abutting the road and hence, the Appellant/Plaintiff can maintain an action for trespass against anyone including the Respondents, who acts in excess of their rights. 15. The Learned Counsel for the Appellant/Plaintiff projects a plea that prima facie case is only in favour of the Appellant/Plaintiff, because of the admitted fact that the suit property is a Government poramboke land. 16. Lastly, it is the contention of the Learned Counsel for the Appellant/Plaintiff that the First Appellate Court viz., the Learned II Additional District Judge, Erode, has not taken into account of the existence of the temple. Moreover, the Respondents/Defendants have put up a permanent structure in the Government poramboke land, without obtaining necessary prior permission from the Government. As a matter of fact, the Respondents/Defendants have no manner of right to put up the construction of a temple in the poramboke land affecting the Appellant/Plaintiffs peaceful enjoyment over the suit property. 17. To appreciate the merits of the case in an efficacious and effective manner, this Court refers to the evidence of witnesses PW1, DW1 and DW2. 18. PW1 (The Appellant/Plaintiff) in his evidence has deposed that the suit property is situated at Kanjikoil Village, Perundurai Taluk and he has instituted the present suit against the Respondents/Defendants 1 to 5 and further, the suit belongs to him as per Partition Deed of the year 1992 and in R.S.No.155/1, he has a right of 38 cents and that the Ex.A.1 Partition Deed, dated 05.06.1992, relates to one acre and also that, he is paying the kist to the land and the kist receipts are Ex.A.2 to Ex.A.6. 19. 19. Continuing further, it is the evidence of PW1 that the Highways Thar Road is situated on East-West and the Thar Road is proceeding to his land and there in no other way and adjoining the road, there is a land and from the Road margin from every inch, he is entitled to come to his property and the Respondents/Defendants have no manner of right preventing him from entering into his property and there is a difference of opinion between himself and the Respondents/ Defendants because of the by-election. 20. The evidence of PW1 is to the effect that on 20.03.1995, the Respondents/Defendants have come in front of his land and blocked the way and they started to put up the construction of the building, but, he has prevented them from doing so. Further, if the Respondents/Defendants are allowed to put up the building construction, they cannot enter into his land and also that the Respondents/Defendants in front of his land, they cannot prevent or block the road way. 21. PW1 (in his cross examination) has stated that next to his land, there is a ditch and there is no poramboke land and the lands belong to the Highways and it is wrong to state that it is the Government poramboke and further that, he has filed a record to show that it is not a Government poramboke and after filing of the case, a temple has been constructed. 22. DW1 (3rd Defendant) (in his evidence) has deposed that on the Southern side of the temple, there is a land of the Appellant/ Plaintiff and the pathway is situated on the Western side of the temple and the Channel is on the Western side of the pathway and the Western side of the pathway is proceeding to the land of the Appellant/Plaintiff. Added further, it is the evidence of DW1 (3rd Defendant) that next to the land of the Appellant/Plaintiff, there is a poramboke land in which there is a temple and the Appellant/Plaintiff has no right to prevent the Respondents/Defendants from putting up the construction. 23. Added further, it is the evidence of DW1 (3rd Defendant) that next to the land of the Appellant/Plaintiff, there is a poramboke land in which there is a temple and the Appellant/Plaintiff has no right to prevent the Respondents/Defendants from putting up the construction. 23. DW1 (in his cross examination) has deposed that on the Southern side of the Appellant/Plaintiffs land, there is a patta land and on the Eastern side of the Appellant/Plaintiffs land, there is a land owned by the Appellant/Plaintiffs brother and that he has not obtained any permission from the Government for construction of the temple and further, he has not informed the Government about the construction of the temple and he does not know that the permission has to be obtained for putting up a construction in Government land and till date, he has not obtained any permission to put up the construction and they are putting up the construction of the existing building and when the Commissioner inspected the suit property for the first time, no building has been constructed and that the Commissioner has seen the physical features of the property. 24. DW1 (in his evidence) has stated that on the Western side of the temple, there is a pathway and they informed the Appellant/ Plaintiff not to obstruct the temple and informed him to proceed to his land through his brothers land and it is wrong to state that there is no temple. 25. Also, it is the evidence of DW1 that the temple belongs to the downward people of R.K.V. Nagar and Avinashilingapuram and the temple belongs to them and there is no other temple. Furthermore, it is the evidence of DW2 that he cannot provide an answer to a suggestion since there is a temple in front of the Appellant/Plaintiffs land, a Shop cannot be constructed and further, there is a temple. 26. Furthermore, it is the evidence of DW2 that he cannot provide an answer to a suggestion since there is a temple in front of the Appellant/Plaintiffs land, a Shop cannot be constructed and further, there is a temple. 26. The trial Court, in his Judgment in the suit in O.S.No.171 of 1995, has observed that the Respondents/Defendants have no right to construct a temple by obstructing the Appellant/Plaintiff and further, the Appellant/Plaintiff through poramboke land has right to reach the road from every inch and if the Respondents/Defendants constructed a temple in front of the temple, then, the value of the Appellant/Plaintiffs land will be lost and the same is true as stated by the Appellant/Plaintiff and consequently, granted the relief of permanent injunction in favour of the Appellant/Plaintiff. 27. It is to be pointed out that a Court of law can decide so far as regards the interest of parties actually before it. 28. At this stage, this Court points out the decision of the Honourable Supreme Court Khetrabasi Biswal v. Ajaya Kumar Baral and others, (2004) 1 Supreme Court Cases 317, at Page 319 wherein Para 6 it is held as follows: “The procedural law as well as the substantive law both mandates that in the absence of a necessary party, the order passed is a nullity and does not have a binding effect.” 29. This Court worth recalls the decision Hakao Kithan v. Mhonchumo and another, 1996 A I H C 5316, at Page 5317 in Paras 7 to 9, it is observed and held as follows: “(7) Whether a particular person should be impleaded as necessary party or not is a question of law. By understanding of parties to the dispute cannot over rule the provision of law. As necessary party to the dispute has been settled by a catena of decision of the Apex Court as well as by this Court. By understanding of parties to the dispute cannot over rule the provision of law. As necessary party to the dispute has been settled by a catena of decision of the Apex Court as well as by this Court. This Court in Shri Chubalemsu Ao v. Nangponger, 1994 (1) GLJ 177:(AIR 1994 Gauhati 110) had held that (at P.112 of AIR): “If in a suit necessary party is not added the suit shall be dismissed not for the reasons of non-joinder of misjoinder of the parties but because no effective order can be passed consequently no relief can be granted to the parties on records.” (8) While giving the aforesaid decision this Court has referred to the decision of the Apex Court in Udit Narain Singh Malpahamia v. Additional Member Board of Revenue Bihar, AIR 1963 SC 786 . (9) As already said that the Government of Nagaland was a necessary party. However, the Government of Nagaland was not made as necessary party and the learned A.D.C. (J) has not recorded any decision on issue No.7 which was a relevant issue.” 30. It is to be borne in mind that in O.S.No.171 of 1995, neither the Highways Department nor the Officials of the Revenue Department, like Collector or other Revenue Officials of the Revenue Department, has been arrayed as one of the parties to the proceedings. If the poramboke land, which is situated next to the Appellant/Plaintiffs land belongs either to the Highways Department or to the Government because of its nature as poramboke land, then, this Court is of the considered view that the proper authorities from the Highways Department or the Revenue Officials including the Collector etc. should have been the proper persons to have been added to contest the proceedings in O.S.No.171 of 1995 on the file of the trial Court. Unfortunately, neither the Highways Department nor the Revenue Officials/State Government has been shown as a party in O.S.No.171 of 1995 and therefore, this Court comes to a logical conclusion that the suit filed by the Appellant/Plaintiff before the trial Court in O.S.No.171 of 1995 is not maintainable without either impleading the authority of the Highways Department or Revenue Officials representing the State Government, because of the simple fact that the land is a poramboke one belonging to the Government. 31. 31. In the instant case on hand, the Appellant/Plaintiff has laid his claim in respect of the suit property by virtue of Ex.A.1 Partition Deed, dated 05.06.1992. The Appellant/Plaintiff, in law, has every right to proceed to his land, which is situated next to the poramboke land from any side and from every inch of the road. The Appellant/Plaintiff, indeed, cannot be prevented from entering into his land from any side of the Road. 32. In Ex.C.3 Commissioners Report (received by the First Appellate Court on 22.06.1998) it is inter alia mentioned that in the suit property temple on the Northern outside, there is a Statue of 16 feet Munisamy and Mahali Amman and next to that on the Western side facing East, there is a room with an entrance and in the said room, the Statues of Maduraiveeran, Karupparayan, Kannimar, Dhanasi Amman God and Goddess has been found and these Statues of God and Goddess has been made mention of by both the parties and the room has been built with a roof and the height of the temple is between 15 to 17 approximately etc. Also, specifically in the Ex.C.4 Commissioners Report, it is mentioned that in the suit property temple and also, the surrounded areas has been shown to the Commissioner by the Appellant/Plaintiffs Counsel and the Respondent and the Respondents Counsel and from L.B.P. Ccnal, there is a lake very near by at a breadth of approximately 18 feet and from the said lake to Kanjikoil, Pethampalayam Road, there is a pathway like way, which has been shown by the Advocate Commissioner in Ex.C.3. Therefore, it is candidly clear that through the said pathway, the vehicle traffic can ply easily without any hindrance whatsoever. The First Appellate Court, while observing that there is a facility of moving the vehicles from the road to reach the Appellant/Plaintiffs land and as such, it has concluded in his Judgment in Appeal as per Ex.C.1 to Ex.C.4 apart from the construction (already been made), no change shall be made. 33. The Advocate Commissioner on 25.03.1995 before the trial Court has submitted Ex.C.1 and Ex.C.2 Plan and Report after inspecting the suit property and it is pertinently to be pointed out that the suit has been filed on 24.03.1995. 33. The Advocate Commissioner on 25.03.1995 before the trial Court has submitted Ex.C.1 and Ex.C.2 Plan and Report after inspecting the suit property and it is pertinently to be pointed out that the suit has been filed on 24.03.1995. The suit property in Ex.A.2 has been mentioned as ABCD and in that portion, the Commissioner has seen the stones kept in a heap and also, he has observed that a temporary shed has been constructed. Since in the suit property, there is a temple and also, one shed has been constructed and also, heap of stones have been kept, all these clearly point out that the temple has been constructed by the Respondents/Defendant in the land and does not belong to them and also, the Appellant/Plaintiff in law has a right to prevent the Respondent/Defendant from constructing a temple etc. But, since, the Appellant/Plaintiff has not arrayed as a necessary/proper party to the suit O.S.No.171 of 1995 namely either the Highways Department Authorities or the Revenue Authorities (including the Collector etc.). This Court is of the considered view that the Appellant/Plaintiff is not entitled to get the relief of permanent injunction as prayed for by him in the Plaint for the simple reason, a Court cannot pass a decree against the persons, who have not been before the Court and not added as necessary parties to the suit. Also, inasmuch as the suit temple is situated in poramboke land, it is open to the Appellant/Plaintiff to implead the proper and relevant parties to the suit so as to have a complete and comprehensive adjudication in respect of the controversies/dispute involved between the parties. Viewed in that perspective, this Court does not find any material irregularity or patent illegality in the Judgment of the First Appellate Court in Appeal to the effect that the Appellant/Plaintiff is not entitled to get the relief of permanent injunction. Viewed in that perspective, the Appeal filed by the Appellant fails. 34. In the result, the Second Appeal is dismissed leaving the parties to bear their own costs. Consequently, the Judgment and Decree of the First Appellate Court in A.S.No.68 of 1997, dated 01.07.1998, are affirmed for the reasons assigned by this Court in this Appeal. Viewed in that perspective, the Appeal filed by the Appellant fails. 34. In the result, the Second Appeal is dismissed leaving the parties to bear their own costs. Consequently, the Judgment and Decree of the First Appellate Court in A.S.No.68 of 1997, dated 01.07.1998, are affirmed for the reasons assigned by this Court in this Appeal. It is made clear that the dismissal of the suit O.S.No.171 of 1995, dated 31.07.1996, will not in any way preclude/prevent the Appellant/Plaintiff to institute the fresh suit impleading the proper and necessary parties and to seek appropriate remedy in the manner known to law and in accordance with law. Consequently, connected C.M.P.No.9928 of 1999 is closed.