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2014 DIGILAW 4348 (MAD)

P. M. R. Kannan v. Thasthageer

2014-11-19

R.MAHADEVAN

body2014
JUDGMENT Plaintiff in O.S.No.245 of 2004 on the file of the I Additional District Munsif, Tirukoilur is the appellant in the second appeal. 2. The case of the appellant/plaintiff is as follows: The suit pathway lies on the west of his property. The plaintiff and the general public use the suit pathway from 1975 onwards. The first defendant owns a cycle shop in the name and style of M.T.R. Cycle shop on the eastern side of the suit property. By dumping garbage and parking his cycle, the 1st defendant is obstructing the plaintiff from using the lane from 10.08.2003. Despite complaining to the respondents 2 & 3, no action has been taken to remove the garbage and prevent the first defendant from using the suit property as a dumping ground. As the third defendant is a civic body entrusted with the work of removing garbage, and the second defendant is its superior authority, they are impleaded as necessary parties. Hence, the suit for permanent injunction restraining 1st the defendant and his men from parking cycles and dumping garbage on the suit property and obstruct the lane and also for mandatory injunction directing the third defendant to supervise the first defendant and prevent him from obstructing the passage by dumping garbage. 3. The suit was resisted by the first defendant contending that the suit property and other property on the western side of the suit property, comprising of land with asbestos building in it, originally belonged to one Hasina. The said Hasina had executed a settlement deed in favour of this defendant with respect to these properties on 13.11.1998. The suit property is in possession and enjoyment of this defendant, from the date of purchase and he has also obtained Patta in his name. The plaintiff has never used the suit property as a lane to reach his godown and he has an alternate route via Perumal Naicker Street. Hence, the suit is liable to be dismissed. 4. The brief averments stated in the written statement filed by the 3rd defendant and adopted by the second defendant are as follows: Both the plaintiff and defendant are enjoying the right of crossing over the suit property through the cement slabs, which covered the drainage channel. Hence, the suit is liable to be dismissed. 4. The brief averments stated in the written statement filed by the 3rd defendant and adopted by the second defendant are as follows: Both the plaintiff and defendant are enjoying the right of crossing over the suit property through the cement slabs, which covered the drainage channel. The bounden duty of cleaning, removing the encroachments are being done properly by this defendant with the help of menials and hence, no mandatory injunction be passed against him. Hence, this suit is liable to be dismissed. 5. The Trial Judge framed three issues which are as follows: i) Whether the plaintiff is entitled to any permanent injunction against the first defendant? ii) Whether the plaintiff is entitled to any mandatory injunction against the third defendant? iii) To what other relief? 6. Before the Trial Court, the plaintiff examined himself as PW1 apart from examining three more witnesses as P.Ws.2 to 4 and marked two documents. On the side of the defendants, the first defendant examined himself as DW1 and one Ramamoorthy was examined as DW2 and no document was adduced. At the instance of the court, two documents were marked as Ex.X1 and Ex.X2. Upon considering the oral and documentary evidences, the trial Court dismissed the suit with costs. On appeal, the learned first appellate Judge concurred with the finding of the Trial Court. As against the judgment and decree of the learned first appellate court, the present second appeal has been filed. 7. The second appeal has been admitted identifying the following questions to be the substantial questions of law involved in the second appeal: i) Whether the courts below are right in dismissing the suit when the suit property is established as a public pathway? ii) Whether the first defendant can claim title to the suit property, which is a public proprty, and obstruct free flow of passage? 8. The arguments advanced by Mr.V.Raghavachari learned counsel for the appellant and by Mr.Ramaraja, Government Pleader (C.S) appearing on behalf of the respondents 2 and 3 are heard. The materials available on record are also perused. 9. Perusal of the material records would reveal that the suit property is nothing but the lane situated on the southern side of the appellant's Godown. It is also true that common public are also using the said lane as a pathway / street. The materials available on record are also perused. 9. Perusal of the material records would reveal that the suit property is nothing but the lane situated on the southern side of the appellant's Godown. It is also true that common public are also using the said lane as a pathway / street. In the meanwhile, the 1st defendant, claiming right over the said lane, blocked the plaintiff and other persons in using the lane as path way / street by way of parking his cycle and also dumping garbage over the suit path way. 10. In order to arrive at a firm decision in this case, an Advocate Commissioner was appointed by the learned I Additional District Munsif Court, Thirukoilur, who, on due inspection of the suit path way on 07.11.2014, submitted his report stating as under: "Based on the request of the 1st defendant's advocate to inspect whether the plaintiff has been reaching his go down through Perumal Naicker Street, it was found that a grossery shop owned by the plaintiff is situated in the Perumal Naicker Street at MNOP as found mentioned in the sketch, in which there is no way to reach his go down. Adjacent to his shop, the kitchen of Sri Ramuluchettiar's house is situated. The go down of the plaintiff is constructed just behind the kitchen. Therefore, it is clear that there is no path way to reach the godown of the plaintiff through Perumal Naicker Street." 11. The learned Trial Court, after considering all the materials, held that though the plaintiff/appellant stated the suit property as street, the Advocate Commissioner described the same as a lane. But on perusal of the report of the Advocate Commissioner, it is seen that the Advocate Commissioner had nowhere stated that the suit property is purely a lane, instead he has stated that though the suit property is described as street in Village records, no village records have been produced to show that the suit property is a street. It was not denied by the Advocate Commissioner that the path way / street is being used by all sections of people to pass through the street, but he had clearly stated that there is no way to reach the go down of the plaintiff/appellant. It was not denied by the Advocate Commissioner that the path way / street is being used by all sections of people to pass through the street, but he had clearly stated that there is no way to reach the go down of the plaintiff/appellant. Moreover, the 1st defendant in his cross examination did not deny the fact that the suit property is a part of the VAO's office, situated immediately on the western side of the suit path way thereby, he admitted that the suit path way is a Government property used by the public as common path way. 12. It is to be borne in mind that the plaintiff/ appellant filed the suit seeking for permanent injunction, restraining the 1st defendant and his men in dumping / blocking the path way and not for an injunction to interfere with the peaceful possession of the plaintiff/appellant and the prayer sought for by the plaintiff/ appellant is for the common purpose, for which there was also no objection on the side of the 1st defendant. However, by dismissing the suit filed by the plaintiff / appellant, the Trial Court erred in extending the exclusive right to the 1st defendant so as to prevent others to use the Government land and therefore, the order of the Trial Court is ex facie not sustainable. When the ingress and ingress of the plaintiff is affected, it is his right to agitate this issue by way of suit which is lost sight by the Trial Court as well as the appellate court. 13. Now, one aspect that has to be determined in this case is that whether the action of the 1st defendant in dumping garbage and parking his cycles across the path way thereby, obstructing the lane belonging to the Government, is permissible. The answer is in negative. Once the parties to the suit accepted that13. Now, one aspect that has to be determined in this case is that whether the action of the 1st defendant in dumping garbage and parking his cycles across the path way thereby, obstructing the lane belonging to the Government, is permissible. The answer is in negative. The answer is in negative. Once the parties to the suit accepted that13. Now, one aspect that has to be determined in this case is that whether the action of the 1st defendant in dumping garbage and parking his cycles across the path way thereby, obstructing the lane belonging to the Government, is permissible. The answer is in negative. Once the parties to the suit accepted that the suit path way is a Government property, being used by the general public, including the plaintiff / appellant to cross from one corner to other corner, there is absolutely no justification with the Trial Court in indirectly giving the entire right to the 1st defendant for his exclusive usage so as to obstruct the free flow of passage. Since because, the third defendant has been deputing menials to clean manures and other obstructions to the channel at the pathway, the first defendant cannot shut the pathway by way of putting barricade. Like other persons, the first defendant is also entitled to use the said pathway for the purpose of reaching other side of the street and not otherwise. 14. In the case between "State of Tamil Nadu represented by the District Collector, Erode and others and D.Samiyathal" reported in CDJ 2012 MHC 5442 this Court held as follows: "8....... In Municipal Board, Manglaur Vs. Mahadeoji Maharaj reported in AIR 1965 SC 1147 , the Hon'ble Supreme Court has held in clear terms that the Municipality which is given the right of maintaining the road cannot put up structures on the vacant site adjoining the road/street which are not necessary for the maintenance or up-keep of the same as road/street. In the State of Tamil Nadu rep. by the Collector of Salem, etc., and 3 others reported in Govinda Asari Vs. The Kancheepuram Municipal Council, rep. by its Commissioner reported in in Kullammal Vs. I.K.Perumal and Cuddalore Municipality by its Commissioner reported in Bharathamatha Deisya Sangam Madhavaram and another Vs. Roja Sundaram and others reported in AIR 1987 Madras 183, in Damodara Naidu and others Vs. Thirupurasundari Ammal and another reported in AIR 1972 Madras 386, in O.N.Natarajan and another Vs. The Municipal Council, Thraiyur rep. by its Executive Authority and Commissioner, reported and in the Commissioner, Panruti Municipality, Panruti Vs. Roja Sundaram and others reported in AIR 1987 Madras 183, in Damodara Naidu and others Vs. Thirupurasundari Ammal and another reported in AIR 1972 Madras 386, in O.N.Natarajan and another Vs. The Municipal Council, Thraiyur rep. by its Executive Authority and Commissioner, reported and in the Commissioner, Panruti Municipality, Panruti Vs. Sri Kannika Parameswari Amman Temple by its Managing Trustee, K.Narasimhalu Chettiar reported in 1996 2 MLJ 339 , this Court has held in clear terms that the Municipality does not have a right to deprive the owners of the property abutting a public street or public road of their right to ingress and egress though the public street vested with the Municipality. It has also been held that the vesting of the public street / public road in the authority shall not give a right to such authority to deprive the owners of the adjacent lands of their right to have access to the public road/public street from any point. It is unnecessary to reproduce the observations made in all those judgments. Suffice to state that it has been uniformly held that the owners of the land adjoining the street or road margin are entitled to see that access to their property from the street or road to the entire length is not obstructed by any construction which is not necessary for the maintenance and upkeep of the property as a road or street, as the case may be. " 15. For the foregoing reasons and discussions, the substantial questions of law raised in this appeal are decided in favour of the appellant / plaintiff and as against the first respondent / first defendant. 16. In the result, the Second Appeal is allowed and the judgment and decree dated 27.03.2006 made in A.S. No.66 of 2005 on the file of the learned Principal Subordinate Judge, Villupuram, confirming the judgment and decree passed in O.S.No.245 of 2004 dated 02.03.2005 on the file of the learned I Additional District Munsif Court, Thirukoilur, are set aside. However, there shall be no order as to costs. The 1st respondent / 1st defendant is directed to remove all the hindrance from the suit path way forthwith for the free flow of passage by the plaintiff as well as the general public. However, there shall be no order as to costs. The 1st respondent / 1st defendant is directed to remove all the hindrance from the suit path way forthwith for the free flow of passage by the plaintiff as well as the general public. However, it is made clear that this order does not entitle either parties to claim exclusive right over the suit path way, since it is an admitted fact that the suit path way is the Government property.