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2019 DIGILAW 824 (MAD)

Sambandam v. Radhakrishnan

2019-04-01

T.RAVINDRAN

body2019
JUDGMENT : (Prayer: Second Appeal filed under Section 100 of C.P.C., against the judgment and decree dated 22.08.2005 in A.S.No.19 of 2003 on the file of the Principal Subordinate Court, Tiruvannamalai, reversing the judgment and decree dated 31.12.2002 in O.S.No.1254 of 1995 on the file of the Additional District Munsif Court, Tiruvannamalai.) 1. Challenge in this second appeal is made to the judgment and decree dated 22.08.2005 passed in A.S.No.19 of 2003 on the file of the Principal Subordinate Court, Tiruvannamalai, reversing the judgment and decree dated 31.12.2002 passed in O.S.No.1254 of 1995 on the file of the Additional District Munsif Court, Tiruvannamalai. 2. The parties are referred to as per their rankings in the trial Court for the sake of convenience. 3. The second appeal has been admitted on the following substantial questions of law: (1) Whether the Lower Appellate Court is correct in law in going beyond the documents filed on either side in coming to the conclusion that the respondent is entitled to a declaration of his right to reach the street through the door in the backyard of the schedule property? (2) Whether the Courts below are correct in law in holding that the New Karkana Street is a public street totally overlooking the fact that no requisition as contemplated under Section 179 of the Tamil Nadu District Municipalities Act has been forwarded? (3) Whether the Lower Appellate Court is correct in declaring the respondent’s right to the street on the basis of Section 180-A of the Tamil Nadu District Municipalities Act when the street in question is a private street?” 4. Considering the scope of the issues involved between the parties as regards the subject matter lying in a narrow compass, it is unnecessary to dwell into the facts of the case in detail. 5. Considering the scope of the issues involved between the parties as regards the subject matter lying in a narrow compass, it is unnecessary to dwell into the facts of the case in detail. 5. The suit has been laid by the plaintiff against the defendant seeking for the declaration that he is entitled to reach the New Karkana street through the eastern door in the backyard of the plaint schedule property and to pass an order of mandatory injunction directing the defendant to remove the wall put up by him in front of the eastern wall of the plaint schedule property and thus preventing the plaintiff from using his eastern door to reach the New Karkana street, Tiruvannamalai, within the time fixed by the Court or in default to have the wall removed through the process of the Court. 6. The defendant resisted the plaintiff’s suit on various grounds. Considering the scope of the issues involved between the parties lying in a narrow compass, it is unnecessary to discuss the defence put forth by the defendant in detail. 7. Based on the materials placed on record by the respective parties and the submissions made, the Trial Court was pleased to dismiss the plaintiff’s suit. On appeal by the plaintiff, the first Appellate Court was pleased to set aside the judgment and decree of the Trial Court on the appreciation of the materials placed on record and thereby granted the reliefs in favour of the plaintiff as prayed for. Impugning the same, the defendant has come forward with the present second appeal. 8. That the plaintiff’s mother Jayalakshmi Ammal is the owner of the plaint schedule property is not in dispute and it is seen that she has bequeathed the suit property in favour of the plaintiff by way of a Will, which fact is also not in dispute as such. On the backyard of the plaint schedule property belonging to the plaintiff, the property belonging to the defendant lies. The parties are not in issue that the defendant’s property was originally owned by the plaintiff’s mother Jayalakshmi Ammal. Jayalakshmi Ammal is found to have acquired the said property from one Pushpanadha Pillai by way of a sale deed dated 02.11.1963 marked as Ex.B3. The parties are not in issue that the defendant’s property was originally owned by the plaintiff’s mother Jayalakshmi Ammal. Jayalakshmi Ammal is found to have acquired the said property from one Pushpanadha Pillai by way of a sale deed dated 02.11.1963 marked as Ex.B3. It is found that Jayalakshmi Ammal had alienated the abovesaid property in favour of one Gowri Ammal by way of a sale deed dated 28.09.1977, which document has come to be marked as Ex.B4. From Gowri Ammal the defendant had purchased the said property by way of a sale transaction dated 15.02.1981 marked as Ex.B5. The abovesaid facts are not put in issue by the parties concerned. It is seen that the defendant’s property lies on the eastern boundary of the plaintiff’s property. It is also not in dispute that the plaintiff’s property in part is abutting the New Karkana street on the eastern side. Seeking the right to access the New Karkana street through the door way fixed on the eastern side of his property and alleging that the defendant had restricted or prevented his use by putting up the compound wall to the full stretch of New Karkana street and thereby according to the plaintiff, he has been necessitated to lay the suit for necessary reliefs. It is also not in dispute that to the south of New Karkana street, the defendant’s property is situated. That apart, as could be seen from the Commissioner’s report and plan marked in the matter, one Balambal who is having the property on the northern side of the plaintiff’s property is also having some access to the New Karkana street and the said position is also not in dispute, as such. 9. According to the defendant, the plaintiff is not entitled to gain access through New Karkana street by claiming it as a matter of right, i.e., to have access to the said street through the eastern door way fixed in the property and accordingly put forth the defence that the plaintiff’s suit liable to be dismissed for want of any cause of action. Furthermore, according to the defendant, the New Karkana street has been formed by the site owners on either side of the New Karkana street as a private street/road for the usage of the said site owners and therefore, according to the defendant, the plaintiff is not entitled to seek any right to have access through the New New Karkana street by claiming the said right through the eastern door fixed in the property. 10. As abovenoted, the defendant had purchased his property from Gowri Ammal by way of Ex.B5 sale transaction. The materials placed on record would go to show that Gowri Ammal while purchasing the said property from the plaintiff’s mother entered into an agreement with her on 28.09.1977, which document has been marked as Ex.A2. Ex.A2 has been seriously challenged by the defendant. However, considering the recitals found in Ex.A2, the first Appellate Court is found to have analyzed the said document in detail and held that it had entered into between Gowri Ammal and the plaintiff’s mother and accordingly, on the basis of the recitals found in the same inasmuch as Gowri Ammal had permitted the access of the plaintiff’s mother through the property acquired by her till the New Karkana street is formed and accordingly, when the parties had admitted the formation and existence of the New Karkana street as at present, accordingly, determined that though Ex.A2 agreement could be held to be a genuine document, however, as the said document had been entered into between the parties concerned agreeing that it shall be in force only till the formation of the New Karkana street and as the New Karkana street has been admittedly formed, according to the first Appellate Court, the plaintiff would not be entitled to seek the reliefs as prayed for, based on the abovesaid document and on that premise held that the abovesaid agreement could only be taken as a piece of evidence in support of the plaintiff’s case, as such. Considering the reasons given by the first Appellate Court with reference to the acceptability of Ex.A2 agreement to a limited extent, no serious interference is required. Considering the reasons given by the first Appellate Court with reference to the acceptability of Ex.A2 agreement to a limited extent, no serious interference is required. The formation and existence of the New Karkana street has been earmarked only as a private road for the owners of the properties lying on either side of New Karkana street and the same is not available to the plaintiff, is the main defence projected by the defendant. As abovenoted previously the original owner of the defendant’s property is the plaintiff’s mother. Accordingly, as above seen, the plaintiff’s mother and the defendant’s vendor had entered into Ex.A2 agreement for gaining access to the said street portion by the plaintiff’s mother till the formation of New Karkana street and accordingly, it is seen that the plaintiff’s mother was having the right of entry through the street portion now formed as New Karkana street. 11. In addition to that, considering the Commissioner’s report and plan marked in the proceedings, it is seen that the New Karkana street is in existence and the defendant had not put up the construction in his entire property and on the other hand, left certain portion on the northern side for the formation of the abovesaid New Karkana street. The purchasers of the site on the northern side of the New Karkana street had also left certain space on their part for the formation of the New Karkana street. From the photographs marked in the proceeding as well the Commissioner’s report, it is found that the New Karkana street extends up to the backyard portion of the plaintiff’s property and the plaintiff is having a door way on the eastern backyard of his property. It is thus noted that the door way has been put up by the plaintiff to gain access to the street portion from the rear side of her property. Though, the western side of the plaintiff’s property is facing the street, when the plaintiff is entitled to have access through the door fixed in the eastern backyard for gaining access to the New Karkana street, the defendant cannot be allowed to put forth the contention that the plaintiff would not be entitled to seek the right to have access through the New Karkana street on the eastern side of his property. The same has also been considered by the first Appellate Court rightly by giving acceptable reasonings in favour of the plaintiff. 12. Considering the mortgage deed projected in the matter marked as Ex.A12 which go to show that the defendant had not mortgaged the entire extent of his property and also the town survey map marked as Ex.A13 which go to show that the new survey number has been assigned towards and for the formation of the said street and New Karkana street has been formed in the area by sub-dividing the survey number of the defendant’s property, in such view of the matter, it is found that the New Karkana street has been formed only for enabling the public to have access through the same and accordingly, the same has been left to the management or the maintenance of the municipality concerned. This position has been clearly admitted by the defendant during the course of the cross-examination and his admission has also been extracted by the first Appellate Court in its judgment and the same requires extraction for a better understanding of the issues involved in the matter: “TAMIL” 13. This position has been clearly admitted by the defendant during the course of the cross-examination and his admission has also been extracted by the first Appellate Court in its judgment and the same requires extraction for a better understanding of the issues involved in the matter: “TAMIL” 13. From the abovesaid admission of the defendant, as rightly determined by the first Appellate Court, it is seen that the defendant had consciously as well as the other site owners on the either side of the New Karkana street had consciously left certain space of their property towards the formation of New Karkana street and accordingly, the New Karkana street had come into existence and it is thus found that the defendant’s property as at present lies only to the south of New Karkana street and the defendant is not exercising an exclusive right over the street portion and furthermore, it is evident from the defendant’s abovesaid admission that after the formation of New Karkana street, it is only the municipality which is maintaining the same and accordingly, the defendant has also admitted that he has no objection in the municipality laying a Thar road in the New Karkana street and in such view of the matter, when there has been a clear dedication on the part of the plaintiff as well as the other site owners on the either side of the New Karkana street in allotting the portion of their respective properties for the formation of the street which has been sub-divided at present and admittedly, under the control of the municipality and accordingly, the defendant has also admitted that he has no objection in the municipality laying a Thar road in the street formed, in such view of the matter, the first Appellate Court has rightly noting the definition of street” as provided under the Tamil Nadu District Municipalities Act, as well as further noting that when the space has been dedicated by the private owners for the formation of the street/road and the street having been entrusted to the municipality for maintenance, rightly raised the presumption that the said street so formed would only be a public street and the position being as above, the defendant cannot be allowed to contend that except the site owners on the either side of the New Karkana street, no one including the plaintiff has any right to pass through the said street and in such view of the matter, it is found that as rightly determined by the first Appellate Court, the street having obtained the character of a public street, therefore, neither the defendant nor the other site owners who had earmarked a portion of their properties for the formation of the street, can be allowed to lay a claim of title to the same as belonging to them exclusively. 14. The above position of law could also be gathered from the decision of the Apex Court reported in (1993) 4 SCC 69 , wherein the Apex Court has clearly held that when there is a dedication of private space to the public by owner essential to constitute street” and the dedication can be interfered from long uninterrupted user by public and by such dedication, owner surrenders his right to the space and when the said street is declared a ‘public street’ by Municipal Committee, owner ceases to have any right to it and accordingly, based on the abovesaid position of law outlined by the Apex Court, when the defendant has by his own volition permitted a portion of his property to be converted into a street, then he has no vested right over the same whatsoever and therefore, the defendant cannot be allowed to contend that the plaintiff is not entitled to use the said street by gaining entry through the eastern door of his backyard portion. The position of law with reference to the above subject has been outlined by the Apex Court in the above decision as follows: Municipalities-Punjab Municipal Act, 1911-Ss.3(13)(a) and 171(4)-Public street-Dedication of private space to the public by owner essential to constitute ‘street’-Dedication can be inferred from the long uninterrupted user by public-By such dedication, owner surrenders his right tot he space-When such street is declared a ‘public street’ by Municipal Committee, owner ceases to have any right to it-Verandah in front of appellant’s shop adjoining verandahs of other shops making a continuous passage for customers in Connaught Circus, New Delhi and used for two decades for passing and repassing by members of the public-Verandah declared as ‘public street’ by Municipal Committee under S.171 (4)-Held, appellant impliedly dedicated the verandah to the public and after the declaration of it as “public street” under S.171 (4) appellant had no right to claim it to be its private property and also to claim compensation-Easement Act, 1882, S.15- Constitution of India, Art.300-A-Compensation Held: Before a space can be held to be a street” under the Act, there must be a dedication by the owner to the public. In the present case the appellant has dedicated the verandah in dispute to the public use. In the present case the appellant has dedicated the verandah in dispute to the public use. It is being used for passing and repassing by the public at large and as such is a street” in terms of Section 3(13)(a) of the Act. The appellant has, thus, surrendered his rights in the property for the benefit of the public. The user of the property is and always shall be with the public. Any space, passage, verandah, alley, road, or footway dedicated to public by the owner for passing and repassing, partakes the character of a street” and no longer remains under control of the owner. The owner has not right at all times to prevent the public from using the same. When the owner of the property has, by his own volition permitted his property to be converted into a street”, then he has no right to claim any compensation when the same property is made a public street” under Section 171(4) of the Act. The ‘streets” are meant for public use. It is necessary that the streets” which are being used by the public are frequently repaired and are also saved form public abuse. In the absence of any regulatory control, the hawkers and squatters are likely to occupy the streets” thereby creating nuisance for the public. In a situation like this it is necessary for the Committee to step in and exercise it powers under Section 171(4) of the Act. The Committee exercises regulatory control and is responsible for the repair and unkeep of the public streets”. The verandah in dispute is a street”. It has been declared as a public street” for the better enjoyment of the public-right in the said street. When a street” is declared as public street” the owner of the property comprising the said street” has not right to claim compensation.” 15. The verandah in dispute is a street”. It has been declared as a public street” for the better enjoyment of the public-right in the said street. When a street” is declared as public street” the owner of the property comprising the said street” has not right to claim compensation.” 15. In the light of the abovesaid position, when it is found that the plaintiff’s predecessors in interest had been using the street portion by gaining access through the eastern door in the backyard area and after the formation of a pucca road, the plaintiff is found to be entitled to use the street as a matter of right as above pointed out and after the dedication of the space for the formation of the road and when admittedly, the municipality concerned is found to be having the control and maintenance of the same in all aspects, the defendant cannot be allowed to prevent the plaintiff from gaining access to the said street through the eastern door way fixed in the backyard of his property. 16. The defence has also been put forth that the plaintiff has not come with the clear description of the property with reference to which he has sought for the relief of mandatory injunction. However, the first Appellate Court has rightly analyzed the abovesaid point and accordingly, noting that on a reading of the plaint averments and reliefs sought for by the plaintiff and the lie of the properties belonging to the respective parties and the materials placed on record and when admittedly, the formation and existence of the New Karkana street is not in dispute between the parties and when the said street extends up to the eastern door way of the plaintiff’s property i.e., the backyard portion of the plaintiff’s property and the door had been erected by the plaintiff’s predecessors’ interest only for gaining access through the same to the street portion, in such view of the matter, there is no ambiguity in the description of the property with reference to which the plaintiff seeks to enforce the relief of mandatory injunction sought for by him. The reasons given by the Trial Court for dismissing the plaintiff’s case on the above factors, as rightly determined by the first Appellate Court, do not merit acceptance in any manner. 17. The reasons given by the Trial Court for dismissing the plaintiff’s case on the above factors, as rightly determined by the first Appellate Court, do not merit acceptance in any manner. 17. For the reasons aforestated, the judgment and decree of the first Appellate Court upholding the plaintiff’s case are found to be based on the proper appreciation of the materials placed on record, in the right perspective, both on factual matrix and as well as on legal aspects, pertaining to the same, hence no interference is required in any manner and accordingly, the judgment and decree of the first Appellate Court are confirmed. 18. In the light of the abovesaid discussions, in my considered opinion, no substantial question of law is found to be involved in the second appeal. Be that as it may, the substantial questions of law formulated in the second appeal are accordingly answered against the defendant and in favour of the plaintiff. In conclusion, the second appeal fails and is accordingly, dismissed. No costs. Consequently, connected miscellaneous petition, if any, is closed.