Bel Motorsrep. by 1. R.Ravi v. Uthagamandalam Municipalityrep. by its CommissionerNilgiris District

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 3.4.2008C O R A MThe Honourable Mr. Justice M.JAICHANDRENS.A.No.1758 of 1996Bel Motorsrep. by 1. R.Ravi2. R.Mani .. AppellantsVersusUthagamandalam Municipalityrep. by its CommissionerNilgiris District .. Respondent- - - - -PRAYER: This second appeal has been filed against thejudgment and decree dated 5.7.1996 passed in A.S.No.64of 1995, on the file of the Sub Judge, Uthagamandalam,Nilgiris District allowing the appeal and dismissedthe suit in O.S.No.31 of 1993, on the file of theDistrict Munsif, Uthagamandalam. For Appellants : Mr.P.N.Raman For Respondent : Mr.V.Subbarayan J U D G M E N TThis second appeal has been filed against the judgment anddecree, dated 5.7.1996, passed in A.S.No.64 of 1995, on the fileof the Subordinate Judge, Uthagamandalam, Nilgiris District,allowing the appeal and dismissing the suit in O.S.No.31 of 1993,on the file of the District Munsif, Uthagamandalam. 2. For the sake of convenience, the parties are referred toas they have been arrayed in the original suit. 3. The plaintiffs in the suit O.S.No.31 of 1993, are theappellants in the present second appeal. The plaintiffs hadfiled the suit praying for a judgment and decree to grant a https://hcservices.ecourts.gov.in/hcservices/ permanent injunction restraining the defendant and its men,servants, agents and subordinates from in any way altering theexisting right of way in survey No.811/3 by putting upconstruction thereon from Ettins Road to Bell Motors of theplaintiffs in survey No.812/1A1A1C1A1A1A1 of Uthagamandalam Townand for costs.4. It has been stated in the amended plaint filed on behalfof the plaintiffs that the plaintiff firm is running a workshopin the land having an extent of 7,200 square feet in surveyNo.812/1A1A1C1A1A1A1 of Uthagamandalam Town, with door No.171.The possession of the land had been taken by the plaintiffs fromone Janagiammal of Palakad. Thereafter, the plaintiffs have beenin possession and enjoyment of the property, including the rightof way to the said property. The plaintiffs are carrying on thebusiness of mechanical works and also tinkering, painting,servicing and welding works for motor vehicles. 5. The original owner of the land was utilising the adjacentland in survey No.811/3 of Uthagamandalam Town having the rightof way from Ettins Road to Bell Motors. The existing pathway fromEttins Road to Bell Motors which is 10 feet x 100 feet and it hasbeen used by the plaintiffs and their predecessor in title for along time. 6. It is submitted by the plaintiffs that the only way toreach the property of the plaintiffs is the said pathway andtherefore, they are legally entitled to utilise the same as amatter of right. Since the defendant is constructing a shoppingcomplex in survey No.811/3 of Uthagamandalam Town, the pathwayused by the plaintiffs is likely to be blocked. Once the pathwayis blocked, the plaintiffs would lose the right of way to surveyNo.812/A1A1A1A1A1A1C to reach door No.172 and the property inoccupation of the plaintiffs would become useless causingirreparable loss and hardship to the plaintiffs and the losscannot be compensated in terms of money.7. A written statement had been filed by the defendantdenying the claims made by the plaintiffs. It has been furtherstated that the land in R.S.No.812/A1A1A1A1A1A1C did not belongto Janagiammal nor has she transferred the same to theplaintiffs, as alleged in the plaint. The oral transfer of animmovable property, as claimed by the plaintiffs, is not valid inlaw. Hence, no claim of right relating to the said property canbe sustained.8. It has also been stated that R.S.No.811/3 is not a roadnor is it adjacent to the suit schedule property. It is not nearEttins Road. Hence, the claims of the plaintiffs that the https://hcservices.ecourts.gov.in/hcservices/ original owner was using the land as a right of way is untenable.The claim of the plaintiffs that they are carrying on businessrunning a workshop in door No.171 of Ettins Road cannot give themany right of way in the suit schedule property. Further, theplaintiffs are having access to their workshop through EttinsRoad.9. It has also been stated that the property described inthe schedule of the plaint does not exist and R.S.No.811/3 is nota road. In fact, R.S.No.811/3 has been earmarked for theconstruction of a shopping complex under the "Hill AreaDevelopment Programme". In such circumstances, the suit is to bedismissed with costs. 10. The trial Court, based on the averments made in theplaint filed by the plaintiffs and the written statement filed onbehalf of the defendant, had framed the following issues forconsideration:-"(1) Whether the plaintiffs are entitledto the relief of permanent injunction asprayed for by them?(2) What other reliefs?"11. Considering the issues raised for consideration, thetrial Court had decreed the suit in favour of the plaintiffs. Itwas found by the trial Court that the defendant had not stated inthe written statement that the plaintiffs are encroachers insurvey No.811/3. According to the report of the Commissionerappointed by the Court the plaintiffs do not have any alternatepathway to the property in their occupation and enjoyment. Insuch circumstances, the plaintiffs are having the right ofeasement due to long usage and necessity.12. Aggrieved by the said judgment and decree of the trialCourt, dated 28.4.1995, made in O.S.No.31 of 1993, on the file ofthe District Munsif, Uthagamandalam, the defendant had filed anappeal in A.S.No.64 of 1995, before the Subordinate Judge,Uthagamandalam, Nilgiris District. 13. Based on the claims made by the plaintiffs as well asthe defendant and the evidence available on record, the firstappellate Court, had framed the point for consideration as towhether the appeal is to be allowed.14. The first appellate Court, while setting aside thejudgment and decree of the trial Court, had found that the theproperty in Survey No.812/3, belonging to the defendant, wassituated between the property in which the plaintiffs were https://hcservices.ecourts.gov.in/hcservices/ running their business, under the name and style of Bell Motorsand Ettins Road.15. The property said to be in possession of the plaintiffswas not adjacent to Ettins Road. The first appellate Court hadheld that there was no evidence to prove the claim of theplaintiffs that they had purchased the suit schedule mentionedproperty from Janagiammal and that the plaintiffs are havingtitle over the said property. In the absence of evidence, theplaintiffs had not proved their possession or ownership of thesuit schedule mentioned property. Since the plaintiffs could notprove that they had right to occupy and enjoy the suit schedulementioned property, it was held by the first appellate Court thatthe plaintiffs can only be considered as encroachers. Such anencroacher cannot claim any right against the lawful owner.Therefore, the relief sought for by the plaintiffs against thedefendant cannot be granted. Further, the plaintiffs have notbeen in a position to show that the plaintiffs and theirpredecessor in title have been using the pathway for a long timeas claimed by them. 16. The first appellate Court had found that the plaintiffshaving been examined as P.W.1, had admitted in his evidence thatthere was no written agreement between the plaintiffs andJanagiammal and that there was no consideration determined orpaid. From the evidence of the Village Officer, namely,S.Subramani, examined as D.W.2, it was found that the propertyhad belonged to one Narayana Menon, and Janagiammal had no rightin the property. There was no documentary proof to show thatJanagiammal was the owner of the property. When Janagiammal hadno right in the property in question, the plaintiffs, who areclaiming rights in the property through her, cannot be said tohave any valid right or title in the suit property. The documenttransferring an immovable property, having a value of more thanRs.100/-, ought to be registered to have evidentiary value in theeye of law. Thus, the plaintiffs had failed to show any suchproof to substantiate their claims. From the statements of P.W.2,made during his cross-examination, it is clear that there is analternate pathway in Ettins Road, on the southern side of thesuit property. In such circumstances, they cannot have any rightof easement as held by the trial Court. 17. The second appeal is admitted on the followingsubstantial questions of law:-"1. Whether the appellate Court can gointo the question of title when the suit wasfiled only for injunction. https://hcservices.ecourts.gov.in/hcservices/ ii) Whether the appellate Court was rightin ignoring the Commissioner's report who isan officer of the Court when it was notobjected by the other side?(iii) Whether the appellate Court wasright in holding that the plaintiff has notpleaded for necessity when in para 6 of theplaint it is specifically stated "theplaintiffs submit that this is the only way toreach property of the plaintiffs and theplaintiffs are legally entitled to utilise thesame as their right of way."18. The learned counsel appearing for theappellants/plaintiffs had contended that the suit pathway is theonly access to the plaintiffs' property and the first appellateCourt ought to have held that the plaintiff had the right ofeasement of necessity in the suit pathway as held by the trialCourt. 19. It had also been contended that the lower appellateCourt had erred in deciding the issues relating to the titlewhile the plaintiffs had filed the suit only for the relief ofpermanent injunction. Since the plaintiffs had no other pathwayto reach the property in their occupation and enjoyment, thefirst appellate Court ought to have confirmed the findings of thetrial Court.20. The learned counsel appearing for therespondent/defendant had submitted that the trial Court hadcommitted the error in decreeing the suit as prayed for by theplaintiffs. The plaintiffs had not established their rights overthe suit land, either by documentary or by oral evidence.Therefore, the plaintiffs are only encroachers and they have noright to claim the right of easement in the property belonging tothe defendant. Since the plaintiffs are having alternate pathwayto reach the property said to be in their possession, the rightof easement of necessity does not arise. The first appellateCourt was right in rejecting the claims of the plaintiffs. 21. The learned counsel appearing on behalf of theappellants/plaintiffs had relied on the following decisions insupport of his contentions:21.1. In GOVINDA ASARI Vs. KANCHEEPURAM MUNICIPAL COUNCIL(1981 I M.L.J. 336), it was held as follows: https://hcservices.ecourts.gov.in/hcservices/ "19. The mere vesting of the publicstreet in the Municipal Council does notconfer any power on the Municipal Council totreat it as a private property of theMunicipality, and the power to close anypublic street temporarily or permanently, doesnot imply a power to cause obstruction to theuse of the public street by the ownersadjacent to the same. The defendant-Municipality cannot exercise any right overthe public street except such as areauthorised by law. 20. The owners of houses abutting on apublic street have right of access to and fromthe public street, and if anything is done bythe Municipality to interfere with the rightsof such owners, the owners have an actionableclaim."21.2. In MANBHUM DIST. BOARD Vs. B.N.RLY. CO. (A.I.R.(32)1945 PATNA 200), it was held that where a roadside land is onlyunder the control and administration of the District Board, theBoard holds it for the purpose of maintaining the road and cannotdivert it for any other use. The Board cannot lease it for thepurpose of putting up permanent building thereon. The right ofaccess to the highway at all points where a land adjoins thehighway belongs not only to the owner of the land but also to theoccupier and the occupier can sue for removal of an obstructioninterrupting his right of access to the highway. The fact thatthe owner or occupier of adjacent land has fenced it off orraised a wall for his convenience or opened a gateway on theother side cannot affect his right of access to the highway asaforesaid. 21.3. In ACME TILES & BUILDING PRODUCTS Vs. B.SUDARSHAN(1993 (3) ALT 359), it was held that it is a well settledprinciple of law that a person in possession of the property tothe knowledge of the landlord at the time when he had occupiedthe said land, cannot be evicted otherwise than in due course oflaw. Even a trespasser who is in continuous possession since along time prior to and on the date of the suit, can maintain asuit for injunction. 22. Considering the submissions made by the learned counselsappearing for the plaintiffs as well as the defendant and in viewof the evidence available on record, this Court is of theconsidered view that the plaintiffs have not shown sufficientcause or reason to interfere with the findings of the first https://hcservices.ecourts.gov.in/hcservices/ appellate Court in A.S.No.64 of 1995. The plaintiffs have notbeen in a position to show that they had valid title, with regardto the property said to be in their possession and enjoyment inwhich they are running a business. Further, sufficient evidencehad not been shown to prove that the plaintiffs and theirpredecessor in title have been using the pathway for a long time,as claimed by the plaintiffs. 23. In such circumstances, it cannot be said that theplaintiffs have easementary right to use the pathway said to bein the property belonging to the defendant. Hence, the secondappeal stands dismissed, confirming the judgment and decree,dated 5.7.1996, passed in A.S.No.64 of 1995, on the file of theSubordinate Judge, Uthagamandalam, Nilgiris District. No costs. LanSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Sub Judge, Uthagamandalam, Nilgiris District2. The District Munsif, Uthagamandalam3. The VR Section, High Court, Madras.+ 1 cc to Mr. P. N. Raman, Advocate SR No. 18758S.A.No.1758 of 1996SSV(CO)SR/16.5.2008