High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDate: 29.03.2007CORAM:THE HON'BLE MR. JUSTICE P.JYOTHIMANISecond Appeal No.1158 of 20061.P.shanmuga Sundaram2.M.Palanisamy3.M.Ramasamy... Appellants(Defendants)Vs.M.Periasamy... Respondent(Plaintiffs)PRAYER: Second Appeal against the Judgment and decree of thePrincipal District Judge, Namakkal made in A.S.No.366 of 2002dated 30.07.2004 confirming the judgement and decree of theAdditinoal District Munsif's Court, Namakkal made in O.S.No.606 of1993 dated 31.07.1997. For Appellants: Mr.C.Jagadesh For Respondent : Mr.T.DhanyakumarJ U D G M E N TThe unsuccessful defendants, who are representing themselvesand representing the Villagers of Kariaperumalpudur,Sivanaikenpatty Village, Namakkal Taluk in both the Courts beloware the appellants. The plaintiff filed the suit for a mandatoryinjunction to remove RSTU construction portion stated to have beenconstructed on the Panchayat road and for a declaration thatneither the defendants nor the Villagers have any right toobstruct access to the road from any point at the CD level of theplaintiffs property and also for an injunction from putting up anyobstruction. 2. The case of the plaintiff is that on the Eastern side ofhis property comprised in Survey No.291/2AA there is a Municipalroad running North to South and just in front of his access to theroad from his property. The defendants have put up theconstruction, wherein they are keeping certain articles andmaterials belong to the temple of the Village. Since it obstructs https://hcservices.ecourts.gov.in/hcservices/ his right of free iggress and egress to his property and on thebasis that the said construction has been put up on the Municipalroad, which is used as a road by public, the suit was filed. Thedefense by the defendants was that it was not a Panchayat road butit was a Natham Puramboku and the Villagers are using it for thepurpose of keeping the materials belong to the temple of theVillage. 3. An Advocate Commissioner was appointed, who has submittedhis report and he found that the construction, which is inquestion was stated to have been effected in 1993 to which thedefendants have not filed any objection. Both the Trial Court aswell as the First Appellate Court on appreciation of the factualposition, have found that the suit property was not a NathamPurampoke, as claimed by the defendants and it is a constructionput up on the Panchayat road and on that basis granted decree ofmandatory injunction to remove the unauthorized construction. 4. While considering the averment made on behalf of thedefendants that the plaintiff being one of the Villagers has alsopaid subscription of Rs.100/- for maintenance of the Village andit is based on the said subscriptions, the amounts are spent forTemple purpose including to putting up construction and therefore,the plaintiff is estopped from raising such an issue aboutunauthorized construction, the Trial Court as well as theAppellate Court has come to a conclusion that even though thedefendants have stated that the plaintiff paid subscription ofRs.100/-, no record has been produced before the Court to show tothat effect and on that basis the principle of estoppel was turneddown. In any event, it remains the fact that even assuming thatthe plaintiff has paid such subscription for the purpose ofVillage, it does not mean that the plaintiff loses his right ofpreventing even public from putting any obstruction on the road,especially the same is in front of his house. Therefore, I do notthink that the principle of estoppel will apply on the facts andcircumstances of the case. 5. The reliance placed on by the learned counsel for theappellants on the judgement rendered by this Court in Muthammal(died) and others Vs. State of Tamil Nadu and another reported in2006(3) MLJ 216 to the effect that if the disputed property is agrama natham, there was no question of issuance of any patty orentry made in Adangal etc. and the first occupier is entitled as aowner of the portion and in such circumstances, the decisionarrived at by the Courts below ,that no evidence has been producedby the defendants to show that the place is a grama natham, cannotbe sustained, is not acceptable. https://hcservices.ecourts.gov.in/hcservices/

6. As rightly pointed out by the Courts below, the P.W.2,who is the adjacent owner has in fact been examined, who hasproduced the chitta and adangal in respect of carttrack, whichaccording to him means the Panchayat road on which the disputedconstruction has been put up and it was not even the case of thedefendants, while cross examining the said P.W.2 that it was not acarttrack and it was a Natham puramboke. 7. Even in cases where there was an assignment of a portionused as a public road, this Court has held that such assignmentwill be only against the public interest and the plaintiff, who isowner of the property facing the road, which has been assigned hasright to approach the Civil Court, ignoring the assignment for thepurpose of removal construction either individually or by seekingassistance of local authority. That was the judgement rendered inK.Mani Vs.L.Indumathi reported in 1998(2) MLJ 62 wherein thisCourt has held as follows: "22. Learned counsel for the appellant contended thatsubsequent to the institution of the suit, governmenthas assigned the land in favour of the defendant as perorder of assignment dated 13.02.1992. According to him,in view of the subsequent event, he is entitled to holdon to the property as owner. I do not think this newcontention can also prevail. If the law prohibits theGovernment and the local authorities from causingobstruction to the Highway or to the public street, theassignment of that land to a private individual also hasto fail for the same reason. The interest of thegeneral public cannot be taken away by issuing anassignment order. If the obstruction which was inexistence still continues, the plaintiff can ignore theassignment and remove the obstruction caused eitherindividually or by seeking the assistance of the LocalAuthority which is in the position of a Trustee so faras the general public is concerned. Any order ofassignment will be in derogation of that right and thesame cannot be given effect to, when it affects theright of a citizen. When the plaintiff has a right ofaccess from any portion of the highway or public street,the Government is also bound to preserve that right as acustodian of Government lands, especially publicstreets."8. While considering about the right of the plaintiff toestablish the same through Court, who have access to the road wayfrom all points on the boundary on their land ,this Court whileconsidering the same in Bharathamatha Desiya Sangam, Madhavaramand another Vs. Roja Sundaram and others reported in AIR 1987Madras 183 has held: https://hcservices.ecourts.gov.in/hcservices/ "Owners of houses of premises abutting a roadway areentitled to have access to that roadway from all pointson the boundary of their land and if any obstruction iscaused over the road margin securing such access, theperson entitled to have such access can certainlyenforce that right."9. Even assuming that in between the construction of theplaintiff’s house and the alleged construction put by thedefendants on the Panchayat road there is a space, that cannot beput against the respondents as a ground for declining to grant himrelief especially on the facts and circumstances wherein, it hasbeen established that the offending construction has been put upby the defendants on the Panchayat road with a clear finding thatit has not been proved to be a Natham Puramboke. 10. Therefore, the contention raised on behalf of thedefendants as if there is a gap between the house of the plaintiffand the passage and therefore, the construction on the passagewould not affect the plaintiff is unsustainable as correctly foundby both the Courts below. In view of the same, there isabsolutely no question of law involved much less substantialquestion of law and the Second Appeal fails and the same isdismissed. No Costs. nbjSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Principal District Judge, Namakkal.2. The Additional District Judge, Namakkal.+ 1 cc to Mr. T. Dhanyakumar, Advocate, SR No.20215+ 1 cc to Mr. C. Jagadish, Advocate, SR No.20732 Order inS.A.No.1158 of 2006VC(CO)SR/19.4.2007