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Judgment
R. Mala, J.—This Second Appeal has been filed against against the judgment and decree made in A.S.No.68 of 12003, dated 09.02.2004, on the file of the District Court, Ramanathapuram confirming the Judgment and decree made in O.S.No.236 of 1996, dated 24.06.2002, on the file of the Principal District Munsif Court, Ramanathapuram.
The gist and essence of the plaint is as follows:
The plaintiff has purchased the property bearing G.N. Survey Num ber. 324/365 measuring to an extent of 1484 sq.ft through various sale deeds dated 03.07.1980, 07.05.1984, 18.12.1985, 12.10.1987 and 13.06.1988. The property has been shown as "ABFEA" in the rough sketch and the entire property measuring to an extent of 31.3/4 feet east-west and 46.9 ft north-south. On the north of the property a lane is running east-west and on the southern side of the extent lies a pathway and also a common well. The suit property is a portion of the pathway running east west where the well is situated. The plaintiff has constructed a house that has been mentioned as "CDEF". The remaining portion "ABCD" is the backyard. The portion marked as "AIHJ" has been encroached by one Mohaideen Abdhl Khader and he has put up a compound wall and a criminal case has been initiated against him by the third respondent and he was fined with Rs. 200/-. Against that he preferred an appeal which was also dismissed. Even though a direction has been given to remove the encroachment made by the above said Mohaideen Abdul Khader, he has not removed the same. In the property mentioned as "BGHI" in the rough sketch encroachment has been made by the first defendant and he has put up one hut and he also closed the common wall situated in that place. So the plaintiff was restraining from approaching the steet on the southern side. The plaintiff has obtained a plan approval from the third defendant office for constructing a new house in "ABCD" Portion. Except this pathway, no other pathway for the plaintiff to approach the abovesaid property. The plaintiff has approached the third defendant for removal of the encroachment many times. Hence the third defendant issued a notice to the first defendant requesting him to remove the encroachment and since the first defendant is an influenced person in that area, he failed to do so. The plaintiff was in a handicapped position to bring the construction material to build his new house. Hence the plaintiff has come forward with the suit for mandatory injunction directing the first defendant to remove the hut put by the first defendant in the suit property and for permanent injunction restraining the first defendant or his men from in any way changing the physical features of the suit property till the removal of the encroachment and for costs.
The gist and essence of the written statement filed by the first defendant is as follows:
The suit is not maintainable. The suit survey number is not correct. The western portion has encroached by one Mohaideen Abdul Khader, which is just opposite of this Plaintiff''s property. He is the father in law of the plaintiff. He has not filed any suit. The plaint plan is not correct. The suit property has been given to Muslim Women''s prayer hall. The well has already been dilapidated and there is no well in that place. The suit properties are belonging to Keelakarai Town Panchayat and the plaintiff is not the owner of the suit property. It is false to contend that this the only way for the plaintiff to reach the property and the same is not correct. The plaintiffs and first defendant are having that prayer hall for more than the statutory period. As per the resolution passed by the third defendant dated 07.11.1985, the property has been given to this defendant with malafide intention, the suit has been filed. There is no cause of action for the suit. The suit is barred by limitation. Hence, the first defendant prayed for the dismissal of the suit.
The gist and essence of the written statement of the third respondent, which was adopted by the second defendant is as follows:
The plaintiff has to prove the sale deed mentioned in para 3 of the plaint. One Mohaideen Abdul Khader encroahced "AIHJ" and put up constructions in that place. The first defendant has encroached "BGHI" portion and put up a shed where the muslim women are doing their prayers. He gave a petition on 26.04.1985 requesting the third defendant to give that land to him and a resolution was passed regarding the same by the third defendant. Till date prayer are being conducted in the suit property. Only a resolution has been passed by the third defendant and since the first defendant has not paid any fee for the thatched shed, the third defendant issued a notice to the first defendant to vacate the place. But he has not removed the encroachment. Hence, prayed for removal of the encroachment by the first defendant.
The learned Trial Judge after going through the averments made in the plaint as well as the written statements, framed five issues and after considering the oral evidence of P.W.1, D.W.1, and documents Ex.A1 to Ex.A10,Ex.B1 to Ex.B13 and Ex.C1, the suit is decreed for the relief of mandatory injunction and other respects the suit is dismissed. Against that the first defendant has preferred an appeal in A.S. No. 68 of 2003 and the first appellate Judge has framed three points for consideration and after considering the entire material records, the first appellate court dismissed the appeal. Against the same the first defendant has preferred the present Second Appeal before this Court.
This Court after considering the entire material records, admitted the second appeal on the following substantial questions of law:
Whether the suit for mandatory injunction is maintainable for removing the thatched shed in a public street which was put up with the permission of the Authority by passing necessary resolution without questioning the same?
Whether an individual can maintain a suit u/s 91 of the C.P.C without obtaining leave from court?
Whether the suit for mandatory injunction is maintainable against a person who is in permissive occupation in a portion of the public street?
Whether the courts can grant relief of mandatory injunction in favour of the plaintiff especially when he has not come forward to depose?
The first respondent as a plaintiff filed a suit for mandatory injunction stating that he purchased the suit property "ABFEA" in the rough sketch. On the north of the property, a lane is running east-west and on the southern side of the extent lies a pathway and also a common well. The first defendant has encroached upon a portion "BGHI" and put up a hut and using that as a prayer hall for muslim women. Hence, he filed a suit for mandatory injunction directing the first defendant to remove the hut put up by the appellant in the suit property and for permanent injunction restraining the first defendant or his men from in any changing the physical features of the suit property till the removal of encroachment.
But, the trial court has considered all the aspects and decreed the suit and against that the first defendant had preferred an appeal and that also has been dismissed. Aggrieved by the same, the first defendant has come forward with the present Second Appeal.
Substantial question No.2:
The suit property is a part of the road. It is an access to all persons. Adjacent to the road, the appellant herein has purchased the said property under Ex.A3, Ex.A4 and Ex.A5. Admittedly, he put up his house in one portion and on the remaining portion has been kept vacant. He got an approved plan as per Ex.A6 for construction of his house. He paid fee for the renewal of the plan and that has been marked as Ex.A7. Photographs has been filed which was marked as Ex.A8 and Ex.A9. A Commissioner has also been appointed and he also filed his report. In these circumstances, since a concurrent finding has been given, a substantial question has been raised that the first respondent herein cannot maintain a suit u/s 91 of C.P.C., without obtaining leave from the Court.
Section 91 of the CPC states as follows:
Public nuisance and other wrongful act affecting the public--((1) In the case of a public nuisance or other wrongful act affecting, or likely to affect, the public, a suit for a declaration and injunction or for such other relief as may be appropriate in the circumstances of the case, may be instituted.--
(a) by the Advocate-General, or
(b) with the leave of the Court, by two or more persons, even though no special damage has been caused to such persons by reason of such public nuisance or other wrongful act.)
Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions.
As per Section 91 of C.P.C., it is clear that an individual has got every right to sue for special damages, even he was aggrieved by public nuisance. A suit u/s 91 of C.P.C is that the plaintiff are not required to prove special damages to them, nor the section deprives other independent right of the person who have suffered the damage. A person whose house abates on public road can sue without leave of the court u/s 91 of Civil Procedure Code. In the present case, a Commissioner has been appointed and he filed his report under Ex.C1. It shows that a thatched shed has been put up by the appellant which is closely adjacent to the first respondent''s vacant site. If the shed was allowed to be in existence, definitely the first respondent could not have free access to the street which is situated immediately on the southern side and in such circumstances, this substantial question of law is answered against the appellant. The suit is maintainable without obtaining leave from the court u/s 91 of C.P.C.
Substantial questions 1 and 3:
It is pertinent to note that the appellant herein has raised a plea that the suit property is belonging to the third defendant/third respondent Keelakarai Town Panchayat, he obtained a permission from the Panchayat and then only he put up this thatched hut, which has been used as a prayer hall for muslim women. A resolution has been marked as Ex.B3. But at this juncture, this Court has to consider the citation relied upon by the appellant in K.V.K. Janardhanan Vs. State of Tamil Nadu and Others, and it reads as follows:
It is clear from the ratio laid down in the decisions that neither the Government nor the Municipality or any local body has got every right to put up any obstruction over the public street so as to prevent it from having any access to the adjoining land. It has been repeatedly held that the owner of the land adjoining the public street has got a right of access at every point where his or her land adjoins public street.
In the light of the decision stated supra, the third respondent has no right to give permission to put up a construction in the road. So the respondent has got the relief of mandatory injunction.
Substantial question No.4:
It is true that the appellant has filed the suit and subsequently he executed a power deed as per Ex.A1 in favour of one Ansari. He was examined as P.W.1 and one Narayana perumal as P.W.2. It is pertinent to note that a Commissioner has been appointed and he filed his report which is marked under Ex.C1 and Ex.C2. Admittedly, the suit property is a part of the road. Here, he appointed his power agent. The power agent deposed on behalf of the plaintiff and document would clearly prove that the first respondent is possessing the property abetting the road. But the third respondent has given permission to put up a hut to the first appellant herein. It is against law as per the decision reported in 1994 1 1 W 470 and K.V.K. Janardhanan Vs. State of Tamil Nadu and Others, and that the respondent herein the owner of the land adjoining the public street has got a right of access at every point where his or her land adjoins public street. It has been repeatedly held that the owner of the land adjoining to the public street has got a right of access at every point where his or her land adjoins public street. But the first respondent has put up a hut and obstructing his access to the public road. That too, even though he obtained permission for construction of a building, because of the hut put up by the appellant, he is unable to transport the construction material to his site. Photographs marked under Ex.A8, Ex.A9, Ex.B1, Ex.B2 and Ex.B4 to Ex.B8 has clearly proved that it is adjoining to the road which has caused hindrance to the first respondent herein. So the first respondent is entitled to the relief of mandatory injunction even though he was not come forward to depose about his case.
As narrated above, the first respondent herein has proved his case and that without obtaining leave from the court, the suit is maintainable u/s 91 of C.P.C. Since the first respondent''s property is adjacent to the public street, the third respondent/Keelakarai Town Panchayat has no right to give permission to obstruct the road as per the decision reported in O.N. Natarajan and Another Vs. The Municipal Council, and K.V.K. Janardhanan Vs. State of Tamil Nadu and Others, .
On consideration of the material evidence and perusal of the documentary and oral evidence have amply satisfied that the trial court and the first appellate court has arrived at a correct conclusion that the owner of the property adjacent to the road is entitled to enter into his house and has got a right of access at every point of time. Since the appellant herein has put up a hut in the road which prevents his right of access to the property. Hence the first respondent is entitled to the relief of mandatory injunction, so the trial court as well as the first appellate court has considered all the aspects in proper perspective and come to the correct conclusion. Hence, there is no infirmity in the order passed by the trial court and the first appellate court, so it does not warrant any interference by this Court.
In the result, the Second Appeal is dismissed. The judgment and decree passed by the trial court as well as the first appellate court are hereby confirmed. No costs. Consequently, connected Civil Miscellaneous Petition is dismissed.