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2007 Supreme(Mad) 369
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE A.C. ARUMUGAPERUMAL ADITYAN
The District Collector South Arcot Vallalar District Cuddalore & Others
Versus
Thangaraj
Second Appeal No.298 of 1997
Decided On : 29-01-2007
For the Appellants:R. Revathy, Govt. Advocate (CS). For the Respondent:R. Muralidharan, Advocate.
The central legal point established in the judgment is the plaintiff's right of way over the Government's land and the unauthorized acts of the Municipality in putting up structures on public pathways.
Headnote:
right of way - property dispute - [Section 80 CPC, Town Panchayat plan, Bharathmatha Desiya Sangam Madhavaram] - The court discussed the plaintiff's right of way over the Government's land, the existence of alternative access roads, and the unauthorized acts of the Municipality in putting up structures on public pathways. The court allowed the appeal with modifications, directing the defendants not to put up any construction or fence that would prevent the plaintiff from using the road in front of the lodge.
Fact of the Case:
The plaintiff, a Member of the Legislative Assembly, sought a declaration of title and mandatory injunction for access to his lodge. The trial court dismissed the suit, but the first appellate court allowed the appeal, decreeing the suit. The defendants appealed this decision.
Finding of the Court:
The court found that the plaintiff was entitled to use the road in front of his lodge and directed the defendants not to obstruct his access.
Issues: The main issue was whether the plaintiff had the right of way to his lodge across the Government land and whether the plaintiff, without pleading easement right, had the right of way over the Government's land.
Ratio Decidendi: The court held that the plaintiff was entitled to use the road in front of his lodge and that the defendants should not prevent him from doing so.
Final Decision: The second appeal was allowed with modifications, directing the defendants not to put up any construction or fence that would prevent the plaintiff from using the road in front of the lodge.
This appeal has been preferred against the Judgment and decree in A.S.No.226 of 1993 on the file of the Court of Subordinate Judge, Cuddalore. The plaintiff who lost his case before the trial Court but succeeded in the first appellate Court is the respondent herein. The appeal has been preferred by the defendants 1 and 2 in O.S.No.127 of 1992 on the file of District Munsifs Court, Cuddalore.
2. The averments in the plaint relevant for the purpose of deciding this appeal are as follows:
The suit is for declaration of title and for consequential mandatory injunction. The plaintiff is a Member of the Legislative Assembly in Kurinjipadi Constituency. He has constructed a Boarding and Lodging by name" Vallalar Boarding and Lodging" on the southern side of the Cuddalore-Virudhachalam road. The plaintiff has spent several lakhs to construct the said building. The said building is useful for the pilgrims who are visiting Cuddalore. From Cuddalore-Virudhachalam Road one can enter into the plaint schedule property through the land marked as "ABCD" in the plan. Apart from this, there is no other pathway is in existence to get access to the main road from the plaintiffs suit property. Due to political controversy, the third defendant is making an attempt to put up a fence in front of the plaintiffs lodge shown as "ABCD" and for the purpose, he has also dug several pits. Only to cause loss to the business of the plaintiff, the defendants are making such undue disadvantage to the plaintiff. In spite of the plaintiffs request, the third defendant is proceeding with his work. The plaintiff has also preferred a complaint to the Sub Inspector of Police, Cuddalore. The plaintiff has issued a notice under Section 80 CPC. Hence the suit.
3. The second defendant in his written statement which was adopted by the defendants 1 and 2 are as follows:
The suit is not maintainable. The suit property belongs to the Government. It is under the control of the defendants 1 and 2. The plaintiff is not in possession and enjoyment of the suit property. The plaintiff requested the defendants to cut and remove the trees from the suit property on 23. 1990. The suit property situated near the plaintiffs lodge belongs to Highways. The plaintiff is making all sorts of attempts to trespass into the suit property. The defendants have not dug any pits so as to prevent the customers from going to the lodge of plaintiff is denied as false. Even the plaintiff has no right to make a claim over the suit property which belongs to the Government. On the Cuddalore-Virudhachalam Road, the defendants are maintaining a garden near the edge of the road from 1985 onwards. The total length of that garden is 125 meters with a width of 26.50 meters. For the past six years, Eucalyptus tree has been planted by the defendant in the suit property. Apart from this, some Tamarind tree, coconut tree and mango tree have also been planted and maintained by the defendants. There is a pathway with a width of 5 meters exclusively left for the public on the southern side of the suit property. There is also a panchayat road available on the western side of the garden with a width of seven meters. The said road is called as "ANS Colony" road. The plaintiff has constructed the "Vallalar Boarding and Lodging building on the south of the highways. ANS Colony road is situated on the west and south of the suit property. The request made by the plaintiff to cut and remove Eucalyptus tree has been turned down by the defendants. The above said garden is being maintained by the defendants by appointing NMR employees . Due to cyclonic wind, all the Eucalyptus trees fell down in November 1991. There are only two coconut trees, one mango tree and one woodapple tree are available now. The fence put up by the defendants are also no in existence now. The fence was put up only to prevent the theft of Eucalyptus trees. After leaving a pathway of five meters only, the fence was put up, some few years back,
