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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
R. Vijayakumar, J.
M. Rajagopal - Appellant
Versus
Suresh & Another - Respondent
S.A.(MD). No. 399 of 2019 & CMP(MD). No. 7918 of 2019
Decided On : 27-06-2022
Civil Procedure Code, 1908 – Second Appeal – Suit for permanent injunction – Corporation without acquisition of the said 'B' schedule property, the second defendant Corporation has laid a Thar road in violation of provisions of the relevant statute – Decree of Court - Whether the Courts below are right in dismissing the suit and appeal without framing an issue whether the suit 'B' schedule property is a public street or not? b) Whether the notification as contemplated under Section 255 of the Tiruchirappalli City Municipal Corporation Act, 1944, is applicable to the road earmarked in an unapproved layout?”Held, Courts were under a wrong presumption that 'B' schedule property is a private property and unless acquired by the Government, a public road cannot be created. The Courts below have not properly understood the difference between the acquisition of the property by the Government and the automatic vesting of the property in the hands of the Corporation. When a particular street is construed to be a public street, as per definition of Section 2(33) of the coimbatore city Municipal Corporation Act, 1981, it gets automatically vested with the Corporation as contemplated under Section 236. Hence, the question of acquisition of the said property does not arise – Second Appeal allowed.
JUDGMENT :
Prayer: Second Appeal is filed under Section 100 of C.P.C, to allow the second appeal by setting aside the judgment and decree dated 11.07.2019 passed in A.S.No. 11 of 2019 on the file of the I Additional Subordinate Court, Tiruchirappalli confirming the judgment and decree dated 17.12.2018 made in O.S.No.1240 of 2011 on the file of the III Additional District Munsif Court, Tiruchirappalli.
1. The plaintiff is the appellant.
2. The plaintiff had filed O.S.No.1240 of 2011 on the file of the III Additional District Munsif Court, Trichy for the relief of permanent injunction restraining the first defendant or any person claiming under him from in any way interfering or preventing the plaintiff's right of user of the suit road shown in 'B' schedule property vested with the second defendant as access to 'A' schedule property. The said suit was dismissed by the trial Court. The plaintiff had filed A.S.No.11 of 2019 before the I Additional Subordinate Court, Trichy. The learned Subordinate Judge was pleased to dismiss the said appeal. As against the concurrent findings, the present second appeal has been filed.
3. The plaintiff had contended that he is the owner of 'A' schedule property by means of two sale deeds dated 30.03.1995 and 03.07.1995 under which he has purchased the same from one Thangaraj. According to the plaintiff, he is in possession and enjoyment of 'A' schedule property. The plaintiff had further contended that the said 'A' schedule property is located in T.S.No.23/2B. In the west of the said 'A' schedule there is a road in T.S.No.22/3 and T.S.No.8. The said road has been shown as 'B' schedule in the suit.
4. The plaintiff had further contended that the first defendant and his brother were owning vacant plots on the western side and also on the southern side of the road. The first defendant and his brother sold all the vacant site to various persons including hospital and flats. According to the petitioner, 'B' schedule road is the access road for reaching Dhanalakshmi Srinivasan College Medical and Engineering College. The plaintiff had further contended that the first defendant and his brother have left the road in 'B' schedule property as the road for all the purchasers to have access through the road. It is the metal road and the plaintiff was gaining entry into his property through a gate facing the suit road located in 'B' schedule property. The plaintiff had further contended that in the year 2008, he prepared a plan for construction of commercial building in 'A' schedule property and the second defendant has sanctioned the plan on 06.05.2008. In the said building plan, 'B' schedule road shown as existing road for 'A' schedule property.
5. The plaintiff had further that the second respondent Corporation had directed the plaintiff to deposit a sum of Rs.4,10,050/- for development of 'B' schedule road. Accordingly, the said amount was paid by the plaintiff on 12.11.2008 and on 12.05.2010 to the Director of Town and Country Planning Authorities towards the Provisions of basic amenities and infrastructure for rain water harvesting.
6. The plaintiff had further contended that the second defendant had taken over 'B' schedule property after calling for tender and thereafter has laid a Thar road and also provided street lights and laid under ground drainage connection and drinking water connection to all the premises facing 'B' schedule road. The plaintiff had further contended that the Corporation in exercise of their power under Section 225 of Trichy City Municipal Corporation Act, made it as a public road and the same is vested with the Corporation. The plaintiff had contended that he has been using 'B' schedule road even since it was formed and also after a commercial construction was made by the plaintiff. The plaintiff had further contended that he has let out his building to various institutions and the tenant also using the said road as a public road in order to reach their respective portion through the g
SupremeToday
Section 265 of Act reads as vesting of public streets and their appurtenances in corporation.
The court determined that the plaintiff's apprehension of encroachment was unfounded given existing road status and affirmed previous dismissals based on proper judicial analyses.
An easementary right by prescription cannot be claimed by a lessee without the true owner, and claims barred by limitation are unsustainable.
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