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IN THE HIGH COURT OF JUDICATURE AT MADRAS
N. ANAND VENKATESH, J.
Arulmighu Palapattarai Mariamman Tirukoil, Rep. by its Executive Officer, Namakkal - Appellant
Versus
Pappayee & Others - Respondent
S.A. No. 190 of 2013 & M.P. No. 1 of 2013
Decided On : 25-03-2022
Encroachment - Public Street - Madras City Municipal Corporation Act, 1919 - Sections 203, 204, 220, 221, 223 - The court held that the public has the right to pass and repass over every inch of the street, and the owner of a property adjacent to a highway or a public street has the right of access to such highway at any point at which his land actually touches it. The judgment emphasized that even if a temple encroaches upon a public space, the courts will direct the removal of such encroachments to safeguard public interest and uphold the rule of law. The court ordered the removal of the illegal structure put up in S.No.42 and decreed the suit as prayed for.
Fact of the Case:
The plaintiffs sought permanent and mandatory injunction against the 1st defendant to prevent interference with the usage of the public street and to restore the suit portion to its original position. The 1st defendant claimed that the street was vested with the Mariamman temple and denied the claims made by the plaintiffs.
Finding of the Court:
The lower Appellate Court found that the street was under the control of the 2nd defendant Municipality and that the 1st defendant had encroached upon a public street. The court held that the 1st defendant's construction had virtually prevented the plaintiffs from having any access to the public street from their property.
Issues: The issues included the classification of the street, the right of the public to use the street, and the encroachment by the 1st defendant. The court also considered the necessity of adding the Government as a party to the suit and the right of easement of necessity for the plaintiffs.
Ratio Decidendi: The court emphasized the public's right to use every inch of a public street and the owner's right of access to the street at any point where the property touches it. The judgment highlighted that even if a temple encroaches upon a public space, the courts will direct the removal of such encroachments to safeguard public interest and uphold the rule of law.
Final Decision: The second appeal was dismissed, and the suit was decreed as prayed for. The 1st defendant was directed to remove the illegal structure within two months, and the 2nd defendant was authorized to remove the structure if the 1st defendant failed to do so.
JUDGMENT
(Prayer: Second Appeal filed under Section 100 of C.P.C., against the Judgment and Decree dated 28.03.2012 in A.S.No.48 of 2011 on the file of the Additional District Court Judge, Namakkal, reversing the judgment and decree in O.S.No.683 of 2005, dated 31.10.2007 on the file of the Principal District Munsif's Court, Namakkal.)
1. The 1st defendant is the appellant in this Second Appeal.
2. The 1st and 2nd respondents/plaintiffs filed the suit seeking for the relief of permanent injunction against the 1st defendant and to restrain the 1st defendant from interfering with the usage of the suit property by putting up any structure or barricade and thereby, prevent the ingress and egress to the property belonging to the plaintiffs. The plaintiffs also sought for the relief of mandatory injunction to restore the suit AB portion to its original position.
3. The case of the plaintiffs is that they became entitled to the properties on the demise of their mother on 20.01.1984. According to the plaintiffs, the portion shown as AB in the rough plan filed along with the suit is a street called as Mariamman Koil Street which is classified as a Poramboke in the revenue records and it is a public street vested with the 2nd defendant Municipality. On the southern side of this street exists the Mariamman Temple at S.No.43. The street is in S.No.42 and the schedule properties are in S.Nos.30, 31 and 32.
4. The further case of the plaintiffs is that for all the tenements in S.Nos.30 and 31, their only access is from Mariamman Koil Street in S.No.42 from time immemorial. Therefore, according to the plaintiffs, it will not be open to anyone to prevent the user or cause obstruction to the ingress and egress from any point in S.Nos.30 and 31 to this street in S.No.42.
5. The grievance of the plaintiffs is that the 1st defendant was making arrangements to put up a barricade in order to raise a structure in the place that has been earmarked as a public street. The plaintiffs further state that the said attempt was prevented by the 2nd defendant and in spite of the same, hectic preparation was done to barricade and put up a structure. According to the plaintiffs, if the same is done, it will virtually block the ingress and egress to the property belonging to the plaintiffs. It is under these circumstances, the suit came to be filed seeking for the reliefs stated supra.
6. The 1st defendant filed a written statement and they took a stand that S.No.42 is vested with the Mariamman temple and the temple car was parked in that place and during the festival days, the temple car used to be pulled and it was taken around the Mariamman temple. A further stand was taken in the written statement to the effect that the renovation and construction is done by the Committee and they should be made as party in the suit. The 1st defendant denied all the claims made by the plaintiffs and sought for the dismissal of the suit.
7. The 2nd defendant filed a written statement and took a stand that S.No.42 has been categorized as a Sarkar Poramboke and Mariamman temple street is situated in this survey number which runs from the Mariamman temple to the Salem road. According to the 2nd defendant, the 1st defendant is putting up construction in the place belonging to them and the plaintiffs do not have any right to question the same. Accordingly, the 2nd defendant also sought for the dismissal of the suit.
8. The trial Court on considering the facts and circumstances of the case and after analyzing the oral and documentary evidence, dismissed the suit through a Judgment and Decree dated 31.10.2007. Aggrieved by the same, the plaintiffs filed an appeal in A.S.No.48 of 2011. The lower Appellate Court on reappreciation of the oral and documentary evidence and after considering the findings of the trial Court, allowed the appeal through Judgment and Decree dated 28.03.2012 and thereby, the Judgment and Decree of the trial Court was set aside. As a result, the suit was decreed as pra
AI
Property owners have an inherent right of access to public roads, irrespective of alternative routes; denial of access violates legal principles governing property rights.
Landowners adjacent to public roads maintain a fundamental right of access to their properties, regardless of alternate access points, supporting public interest and use.
Section 265 of Act reads as vesting of public streets and their appurtenances in corporation.
An owner of land adjacent to a public street has an inherent legal right to access the street at any point where their land touches it, irrespective of custom or the existence of alternative access r....
Property owners abutting public pathways retain rights of access from all boundary points, protecting against unauthorized constructions infringing these access rights.
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