A suit for mandatory injunction seeking the removal of encroachments on a public pathway is not maintainable if the plaintiff fails to prove the public nature of the land and fails to seek a declaration of easementary rights over the property.

JUDGMENT

The unsuccessful plaintiff is the appellant herein.

2. The appellant/plaintiff filed a suit for mandatory injunction, directing the defendants 1 and 2 to remove the construction put up by them by encroaching the public pathway. He also sought for mandatory injunction directing the 7^th defendant to disconnect the electricity service connection given to the building put up by the defendants 1 and 2. The suit was dismissed by the Trial Court. The findings of the trial court were affirmed by the first appellate court. Aggrieved by the concurrent findings of the courts below, the appellant has come before this court.

3. According to the appellant/plaintiff, he owns lands in S.No.73/2 and

73/3 and on the western side of the properties belonged to him, there is a public pathway in S.No.71. The defendants 1 and 2 encroached the said public pathway and put up construction, thereby, the access to the plaintiff’s properties on further eastern side is affected. Since the construction put up by the defendants 1 and 2 causes hindrance to the access to the plaintiff’s property, he issued a legal notice to the defendants 3 to 6 on 20.02.2014 seeking removal of the constructions. The plaintiff also issued a legal notice to the 7^th defendant seeking disconnection of the electricity service connection given to the building put up by the defendants 1 and 2. Since the defendants 3 to 6 failed to take any action on the request made by the plaintiff, the instant suit has been filed by the plaintiff seeking mandatory injunction, as stated supra.

4. The contesting defendants 1 and 2 filed a written statement denying the averments in the plaint that they had put up construction in the public road causing hindrance to the access of the plaintiff to his property. The defendants 1 and 2 specifically denied any kind of right to the plaintiff in the suit property. It was also stated by them that the first defendant was a carpenter and the 2^nd defendant was a laundry worker and 20 years back, the village headman allotted the present suit property to them to facilitate the construction of their residence. Therefore, based on the leave granted by the headman, defendants 1 and 2 constructed their houses in the suit property 20 years ago and they have been living there. The defendants also pleaded that there is an alternative access to the plaintiff’s property, on the eastern side of the suit properties and he is using the said alternative pathway. It was further pleaded by the defendants that the plaintiff, without having any semblance of right over the suit property, filed a suit for removal of the construction put up by the defendants 1 and 2. On these pleadings, they sought for dismissal of the suit.

5. Before the Trial Court, on the side of the plaintiff, he examined himself as PW1 and marked 16 documents Ex.A1 to Ex.A16. On the side of the defendants, the first defendant was examined as DW1, however, no document was marked on their side. The Advocate Commissioner’s report and plan were marked as Ex.C1 and Ex.C2.

6. The Trial Court, on appreciation of oral and documentary evidence available on record, came to the conclusion that the plaintiff failed to prove that the suit property was a public road and dismissed the suit. Aggrieved by the findings of the trial court, the plaintiff filed an appeal in A.S.No.18 of 2020 on the file of 1^st Additional Subordinate Judge, Villupuram. The first appellate court affirmed the findings of the trial court. Challenging the concurrent findings of the courts below, the plaintiff has filed the present second appeal.

7. The learned counsel for the appellant/plaintiff would submit tha