IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 09.03.2010 CORAM : THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN S.A.No.959 of 2003 T.Muthu ... Appellant/Respondent/Plaintiff Vs. R.Kamalakkannan ... Respondent/Appellant/Defendant Prayer:- This Second Appeal has been filed under Section 100 of Civil Procedure Code against the Judgment and decree dated 31.01.2003 made in A.S.No.103 of 2001 on the file of the learned II Additional Subordinate Judge, Villupuram by setting aside the judgment and decree dated 19.06.2001 made in O.S.No.183 of 1993 on the file of the learned Additional District Munsif, Villupuram. For Appellant : Mr.P.Ariudai Nambi For Respondent : Mr.R.Subramanian J U D G M E N T The appellant who is the plaintiff in the Original Suit has filed this second appeal against the judgment passed by the learned II Additional Subordinate Judge, Villupuram in A.S.No.103 of 2001 dated 31.01.2003 reversing the judgment and decree of the learned Additional District Munsif, Villupuram made in O.S.No.183 of 1993 dated 19.06.2001. 2. The background facts which are necessary and absolutely germane for the disposal of this appeal would run thus: a) For convenience, the party shall be referred as arrayed as before the trial court. According to the plaintiff, the suit road belong to the Kandamangalam Panchayat Union and is used by the general public of the Seramangalam Village. It is classified as road in the revenue records and the patta is in the name of the Commissioner of Kandamangalam Panchayat Union. To the north of the Panchayat road the defendant has got his property. On the east of the defendant's property, the plaintiff purchased a property by virtue of a sale deed dated 23.04.1990 and has built a house and he is in possession of the said property. According to the plaintiff from the date of his purchase, he has been using the suit road to reach his property and his predecessor also used the suit road for the said purpose. It is the case of the plaintiff that the defendant tried to encroach upon the plaintiff's property on the north of the suit road and therefore, the plaintiff was forced to put a fence in between the property of the plaintiff and the https://hcservices.ecourts.gov.in/hcservices/ defendant and also on the eastern side of the suit property leaving a space. According to the plaintiff aggrieved by the said action taken by the plaintiff, the defendant was obstructing him from using the suit road and on 18.02.1993, he started storing dry manures and hayrick in the suit road thus preventing free access of the plaintiff to the suit road. Therefore, the plaintiff has come forward with the suit for permanent injunction restraining the defendant from interfering with the free access of the plaintiff to the suit road. b) The defendant resisted the suit by filing written statement however, admitted that the suit property is the panchayat road. He has stated that he is owning the property on the north of the suit road and one Radhakrishnan is also owning property on its south. He has denied that the plaintiff and his predecessor was having access to the suit property through the suit road. According to him, there is a north-south road on the west of the plaintiff's house which was used by the defendant for ingress and egress and therefore, he would state that the plaintiff never used the suit road to reach his property. According to him, the plaintiff has no cause of action to the suit. c) The trial Court on consideration of evidence adduced on both sides found that the suit road being a panchayat road, the defendant has no right to prevent the plaintiff's access to the said road and therefore, granted a decree in favour of the plaintiff. Aggrieved by the said finding of the trial Court, the defendant filed the appeal in A.S.No.103 of 2001.The Lower Appellate Court reversed the findings of the trial Court holding that since the plaintiff is not using the panchayat road he cannot claim right of access over the suit road and cannot object to the defendant's action in preventing him from using the road. Aggrieved over the said findings of the Lower Appellate Court, the plaintiff has come forward with this appeal. At the time of admission, the following substantial question of law is formulated by this Court:- "1. Whether the Lower Appellate Court is correct in coming to a conclusion that merely because the suit property is a public road belonged to Panchayat Union, the appellant/plaintiff cannot claim as a matter of right to use the road and therefore, the right of the respondent/defendant would not be deprived of to stop the plaintiff's right from using the public road vested with the Kandamangalam Panchayat Union? 2. Whether the lower Appellate Court is correct in setting aside the judgment of the trial Court in the light of Section 77 of Tamil Nadu Panchayat Act, 1958, when the Government have never issued any notification excluding from the operation of the Panchayat Act in respect of the subject matter of the suit property i.e., https://hcservices.ecourts.gov.in/hcservices/ Kandanmangalam Panchayat Union public road?" d) It is not disputed that the suit road is the panchayat road and in fact,both the Courts have held that it is the panchayat road belonging to Kandamangalam Panchayat Union. The revenue records A2 Field Measurement plan and A3 'A' Register affirm the said fact. To the east of the said road lies the plaintiff's land and the defendant's property is on the north western part of the road. According to the plaintiff, he is using the suit road to reach his land and prior to his purchase, his predecessor was also using the said road to reach the property. It is specifically alleged by him that from 18.02.1993, the respondent/defendant started dumping his manure in the suit road completely obstructing the road and thus preventing the plaintiff's free access to the suit road. On the other hand, the respondent/defendant refuted the said allegations contending that there is a north-south road lying on the west of the plaintiff's property and the plaintiff was not using the suit road at any point of time and therefore, according to him there is no cause of action to maintain the suit. 3. Mr.P.Arivudainambi, the learned counsel for the appellant drew the attention of this Court to the report and plan Exs.C1 & C2 submitted by the Advocate Commissioner before the Lower Court wherein, he has found a heap of dry manure and hayrick stored by the defendant adjacent to the live fence put up by the plaintiff on the eastern side of his property. The learned counsel for the appellant submitted that hayrick and dry manure stored by the defendant obstructed the road thus preventing the plaintiff from having free access to the road. 4. In the commissioner's report, hayrick and dry manure stored has been shown on the eastern side of the suit road adjoining the plaintiff's land and it is seen that the access through the suit road to the plaintiff's land is obstructed by such storage. The relevant passage from the commissioner's report has been extracted hereunder: "vjph;kDjhuh; tPlhd fy; tPl;ow;Fk; rpwpJ ,ilbtsptpl;L fpHf;F g[wkhf khl;Lf; bfhl;lif nghd;w mikg;g[ila xU bfhl;lif ,Ue;jJ. vjph;kDjhuh; tPl;od; nkw;Fg[wj;jpypUe;J fpHf;fhf Rkhh; 100 mo J}uj;jpy; + Fwp nghl;l xU fhzp fy; cs;sJ. me;j fy;ypypUe;J fpHf;F g[wkhf Rkhh; 22 mo js;sp capUs;s ntg;gkuk; xd;W cs;sJ. mjw;Fk; rw;W ,ilbtsp tpl;L fpHf;F g[wkhf cile;j br';fy; nghh; cs;sJ. me;j br';fy;nghhpypUe;J Rkhh; 27 mo fpHf;fhy; fpHf;if js;sp xU fy; cs;sJ. mjd; mUfpy; tl fpHf;fhf itf;nfhy; nghh; cs;sJ. mjd; cauk; Rkhh; 6 mo ,Uf;Fk;. me;j itf;nfhy; nghUf;Fk; ½ bjw;F g[wkhf rw;W ,ilbtsp tpl;L Rkhh; 4 mo cauk; cs;s Fg;ig xd;W cs;sJ. mjd; ePsk; bjw;F tlf;fhf Rkhh; 12 mo , Uf;Fk;. me;j Fg;igf;F fpHf;F g[wkhf Rkhh; 4 mo js;sp ntyp xd;W tlf;F bjw;fhf cs;sJ. mjpy; xUrpy capUs;s MLbjhlh https://hcservices.ecourts.gov.in/hcservices/ brofs; cs;sd. nkw;o Fg;ig ahUilaJ vd;W tprhhpj;j nghJ vjph;kDjhuUilaJ jhd; vd;W vjph; kDjhuh; brhd;dhh;. nkw;go Fg;igia xl;odhw; nghy; bjw;Fg[wkhf fpHf;F gFjpapy; ouhf;lhpy; gad;gLj;Jk; "o!;f;" vdg;gLk; cHt[f;fUtp fple;jJ. nkw;go ntypf;F fpHf;Fg[wkhf njhl;lk; cs;sJ. me;j njhl;lk; kDjhuUilaJ vd;W kDjhuh;/ vjph; kDjhuh; ,UtUk; Twpdhh;fs;. So from the above said report coupled with the plan submitted by the learned Advocate Commissioner, it is evident that abutting plaintiff's land on the eastern side of the road from where the panchayat road starts, the defendant has stored the dry manure and hayrick to a width of 12 feet which would definitely cause obstruction to the free access of the plaintiff to reach his thottam from the road. 5. It is no doubt true that the plaintiff has not left any space as entrance on the western side of his land but it is pertinent to point out that except live plants (Mlh njhlh brofs;), no other type of fence was found on the boundary and the same could be inferred from the report and plan filed by the Advocate Commissioner. The Lower Appellate Court though held that the suit road is a panchayat road however, held that the plaintiff cannot claim right of access as he has no entrance in his thottam to reach the road. 6. The said findings of the Lower Appellate Court does not stand to legal scrutiny. The owner of land adjoining a public road whether it is a panchayat road or a highway has a right of access from any part of his land to the said road and when his right of access is obstructed he may take action for the injury caused. 7. Mr.R.Subramaniam, the learned counsel for the respondent contended that since the plaintiff has not been using the road or exercised any right of access along this road, it would be deemed that he has abandoned his right of access along the suit road and he cannot maintain the suit as he has no cause of action. The said contention cannot be countenanced because the commissioner's report and plan does not show that the plaintiff has put up a continuous fence around his land on the western side of his land i.e. to the east of the road and it cannot be assumed that the plaintiff has abandoned his right of access merely because there are some plants. According to the plaintiff, he had put live fence in order to prevent the cattle from entering into his land. Merely because he has no pucca entrance it cannot be presumed that he is not using panchayat road. In fact, the plaintiff has specifically pleaded that he has put up live fence in between the property leaving space on the east. 8. The learned counsel for the appellant drew the attention of this Court to the decision reported in Damodara Naidu & Others Vs. Thirupurasundari Ammal & another (AIR 1972 Madras 386) wherein it is held that when the plaintiff's right to access to the public https://hcservices.ecourts.gov.in/hcservices/ road is obstructed by the defendants by putting up a wall or causing hindrance, they are entitled for a mandatory injunction directing the defendants to remove such obstruction. 9. It is admitted that the space occupied by the defendant on the road is an intervening space between the public road and the plaintiff's property. It is also seen from the commissioner's report that there is no sufficient space left for free access from the public road to reach the plaintiff's land in view of the said obstruction. It is relevant to point out that no person can occupy a public road belonging to the panchayat or any local body more particularly, the owner having land abutting the public road is entitled to have access to their property from all points from their property and if any obstruction is caused, it could be removed. 10. The legal proposition is clear as laid down by this Court reported in Kullammal Vs. Perumal (1996 (2) MLJ 37) wherein at para 24 it held as follows: In Govind Asari v. The Kancheepuram Municipal Council, represented by its Commissioner, 94 L.W. 697, a learned Judge of this Court followed the same passage from 'Prate and Mackenzie' Law of High way-21st Edition, at page 58, and regarding the locus standi of a person to have the obstruction removed, it was further stated thus: "... It would be the height of absurdity to say that a private right is not interfered with, when a man who has been accustomed to enter his house from a highway finds his door way made impassable, so that he no longer has access to his house from the public high way. This would equally be a private injury to him, whether the right of the public to pass and repass along the highway were or were not at the same time interfered with." In that textbook, referring to the right of access to or from the highway as a private right, it is again observed thus: ".... any interference with it is an interference with a private right; but the latter right is an individual interest in a public right and is enjoyed by the owners as of public entitled to use the highway". Again, it is observed that- "It is well established that where there is public highway, the owners of the land adjoining there to have a right to go upon the highway from any spot https://hcservices.ecourts.gov.in/hcservices/ on their land... The right of access to a highway enjoyed as a private right by the owner of premises adjoining the highway is not limited to the right to pass from the premises to the highways and vice versa, but includes the right of access to a wall of the premises in which there is no door or other opening. But the premises must actually adjoin the highway.... An owner of the land which runs right upto a public highway is entitled to access to that highway from his land and that is so whether he is the presumptive owner of the soil of the highway or not... A highway authority has no power in discharge of the duty of the survey or of highways to repair, to raise the level of a highway so as to interfere with the adjoining owner's right of access." The learned Judge further held as follows: "The owners of houses abutting on a public street have right of access to and from the public street and if anything is done by the Municipality to interfere with the rights of such owners, the owners have an actionable claim." In this case, once the position of law has been declared, we have to consider whether the same applies to the facts of this case. The plaintiff's house faces the road and that it is the only access to the road is not a matter in dispute. The land over which the construction has been put up by the second defendant is admittedly on a municipal land where public have a right of user. It is evident that by such construction, the access to the plaintiff's house or property is also obstructed. Even though the second defendant's case was that herself and her husband have been in occupation of the hut for long number of years, the concurring findings of the courts below is that they were residing else where and the construction was only recent. It is true that the plaintiff filed complaints before the first defendant-Municipality and he wanted the obstruction to be removed by them. It is the statutory duty of the first defendant to remove such obstructions. But except for issuing a notice and passing a resolution, the first respondent (Municipality) has remained silent. The first respondent has not discharged the statutory duty enjoined upon them. It was under such circumstances, plaintiff was compelled to file the suit." https://hcservices.ecourts.gov.in/hcservices/ 11. In the above said case, the learned Judge held that since plaintiff's property was lying adjacent to public street he was entitled to remove the obstruction as he had got every right to reach the property from any point from the public street. 12. In the present case, the evidence as well as the commissioner's report and plan clearly indicated that the plaintiff's property abutted the panchayat road and his free access to the said road has been obstructed by the defendant by storing hayrick and dry manure. The said obstruction has caused hindrance to the free access of the plaintiff and therefore, he can maintain the suit for removal of such obstruction caused to his free access of using the public road. Therefore, I am of the view that the findings of the Lower Appellate Court that merely because the suit property is a public road belonging to the Kandamangalam Panchayat Union, the plaintiff cannot claim right to use the road and deprive the right of the respondent/defendant to stop plaintiff's right from using the public road is erroneous and liable to be set aside. 13. It is not disputed that the Government has never issued any notification excluding from the operation of the Panchayat Act in respect of the suit road that is Kandamangalam Panchayat Union public road. Therefore, in the absence of any such notification, the lower Appellate Court is not correct in setting aside the judgment of the trial Court and there is a warranty to interfere with such findings of the Lower Appellate Court. In view of the above said reasons, the substantial question of law formulated are answered and in favour of the appellant/plaintiff. Accordingly, the Second Appeal is allowed with costs. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar DP To 1.The II Additional Subordinate Judge, Villupuram. 2.The Additional District Munsif, Villupuram. https://hcservices.ecourts.gov.in/hcservices/ 3. The Section Officer, V.R.Section, High Court, Madras-104. 1 cc to Mr.R.Subramanian, Advocate, Sr.No.15932 Judgment made in S.A.No.959 of 2003 NM {CO} TP/2.6.2010. https://hcservices.ecourts.gov.in/hcservices/