IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 3.4.2008 C O R A M The Honourable Mr. Justice M.JAICHANDREN S.A.No.1758 of 1996 Bel Motors rep. by 1. R.Ravi 2. R.Mani .. Appellants Versus Uthagamandalam Municipality rep. by its Commissioner Nilgiris District .. Respondent - - - - - PRAYER: This second appeal has been filed against the judgment and decree dated 5.7.1996 passed in A.S.No.64 of 1995, on the file of the Sub Judge, Uthagamandalam, Nilgiris District allowing the appeal and dismissed the suit in O.S.No.31 of 1993, on the file of the District Munsif, Uthagamandalam. For Appellants : Mr.P.N.Raman For Respondent : Mr.V.Subbarayan J U D G M E N T This second appeal has been filed against the judgment and decree, dated 5.7.1996, passed in A.S.No.64 of 1995, on the file of the Subordinate Judge, Uthagamandalam, Nilgiris District, allowing the appeal and dismissing the suit in O.S.No.31 of 1993, on the file of the District Munsif, Uthagamandalam. 2. For the sake of convenience, the parties are referred to as they have been arrayed in the original suit. 3. The plaintiffs in the suit O.S.No.31 of 1993, are the appellants in the present second appeal. The plaintiffs had filed the suit praying for a judgment and decree to grant a https://hcservices.ecourts.gov.in/hcservices/ permanent injunction restraining the defendant and its men, servants, agents and subordinates from in any way altering the existing right of way in survey No.811/3 by putting up construction thereon from Ettins Road to Bell Motors of the plaintiffs in survey No.812/1A1A1C1A1A1A1 of Uthagamandalam Town and for costs. 4. It has been stated in the amended plaint filed on behalf of the plaintiffs that the plaintiff firm is running a workshop in the land having an extent of 7,200 square feet in survey No.812/1A1A1C1A1A1A1 of Uthagamandalam Town, with door No.171. The possession of the land had been taken by the plaintiffs from one Janagiammal of Palakad. Thereafter, the plaintiffs have been in possession and enjoyment of the property, including the right of way to the said property. The plaintiffs are carrying on the business of mechanical works and also tinkering, painting, servicing and welding works for motor vehicles. 5. The original owner of the land was utilising the adjacent land in survey No.811/3 of Uthagamandalam Town having the right of way from Ettins Road to Bell Motors. The existing pathway from Ettins Road to Bell Motors which is 10 feet x 100 feet and it has been used by the plaintiffs and their predecessor in title for a long time. 6. It is submitted by the plaintiffs that the only way to reach the property of the plaintiffs is the said pathway and therefore, they are legally entitled to utilise the same as a matter of right. Since the defendant is constructing a shopping complex in survey No.811/3 of Uthagamandalam Town, the pathway used by the plaintiffs is likely to be blocked. Once the pathway is blocked, the plaintiffs would lose the right of way to survey No.812/A1A1A1A1A1A1C to reach door No.172 and the property in occupation of the plaintiffs would become useless causing irreparable loss and hardship to the plaintiffs and the loss cannot be compensated in terms of money. 7. A written statement had been filed by the defendant denying the claims made by the plaintiffs. It has been further stated that the land in R.S.No.812/A1A1A1A1A1A1C did not belong to Janagiammal nor has she transferred the same to the plaintiffs, as alleged in the plaint. The oral transfer of an immovable property, as claimed by the plaintiffs, is not valid in law. Hence, no claim of right relating to the said property can be sustained. 8. It has also been stated that R.S.No.811/3 is not a road nor is it adjacent to the suit schedule property. It is not near Ettins Road. Hence, the claims of the plaintiffs that the https://hcservices.ecourts.gov.in/hcservices/ original owner was using the land as a right of way is untenable. The claim of the plaintiffs that they are carrying on business running a workshop in door No.171 of Ettins Road cannot give them any right of way in the suit schedule property. Further, the plaintiffs are having access to their workshop through Ettins Road. 9. It has also been stated that the property described in the schedule of the plaint does not exist and R.S.No.811/3 is not a road. In fact, R.S.No.811/3 has been earmarked for the construction of a shopping complex under the "Hill Area Development Programme". In such circumstances, the suit is to be dismissed with costs. 10. The trial Court, based on the averments made in the plaint filed by the plaintiffs and the written statement filed on behalf of the defendant, had framed the following issues for consideration:- "(1) Whether the plaintiffs are entitled to the relief of permanent injunction as prayed for by them? (2) What other reliefs?" 11. Considering the issues raised for consideration, the trial Court had decreed the suit in favour of the plaintiffs. It was found by the trial Court that the defendant had not stated in the written statement that the plaintiffs are encroachers in survey No.811/3. According to the report of the Commissioner appointed by the Court the plaintiffs do not have any alternate pathway to the property in their occupation and enjoyment. In such circumstances, the plaintiffs are having the right of easement due to long usage and necessity. 12. Aggrieved by the said judgment and decree of the trial Court, dated 28.4.1995, made in O.S.No.31 of 1993, on the file of the District Munsif, Uthagamandalam, the defendant had filed an appeal in A.S.No.64 of 1995, before the Subordinate Judge, Uthagamandalam, Nilgiris District. 13. Based on the claims made by the plaintiffs as well as the defendant and the evidence available on record, the first appellate Court, had framed the point for consideration as to whether the appeal is to be allowed. 14. The first appellate Court, while setting aside the judgment and decree of the trial Court, had found that the the property in Survey No.812/3, belonging to the defendant, was situated between the property in which the plaintiffs were https://hcservices.ecourts.gov.in/hcservices/ running their business, under the name and style of Bell Motors and Ettins Road. 15. The property said to be in possession of the plaintiffs was not adjacent to Ettins Road. The first appellate Court had held that there was no evidence to prove the claim of the plaintiffs that they had purchased the suit schedule mentioned property from Janagiammal and that the plaintiffs are having title over the said property. In the absence of evidence, the plaintiffs had not proved their possession or ownership of the suit schedule mentioned property. Since the plaintiffs could not prove that they had right to occupy and enjoy the suit schedule mentioned property, it was held by the first appellate Court that the plaintiffs can only be considered as encroachers. Such an encroacher cannot claim any right against the lawful owner. Therefore, the relief sought for by the plaintiffs against the defendant cannot be granted. Further, the plaintiffs have not been in a position to show that the plaintiffs and their predecessor in title have been using the pathway for a long time as claimed by them. 16. The first appellate Court had found that the plaintiffs having been examined as P.W.1, had admitted in his evidence that there was no written agreement between the plaintiffs and Janagiammal and that there was no consideration determined or paid. From the evidence of the Village Officer, namely, S.Subramani, examined as D.W.2, it was found that the property had belonged to one Narayana Menon, and Janagiammal had no right in the property. There was no documentary proof to show that Janagiammal was the owner of the property. When Janagiammal had no right in the property in question, the plaintiffs, who are claiming rights in the property through her, cannot be said to have any valid right or title in the suit property. The document transferring an immovable property, having a value of more than Rs.100/-, ought to be registered to have evidentiary value in the eye of law. Thus, the plaintiffs had failed to show any such proof to substantiate their claims. From the statements of P.W.2, made during his cross-examination, it is clear that there is an alternate pathway in Ettins Road, on the southern side of the suit property. In such circumstances, they cannot have any right of easement as held by the trial Court. 17. The second appeal is admitted on the following substantial questions of law:- "1. Whether the appellate Court can go into the question of title when the suit was filed only for injunction. https://hcservices.ecourts.gov.in/hcservices/ ii) Whether the appellate Court was right in ignoring the Commissioner's report who is an officer of the Court when it was not objected by the other side? (iii) Whether the appellate Court was right in holding that the plaintiff has not pleaded for necessity when in para 6 of the plaint it is specifically stated "the plaintiffs submit that this is the only way to reach property of the plaintiffs and the plaintiffs are legally entitled to utilise the same as their right of way." 18. The learned counsel appearing for the appellants/plaintiffs had contended that the suit pathway is the only access to the plaintiffs' property and the first appellate Court ought to have held that the plaintiff had the right of easement of necessity in the suit pathway as held by the trial Court. 19. It had also been contended that the lower appellate Court had erred in deciding the issues relating to the title while the plaintiffs had filed the suit only for the relief of permanent injunction. Since the plaintiffs had no other pathway to reach the property in their occupation and enjoyment, the first appellate Court ought to have confirmed the findings of the trial Court. 20. The learned counsel appearing for the respondent/defendant had submitted that the trial Court had committed the error in decreeing the suit as prayed for by the plaintiffs. The plaintiffs had not established their rights over the suit land, either by documentary or by oral evidence. Therefore, the plaintiffs are only encroachers and they have no right to claim the right of easement in the property belonging to the defendant. Since the plaintiffs are having alternate pathway to reach the property said to be in their possession, the right of easement of necessity does not arise. The first appellate Court was right in rejecting the claims of the plaintiffs. 21. The learned counsel appearing on behalf of the appellants/plaintiffs had relied on the following decisions in support of his contentions: 21.1. In GOVINDA ASARI Vs. KANCHEEPURAM MUNICIPAL COUNCIL (1981 I M.L.J. 336), it was held as follows: https://hcservices.ecourts.gov.in/hcservices/ "19. The mere vesting of the public street in the Municipal Council does not confer any power on the Municipal Council to treat it as a private property of the Municipality, and the power to close any public street temporarily or permanently, does not imply a power to cause obstruction to the use of the public street by the owners adjacent to the same. The defendant- Municipality cannot exercise any right over the public street except such as are authorised by law. 20. 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." 21.2. In MANBHUM DIST. BOARD Vs. B.N.RLY. CO. (A.I.R.(32) 1945 PATNA 200), it was held that where a roadside land is only under the control and administration of the District Board, the Board holds it for the purpose of maintaining the road and cannot divert it for any other use. The Board cannot lease it for the purpose of putting up permanent building thereon. The right of access to the highway at all points where a land adjoins the highway belongs not only to the owner of the land but also to the occupier and the occupier can sue for removal of an obstruction interrupting his right of access to the highway. The fact that the owner or occupier of adjacent land has fenced it off or raised a wall for his convenience or opened a gateway on the other side cannot affect his right of access to the highway as aforesaid. 21.3. In ACME TILES & BUILDING PRODUCTS Vs. B.SUDARSHAN (1993 (3) ALT 359), it was held that it is a well settled principle of law that a person in possession of the property to the knowledge of the landlord at the time when he had occupied the said land, cannot be evicted otherwise than in due course of law. Even a trespasser who is in continuous possession since a long time prior to and on the date of the suit, can maintain a suit for injunction. 22. Considering the submissions made by the learned counsels appearing for the plaintiffs as well as the defendant and in view of the evidence available on record, this Court is of the considered view that the plaintiffs have not shown sufficient cause or reason to interfere with the findings of the first https://hcservices.ecourts.gov.in/hcservices/ appellate Court in A.S.No.64 of 1995. The plaintiffs have not been in a position to show that they had valid title, with regard to the property said to be in their possession and enjoyment in which they are running a business. Further, sufficient evidence had not been shown to prove that the plaintiffs and their predecessor in title have been using the pathway for a long time, as claimed by the plaintiffs. 23. In such circumstances, it cannot be said that the plaintiffs have easementary right to use the pathway said to be in the property belonging to the defendant. Hence, the second appeal stands dismissed, confirming the judgment and decree, dated 5.7.1996, passed in A.S.No.64 of 1995, on the file of the Subordinate Judge, Uthagamandalam, Nilgiris District. No costs. Lan Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1. The Sub Judge, Uthagamandalam, Nilgiris District 2. The District Munsif, Uthagamandalam 3. The VR Section, High Court, Madras. + 1 cc to Mr. P. N. Raman, Advocate SR No. 18758 S.A.No.1758 of 1996 SSV(CO) SR/16.5.2008 https://hcservices.ecourts.gov.in/hcservices/