IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 14.03.2008 CORAM: THE HONOURABLE MR.JUSTICE V.DHANAPALAN SECOND APPEAL No.957 OF 1996 Thambaiya Naidu ... Appellant/Plaintiff vs. 1. The State of Tamil Nadu, rep. by Collector of South Arcot, having office at Cuddalore – 1. 2. The Divisional Engineer (Highways), Highways Department, having his office at Cuddalore – 1. 3. The Commissioner, Cuddalore Municipality, having office at Cuddalore – 1. 4. Ramu ... Respondents/Defendant Second Appeal filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 31.08.1994 made in A.S.No.170 of 1993 on the file of the Additional Subordinate Judge, Cuddalore condoning the decree and Judgment dated 12.01.93 made in O.S.No.475/91 passed by the Principal District Munsif, Cuddalore. For Appelllant : Mr.R.Muralidharan For Respondents : Mrs.R.Revathi, for R1 and R2 Government Advocate No Appearance for R3 & 4 J U D G M E N T Aggrieved by the judgment and decree dated 31.08.1994 made in A.S.No.170 of 1993 on the file of the Additional Subordinate Judge, Cuddalore, confirming the judgment and decree dated 12.01.1993 made in O.S.No.475 of 1991 passed by the Principal District Munsif of Cuddalore, the plaintiff has come up before this Court with the present appeal. https://hcservices.ecourts.gov.in/hcservices/ 2. The case of the plaintiff, Thambaiya Naidu as put forth before the Trial Court is as follows : The suit property described in the plaint is situated in Nethaji Road, Manjakuppam, Cuddalore-1 and it is classified as Poramboke land, which is marked as ABCD in the plan appended to the plaint. The suit property is on the southern side of T.S.No.1687/3, which belongs to the plaintiff. The plaintiff is running a provision shop therein. The suit property belongs to defendants 2 and 3. It was used as a lane to go into Anna Market. While so, for the last two years, the fourth defendant has encroached upon the suit property, put up a temporary hut and has completely closed the lane preventing ingress and egress of the people into Anna Market. The plaintiff has protested the attitude of the fourth defendant as the encroachment has become a nuisance to him. The fourth defendant has obstructed light and air of the plaintiff through his window and ventilator on the western side of the plaintiff's house. The rain water of the plaintiff's house will drain on the southern side of the property. The occupation of the fourth defendant in the suit property has affected the right of way to market. Even though, the matter was reported to the third defendant, the Commissioner of Cuddalore Municipality, he had not taken any steps against the fourth defendant. Therefore, the plaintiff is constrained to file a suit for mandatory injunction directing the defendants 2 and 3 to remove the hut put up by the 4th defendant in the suit property marked as ABCD in the plaint plan. 3. The case of the defendants as stated in the Written Statement is, as under: (i) The first and second defendants denied that the suit property was used as a lane with the knowledge of the Government or that anybody has got a right of easement over it. In fact, the plaintiff himself has not pleaded any such legal right and at any rate, it was not used as such with any knowledge or consent of the Government Officials. Being poramboke property, people might have been unauthorisedly using it without any right and the plaintiff may be one such person. According to them, the fourth defendant had encroached upon it two years ago as stated in the plaint and put up a temporary shed thereon. But, he does not cause prevention of ingress and egress of anyone to Anna Market, which would give a cause of action to file a suit against the Government for mandatory injunction as in this case. The suit is also not filed as a representative suit on behalf of all such people and the defendants 1 and 2 are at a loss to understand who the alleged people are. The alleged nuisance caused to the plaintiff, even if any, cannot give a cause of action to the plaintiff to file the https://hcservices.ecourts.gov.in/hcservices/ suit, because he has no legal right as such. The plaintiff must or might not be prejudiced by any such encroachment in the matter of his getting light and air but he cannot feel aggrieved against the Government on that basis. The said encroacher's window and ventilator on the western side of the plaintiff's house caused any such nuisance to the plaintiff so as to give a cause of action to him to file this court. The rain water of the plaintiff's house falling on the southern side of the suit property is another encroachment by the plaintiff which is objectionable by the Government as and when an occupation arises for that. The plaintiff himself is committing an illegal act admittedly. So the plaintiff is not entitled to file this suit for any relief, even if the encroacher has caused any prejudice to him in his unauthorised use of a piece of poramboke property. (ii) The third defendant has denied that he has not taken any action against the fourth defendant. According to him, action was taken against the fourth defendant and the encroachment was removed, but subsequently the fourth defendant had put up the hut. The third defendant had again taken steps for removal of the encroachment. A part of the encroachment is in the Municipal property and a part of it is in the Highways area. It is the case of the third defendant that the suit is pre-mature and that it is maintainable only when there is a demand and refusal; when there is no refusal, mandatory injunction will not lie in the suit. (iii) According to the fourth defendant, the description of the property is not correct and it is vague and misleading. The suit property is not on the southern side of T.S.No.1687/3 and that it is absolutely false to say that the suit property belongs to the plaintiff and that he is running a shop therein. He denied that the suit property was used as a lane to reach the inside of Anna Market and that he has not encroached upon the suit property for the last two years and put up temporary shed. It is the case of the fourth defendant that he is in possession of the suit property for more than 12 years and he has also prescribed title to the suit property by adverse possession. It is false to say that he had completely closed the lane preventing ingress and egress to Anna Market; If really there had been obstruction of lane to Anna Market, neither the plaintiff nor the Municipal authorities nor the public would have kept quiet for all these years; absolutely there is no nuisance either to the plaintiff or anyone else; the windows and ventilators were put up by the plaintiff only during last year long after the occupation of the fourth defendant; so, he cannot complain about the obstruction of light and air. The rain water is draining as usual. It is https://hcservices.ecourts.gov.in/hcservices/ the contention of the fourth defendant that the plaintiff has no right of way over the suit property and absolutely there is no cause of action for the plaintiff to institute the suit and the plaintiff is not entitled to get mandatory injunction. 4. At the time of trial, the Trial Court framed issues and dismissed the suit with costs. Aggrieved by the order of the Trial Court, the plaintiff went on appeal before the Additional Subordinate Court, Cuddalore in A.S.No.170 of 1993. The Lower Appellate Court, while considering the case raised the following grounds: (i)The suit property is a public lane leading to Anna Market (ii)The defendants 2 and 3 have admitted that the suit property as a public lane (iii) The fourth defendant has also admitted that he has encroached upon the suit property. (iv) The Court cannot issue direction to defendants 2 and 3 to remove the encroachment permanently. The encroachment is an illegal act and that the defendants 2 and 3 have got duty to remove the encroachment. (v)The fourth defendant did not get any permission from the third defendant. 5. On consideration of the above grounds, the Lower Appellate Court held that the appellant/plaintiff is not entitled to file the suit for mandatory injunction and dismissed the appeal with costs, thereby confirming the judgment of the Trial Court. Aggrieved by the said judgment of the Lower Appellate Court, the plaintiff has approached this Court praying to set aside the judgment and decree made in A.S.No.170 of 1993 dated 31.08.1994. 6. On an analysis of the entire circumstances, the issues framed by the Courts below and the grounds raised, this Court, while admitting the Second Appeal has formulated the following substantial questions of law: " (i) Whether the finding given by the Lower Appellate Court that prior sanction of the Advocate General to initiate legal action for the removal of the obstruction by way of mandatory injunction, by the owner of the property who claimed the relief in his individual right is necessary, is correct in law? (ii) Are the Courts below correct in holding that the plaintiff/appellant that the plaintiff/appellant is not entitled to the remedy of https://hcservices.ecourts.gov.in/hcservices/ mandatory injunction in the context of specific plea of demand regarding the encroachment by the fourth defendant in this case?" 7. Mr.R.Muralidharan, learned counsel for the appellant has contended that the Lower Appellate Court has not properly appreciated the oral and documentary evidence and has erred in its findings that the plaintiff/appellant ought to have obtained prior permission from the court as per Section 91 of the Code of the Civil Procedure. He further contended that the Lower Appellate Court should have held that the plaintiff/appellant has got easementary right to use the property and that it should have taken into consideration the stand of the third respondent who asserts that the 4th/5th respondent has encroached and as such the plaintiff/appellant is entitled to the relief of mandatory injunction. 8. Learned counsel for the appellant/plaintiff, in support of his contentions has relied on the following decisions: (i) This Court in 1962 (2) MLJ 201 in the case of Thangavel Nadar vs. Sudalaimada Nadar and others has held as under: “Hence, it appears to me to be clear that the Second Appeal fails, and ought to be dismissed, upon the precedents cited above. Above all, the most important reason why the appellant should fail is that the question what constitutes public nuisance within the meaning of section 91(1), Civil Procedure Code, is a question of fact, and hence it is imperative that this bar of suit should be put forward at the earliest stage. It is noteworthy that under section 91(2), Civil Procedure Code, the fact that such sanction is required does not take away any other right of suit which the party might independently possess. In Words and Phrases, Permanent Edition, Volume 28-A, page 729, under the section relating to public or private nuisance, I find the following dictum: ’Nuisance’ is public one, if it affects enjoyment and health of persons as part of public, while passing to and from public place where people had right to go, and it is the public annoyance, and not number of people annoyed that constitutes public nuisance.” (ii) In 1972 (II) MLJ 4 in the case of Damodara Naidu and others vs. Thirupurasundari Ammal and another, this Court has held as under: “7. The Courts below have found that the second item is the road frontage and that the first item abuts the road. The question then is whether the defendants are justified in putting up the wall AB preventing the https://hcservices.ecourts.gov.in/hcservices/ plaintiffs from having access at any point in AB(20 feet in length) touching the highway. The plaintiffs being owners of land abutting the highway have an undoubted right of access to the street from any part of their premises. In Mackenzie’s law of Highways, Twenty-first Edition at page 58 it is stated as follows: “The owner of land adjoining a highway has a right of access to the highway from any part of his premises. This is so whether he or his predecessors originally dedicated the highway or part of it and whether he is entitled to the whole or some interest in the ground subjacent to the high-way or not. The rights of the public to pass along the highway are subject to this right of access, just as the right of access is subject to the rights of the public, and must be exercised subject to the general obligations as to nuisance and the like imposed upon a person using the highway…. The right of the owner of land adjoining a highway to access to or from the highway from or to any part of his land is a private right, distinct from the right to use the highway as one of the public, and the owner of the land whose access to the highway is obstructed may maintain an action for the injury, whether the obstruction does or does not also constitute a public nuisance.” (iii) In 1996 (1) L.W.550 in the case of Kullammal vs. K.Perumal and another, this Court has held as under: “The owner of land adjoining a highway has a right of access to the highway from any part of his premises. This is so whether he or his predecessors originally dedicated the highway or part of it and whether he is entitled to the whole or some interest in the ground subjacent to the highway or not. The rights of the public to pass along the highway are subject to this right of access, just as the right of access is subject to this right of access, just as the right of access is subject to the right of the public, and must be exercised subject to the general obligations as to nuisance and the like imposed upon a person using the highway. … The right of the owner of land adjoining a highway to access to or from the highway from or to any part of his land is a private right, distinct from the right to use the highways as one of the public, and the owner of the land whose access to the highway is obstructed, may maintain an action for the injury, whether the obstruction does or does not also constitute a public nuisance. “ https://hcservices.ecourts.gov.in/hcservices/ Learned judge held in the said decision that any obstruction caused by a person is liable to be removed whether the obstruction does or does not constitute a public nuisance. It was held thus: “Thus it is seen that where there is a public highway the owners of and adjoining the highway have a right to go upon the highway from any point on their land; and if that right is obstructed by anyone the owner of the land abutting the highway is entitled to maintain an action for the injury, whether the obstruction does or does not constitute a public nuisance.” 15. … According to me, the dismissal of the suit as against the second defendant, appellant herein, was not proper. The courts below should have given a direction to the appellant (second defendant) to remove the obstruction. Mandatory injunction should have been granted against her also. Though initially she was not a party to the suit, she got herself impleaded as second defendant in the suit and, therefore, the relief sought for in the plaint should have been granted against her also. In case she fails to do so, necessary decree should have been passed directing the first defendant to implement the notice and after giving some time, if they also did not comply with the direction, the plaintiff should have been given an executable decree. 16. … When that opportunity has been given to her by civil courts, I feel it is better to modify the decree as follows: The Second Appeal is dismissed. No costs. The appellant and all persons claiming under her are directed to remove the construction put up by her in the pathway which causes obstruction, within two weeks from to-day. In case she fails to do so, the first defendant shall implement the notice already issued, and this decree can also be treated as a decree in favour of the Municipality (first defendant) to carry out the direction given above, on the expiry of the two weeks period granted to the appellant herein. The first defendant-Municipality is given one month’s time for this purpose, on the expiry of two weeks given to the appellant. In case the first defendant-Municipality also does not implement this decree and remove the obstruction, the plaintiff is at liberty to execute the decree and remove the constructions and all obstructions in the way, and realize the costs incurred by him in that regard, from the appellant. In case the plaintiff is driven to the necessity of getting the obstruction removed by executing the decree and if any police aid is necessary for such https://hcservices.ecourts.gov.in/hcservices/ purpose, he would be given necessary police assistance, without insisting on any fresh direction or order from court on separate application.” 9. On the other hand, Mrs.R.Revathi, learned Government Advocate appearing for respondents 1 and 2 contended that the appellant himself has rightly admitted that the suit property is classified as a poramboke land and it is situated to the south of his property in T.S.No.1687/03, where he is said to be running a provision shop. She further contended that the suit property was used as a lane with the knowledge of the Government or that anybody has got a right of easement over it. It is her further contention that the 4th respondent had encroached upon the suit property and steps were taken to remove the encroachment; then, again the 4th respondent has put up a temporary shed which will not give a cause of action to the appellant to file a suit, as the respondents 1 to 3 have rightly taken steps to remove the encroachment. 10. Learned Government Advocate for respondents 1 and 2 has also contended that the suit is not filed as a representative suit on behalf of people, who allege that the lane is closed preventing ingress and egress of anyone to Anna Market; the alleged nuisance said to be caused to the appellant, even if any, cannot give a cause of action to him to file a suit because he has no legal right as such; the appellant might not be prejudiced by any such encroachment in the matter of his getting light and air but he cannot feel aggrieved against the Government on that basis. At the end, learned Government Advocate has contended that the appellant's averments that there was a municipal tape on the suit property and the 4th respondent had removed it and the pipe therein caused loss to the Municipality or that the appellant's complaint to the Municipality with the signatures of other businessmen are not at all material facts to the frame of the suit. 11. The third and fourth respondents have been served with notice, but they have not appeared before this Court to contest the matter. 12. Heard the learned counsel on either side and have given careful consideration to the submissions made by them; perused the material records and the rulings relied on by the counsel. 13. The unsuccessful plaintiff is the appellant herein. He filed a suit for mandatory injunction for a direction to the respondents 2 and 3 to remove the hut put up by the 4th defendant in the suit property on the southern side of T.S.No.1687/3, which is classified as Poramboke land and marked as ABCD. From the plaint, it is seen that the plaintiff was running a provision shop in the suit property, belonging to defendants 2 and 3 and it was used as a lane to go into Anna Market. The plaintiff protested the attitude of the 4th defendant as he has obstructed light and air of the plaintiff through his window and ventilator on the western side of the plaintiff's house and that the rain water of the plaintiff's house drains on the https://hcservices.ecourts.gov.in/hcservices/ southern side of the property. The plaintiff filed the suit, since the 3rd defendant Municipality had not taken any steps against the 4th defendant in removing the encroachment. 14. On a perusal of the Written Statement filed by the defendants, it is seen that suit property was used as a lane with the knowledge of the government and that anyone has got a right of easement over it. According to the defendants 2 and 3, since the suit land is a poramboke property, people have been unauthorisedly using it without any right and the plaintiff is one such person. According to them, the 4th defendant had encroached upon it two years ago as stated in the plaint and put up a temporary shed thereon; but, he did not cause prevention of ingress and egress of anyone to Anna Market, which would give a cause of action to the plaintiff to file a suit against the Government for mandatory injunction. Moreover, the suit is also not filed as a representative suit on behalf of all such people. The alleged nuisance caused to the plaintiff, even if any, cannot give a cause of action to the plaintiff to file the suit, because he has no legal right as such. The plaintiff must or might not be prejudiced by any such encroachment in the matter of his getting light and air but he cannot feel aggrieved against the government on that basis. The said encroacher's window and ventilator on the western side of the plaintiff's house caused any such nuisance to the plaintiff so as to give a cause of action to him to file a suit. The rain water of the plaintiff's house falling on the southern side of the suit property is another encroachment by the plaintiff which is objectionable by the Government as and when an occupation arises for that. The plaintiff himself is committing an illegal act admittedly. So the plaintiff is not entitled to file a suit for any relief, even if the encroacher has caused any prejudice to him in his unauthorised use of a piece of poramboke property. 15. It is further seen from the Written Statement that the 3rd defendant had taken steps for removal of the encroachment put up the 4th defendant and that part of the encroachment is in the Municipal property and part of it is in the Highways area. According to the 3rd defendant, the suit is pre-mature and that it is maintainable only when there is a demand and refusal; when there is no refusal, mandatory injunction will not lie in the suit. According to the 4th defendant, the description of the property is not correct and it is vague and misleading and that the suit property is not on the southern side of T.S.No.1687/3 and that it is absolutely false to say that the suit property belongs to the plaintiff and that he is running a shop therein. According to the 4th defendant, the suit property was used as a lane to reach the inside of Anna Market and he has not encroached upon the suit property and put up temporary shed therein. It is his further case that he is in possession of the suit property for more than 12 years and he has also prescribed title to the suit property by adverse possession. It is false to say that he had completely closed the lane preventing ingress and egress to Anna Market; If really there had been obstruction of lane to Anna Market, neither the plaintiff nor the Municipal authorities nor the public would have kept https://hcservices.ecourts.gov.in/hcservices/ quiet for all these years; absolutely there is no nuisance either to the plaintiff