IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 10.08.2011 CORAM THE HONOURABLE MR.JUSTICE R.S. RAMANATHAN S.A. No.748 of 2011 A. Arumugam ... Appellant/Plaintiff -vs- 1. P.M. Sayinathan 2. P.M. Udayakumar 3. Thilakavathi 4. Radhika 5. Karthika 6. Visalakshi 7. V.K.S. Kumaravel 8. G.S. Arumugam 9. Gobichettipalayam Municipal Council, Gobichettipalayam, Erode District rep by its Commissioner ... Respondents/Defendants Prayer: Appeal filed under Section 100 of C.P.C. against the judgment and decree dated 23.12.2010 in A.S. No.47 of 2010 on the file of Subordinate Judge, Gobichettipalayam confirming the judgment and decree dated 15.06.2010 made in O.S. No.212 of 2007 on the file of District Munsif Court, Gobichettipalayam. For appellant : Ms. AL. Ganthimathi For respondents: Mr. T. Chezian for R8 No appearance for R1 to R7 & R9 O R D E R The unsuccessful plaintiff is the appellant. The plaintiff filed a suit for declaration that he has got a right of pathway over the suit property and for mandatory injunction directing the respondents to restore the approach road having 40 feet width and 100 feet length so as to have access to the appellant's property. 2. The case of the appellant/plaintiff was that the plaintiff/ appellant is the owner of 4.50 acres in Survey No.174 and P.P. Murugaian and his sons namely the defendants 1 and 2 are the owners of 8.60 acres comprised in Survey Nos.175, 176 and 204/A2 adjoining the property belonging to the appellant/plaintiff. As per the master plan, Survey Nos.174, 175 and 175 were notified as industrial area https://hcservices.ecourts.gov.in/hcservices/ and the defendants 1 and 2 and their father Murugaian converted the total extent of 8.60 acres in Survey Nos.175, 176 and 204/A2 as residential areas and applied for layout in the year 1992 and the layout was approved by the Director of Town and Country Planning in Proceedings No.306/92 and the same was also approved by the ninth respondent on 08.04.1992. They named the property as J.J. Nagar and authorised the eighth respondent to sell the property by appointing him as Power Agent and several plots were sold in J.J. Nagar and houses were constructed. 3. It was further stated that in the layout approved by the Director of Town and Country Planning in the year 1992, the respondents 1 to 7 formed a road having width of 40 feet and length of 100 feet and that road ends with the property belonging to the appellant and the appellant was using that road as an approach road to reach Sathy-Erode Main road and that road was also used as a connecting road to reach the various plots in the layout approved by the authorities. While so, the respondents 1 to 7 applied for revised layout plan and as per revised layout plan, they converted the 40 feet road which connects plaintiff's property into plots and by reason of the conversion of the road into plots where Kalyana Mandapam was also built, the plaintiff's access to the main road was blocked and therefore the suit was filed for declaration and for mandatory injunction. 4. The first respondent contested the suit stating that the plaintiff has no right to question the alteration of the layout and the Power Agent namely the eighth respondent herein applied for revised layout, without the consent of the owner of the property and he purchased the property which was converted into Thirumana Mandapam and on coming to know of the same, they also cancelled the power given to the ninth defendant namely eighth respondent herein. They further alleged that the plaintiff has no right to question the approval of the layout by the authorities and he is not entitled to seek the relief without challenging the approval of road by the competent authorities. The ninth defendant/eighth respondent, the power agent of the defendants 1 to 7 filed a separate statement stating the suit is barred by limitation and the revised plan was approved in the year 1995 and the plaintiff has no locus standi to question the revised layout and the plaintiff never had any access through J.J. Nagar layout formed in Survey Nos.175, 176 and the plaintiff's are having clear access to the main road and therefore the plaintiff's suit is liable to be dismissed. 5. The Trial Court dismissed the suit holding that the suit is barred by limitation, as the plaintiff/appellant has not taken any steps from 1999 till 2006 to file a suit and the plaintiff has also did not come to Court with clean hands and the plaintiff has no right over the 40 feet width road in the original layout approved by the authority. The First Appellate Court concurred with the findings of the Trial Court and further held that the plaintiff/appellant has got https://hcservices.ecourts.gov.in/hcservices/ access to the main road through East West Pillaiyar Road and he has not filed the suit within three years from the date of reply given by the Director of Town and Country Planning and the appellant had no title to the suit property and therefore the appellant cannot ask for declaration. Hence the second appeal. 6. Ms. AL. Ganthimathi, learned counsel for the appellant submitted that admittedly in the year 1992, the layout was approved and as per the layout, road having a width of 40 feet and length of 100 feet was provided which ends with the appellant's property and that road is the suit property and that road was used by the appellant/plaintiff to have access to the main road and without the knowledge of the appellant that road was taken and it was converted into a Thirumana Manadapam and another layout was applied for deleting the suit property road from the original layout and that was approved and the defendants/respondents have no right to convert the property which was earmarked as road in the layout and therefore the plaintiff/appellant is entitled to the relief of declaration. Learned counsel for the appellant further submitted that as per the provisions of the Tamil Nadu Town and Country Planning Act and the Developments Rules, once a layout was approved earmarking area for roads and other common areas that cannot be altered and therefore the respondents cannot alter the road which was originally mentioned in the earlier layout and hence the plaintiff is entitled to declaration. Learned counsel for the appellant further submitted that the Courts below erred in holding that the suit was barred by limitation and submitted that the revised plan was approved only in the year 1995 and within 12 years the suit was filed and even though the relief of mandatory injunction has to be claimed within a period of three years having regard the declaration and relief of mandatory injunction as prayed for it has to be construed as a prayer for declaration and recovery and possession and therefore the suit is not barred by limitation. 7. The following substantial questions of law arose for consideration on the basis of the arguments submitted by the learned counsel for the appellant: 1. Whether the courts below are right in holding that the suit filed by the appellant was barred by limitation? 2. Whether the respondents 1 to 7 are entitled to convert an area which was earmarked as road so as to prevent access to the appellant to reach the main road. 8. After hearing the arguments of the learned counsel for the appellant and having regard to the admitted facts, one more substantial question of law arises for consideration namely whether the plaintiff has got any locus standi to file the suit? https://hcservices.ecourts.gov.in/hcservices/ 9. The plaintiff/ appellant filed a suit for declaration to declare his right to have 40 feet width road described as suit property to be used as approach road from his property to reach the main road and for mandatory injunction directing the respondents to restore the road as provided in the original plan. The following facts are not in dispute: a) The suit property namely the road having a width of 40 feet and length of 100 feet situate in Survey No.175. b) The appellant/plaintiff is the owner of the property in Survey No.174 and he has no right over the property in Survey No.175. 10. The case of the appellant/plaintiff was where the Survey Nos.175,176 and 204/A2 having an extent of 8.60 acres belonging to respondents 1 to 7 and they applied for layout in the suit of 8.60 acres and layout was approved in the year 1992 and as per the layout there was a road as described in the suit property and that road ends with the property in Survey No.174 belonging to the appellant and after providing the road, the respondents 1 to 8 applied for revised layout by converting the road into plots and used as Thirumana Mandapam and by reason of the conversion of the road into plot the plaintiff's/ appellant's access to the main road was blocked and therefore the suit was filed. 11. According to me, when the appellant/plaintiff has no right over Survey Nos.175, 176 and 204/A2, she cannot claim any right over the road originally formed by the owners of the property in Survey Nos.175, 176 and 204/A2. A specific question was put to the learned counsel for the appellant whether the appellant is claiming any right of easement by necessity over the road and the learned counsel for the appellant replied that the appellant is not claiming any right of easement by necessity in respect of the suit property. Therefore having regard to the specific submission of the learned counsel for the appellant that the appellant is not claiming any easement of necessity over the suit property, in my considered opinion, the appellant cannot maintain the suit against the respondents as he has no right over the property in Survey Nos. 175, 176 and 204/A2. When the appellant has no right to question the act of the respondents in changing the road, the appellant cannot maintain a suit and in my opinion, the appellant has no locus standi to file a suit. Hence the substantial question of law No.3 is answered against the appellant. When the above substantial question of law is answered against the appellant and when this Court holds that the appellant has no locus standi to file a suit to claim the right over the suit property, the appellant is not entitled to the reliefs prayed for. 12. It is also not open to the appellant to question the revised layout approved by the authorities, as admittedly the appellant has no right over the suit property. No doubt the areas which were earmarked as a road, park and other common areas cannot be converted https://hcservices.ecourts.gov.in/hcservices/ into residential plots. But the owners are entitled to apply for revised plan and it is for the authority to approve the revised plan or not. In this case admittedly the authorities were satisfied with the revised plan and granted approval and as per the revised approved plan, the area which was originally earmarked as road, suit property, was reconverted into plots and the same is used as Thirumana Mandapam. The appellant having not purchased any property in Survey Nos.175, 176 and 204/A2 is not entitled to question the revised approved plan and hence the second substantial question of law is answered against the appellant. As I have held that the appellant has no locus stand and the respondents are entitled to apply for revised plan by converting any common area and it is for the authorities to consider the same and the authorities also approved the revised plan, the suit filed by the appellant is not maintainable and therefore there is no need to answer the first substantial question of law. 13. In the result, the appeal is dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vga To 1. The Subordinate Judge, Gobichettipalayam 2. The District Munsif Gobichettipalayam. 1 CC to M/s.K.V.Muthu Visakan, Advocate, SR.49342 1 CC to M/s.A.L.Ganthimathi, Advocate, SR.49391 S.A. No.748 of 2011 RV(CO) SRA(15/11/2011) https://hcservices.ecourts.gov.in/hcservices/