Ammajan Bibi vs M. Nawab John and orsl.

Bellie, J.—The first defendant Ammajan Bibi against whom a decree has been passed for mandatory injunction is the appellant in this second

appeal. The subject matter of the suit is a small piece of land measuring 15�'' X'' 10-1/2''. This has been described as ABCD in the plaint plan.

On this the first defendant has put up a thatched shed. On the north of it there is the house of the plaintiff, first respondent here, described as

AGFE in the plaint plan. It is the case of the plaintiff that the suit land ABCD forms part of a public lane belonging to the second defendant

Municipal Corporation, second respondent herein. He claimed that he has right to ingress and egress from his house through this suit land and

therefore the construction thereon by the first defendant is obstructing that right of his and hence a mandatory injunction shall be passed directing

her to remove the said construction.

As against this the first defendant appellant denies that the suit land belongs to the second defendant and contends that it belongs to herself and

the construction is therefor the past more than fifty years and in any event she has prescribed title by long adverse possession. Her further

contention is that in an earlier suit O.S. 540 of 1972, filed by the plaintiff for similar relief against her, he claimed right to have light and air to his

premises through the suit land and so he must be deemed to have given up ail other rights in the said land and therefore the present claim that he

has got a right to use it for ingress and egress from the house cannot be sustained. The second defendant-Corporation filed a statement supporting

the case of the plaintiff. The third defendant-Government third respondent herein, has adopted the written statement of the second defendant.

The trial Munsif, Madurai, on consideration of the evidence adduced in the case held that the suit land belong to the Government and it is a part

of public lane and the first defendant has not acquired any title by a adverse possession and the impugned construction is an obstruction to the

plaintiff''s right of ingress and egress from his house. It further held that the decision in the previous suit is not a bar to the present suit. Oh these

findings, he decreed the suit as prayed for.

The first defendant filed an appeal and the learned First Additional District Judge, Madurai entirely agreed with the findings of the trial court and

he further held that the plaintiff has right to seek relief of mandatory injunction against the first defendant. Therefore he dismissed the appeal and

confirmed the judgment of the trial court.

In view of the concurrent findings of the trial Court and the first appellate Court that the suit land belongs to the Municipal Corporation and the

first defendant has no title to the suit land by grant, we have now to proceed only on the basis of those findings. As regards the finding of the trial

court and the first appellate Court that the first defendant has not prescribed title by adverse possession, considering some of the points that arise in

the case which the Courts below have lost sight of and which we will discuss now, I think that concurrent finding also is not necessary to be re-

examined.

It must be remembered that the suit is for a bare mandatory injunction to direct the first defendant to remove the construction put up by her in

the suit land. Even in the plaint it is stated that the construction has been put up as early as 1961. The plaintiff has filed his first suit O.S. 540 of

1972 in respect of the same property only in 1972, and that suit also was for issue of a mandatory injunction (relief for declaration of title or in the

alternative easementary right of light and air had also been prayed for). Therefore 11 long years had elapsed before the plaintiff sought for the

equitable relief of mandatory injunction. The first suit had been filed on the allegation that the land belonged to the plaintiff and the first defendant

trespassed upon it and further on the allegation that the plaintiff was entitled to have light and air through the land to his house. Before that suit was

taken up for trial the plaintiff filed a memo stating that the land belonged to the Municipal Corporation and not to him and he was pressing his case

only on the ground that he had right to light and air through the Sand. That suit (though decreed in the trial court) was ultimately dismissed in the

appellate Court holding that the plaintiff''s claim for right to have light and air was not bona fide. Only after that the plaintiff has filed the present suit

claiming that he has right to pass and re pass to his house through the suit land. It appears at present there is no door way to get into the suit land

from the house of the plaintiff. To a querry put by me to the learned counsel for the first respondent he stated that there is no doorway as yet but

the plaintiff is going to have one.

The question for arises: If really he wants the structure in the suit land to be removed for the purpose of having egress and ingresss to his house

through the land, why did he not make this claim in his first suit. This claim is made now, even as admitted by him, after 15 years of the erection of

the structure by the first defendant according to the first defendant his structure is there for the past 50 years. This will clearly show that there is no

bona fide in the present claim also.

Possibly the plaintiff does not like the existence of a thatched shed just on the backside of his house and therefore he wants that to be removed

but this does not give him any legal right to get the shed removed. If the suit land does not belong to the defendant and it belongs to the Municipal

Corporation and the defendant has encroached upon it then it is open to the Corporation to take steps for removal of the hut. So, it is a matter

between the Corporation and the defendant. The plaintiff cannot simply say that the defendant has encroached upon the land of the Corporation

and therefore she must be thrown out from there.

Mr. Narayanaswami, learned counsel for the first respondent-plaintiff submits that when a person has unauthorisedly put an construction in a

public lane of the Municipal Corporation, the neighbour of the place will have right to sue the defendant for mandatory injunction against him. In

support of this submission he relies on a decision in Krishna Kali Mallik Vs. Babulal Shaw and Others, But that is not a case in which contraction

was put up in a public lane belonging to the Municipal Corporation but the defendant therein put up a construction in his land in violation of the

statutory rules relating to construction of buildings and the plaintiff therein who was a neighbour thereof felt aggrieved because it affected the right

of enjoyment of his property, and it was held that the defendant owes a duty and obligation under the statute not only to the Corporation as

custodian of the owners of the buildings but also to the plaintiff. Thus the case cited does not apply to the facts of the present case. Further it is not

known how long after the offending construction was put up the suit was filed in that case. Therefore this ruling is not of any assistance to the

plaintiff.

Then the learned counsel cited another decision in K. Sudarsan and Others Vs. The Commissioner, Corporation of Madras and Others, which

shows that a highway is a passage over which the public are entitled to pass and repass and the owner of the property adjacent to the high way or

a public street has got a right of access to such highway at any point of which his land actually touches it. With this proposition of law there is

absolutely no quarrel, but the point is the plaintiff having acquiesced in the defendant''s putting up a structure on a part of the public lane and as long

as 16 years having elapsed after such construction, can the plaintiff get that structure removed by getting an order of mandatory injunction on the

plea that he wants to have ingress and egress from his house through that land. As held above, firstly the circumstances would show that there is no

bona fides in the plaintiff''s claim and secondly he is definitely guilty of laches and therefore the equitable and discretionary relief of mandatory

injunction cannot be granted. Therefore, the judgments of the Courts below that the plaintiff is entitled for an order of mandatory injunction against

the defendant cannot be upheld. Consequently both the judgments of the first appellate and the trial courts are set aside and the appeal is allowed

and the suit is dismissed. Considering the circumstances of the case there will not be any order as to costs.