Kaliappan and Another vs V. Durai and Another

S.M. Abdul Wahab, J.—The unsuccessful defendants 1 and 2 are the appellants in this Court.

The plaintiff has filed the suit for declaration of the plaintiffs right of access at all points from the A schedule property to reach the Madhavaram

Milk Colony Road (Perumal Koil Street) on the north and for consequential relief of the removal of the thatched huts and structures put up by the

defendants in schedules ''B'' and ''C'' of the plaint causing obstruction to the plaintiff and for permanent injunction restraining the defendants from in

any way extending the encroachment further into the plaintiffs property and restraining the defendants from interfering with the peaceful possession

of the plaintiffs A schedule property.

The first defendant alone filed the written statement. According to the first defendant, the plaintiff is the owner of the A schedule property. But

the properties in ''B'' and ''D'' schedule are in possession and enjoyment of the defendants for the 40 years. They have also got patta in 1970. The

plaintiff has access to his property on the north-east from the Perumal Koil Street. Similarly the plaintiff has also access to his property from the

southern side. The properties mentioned in ''B'' to ''D'' were originally promboke land now have been assigned to various parties. The plaintiff has

no right in respect of the property in occupation of the defendants.

The trial Court framed four issues and the main issue related to the right of the plaintiff for declaration. The trial Court after considering the

evidence and arguments on both sides, found that the plaintiff has right to have access to the main road from each and every point from his land.

Therefore, the decree was granted declaration, mandatory injunction and permanent injunction. Three months'' time was also granted for removal

of the huts put up by the defendants.

As against the judgment and decree, the defendants 1 and 2 preferred the appeal. The appellate Court confirmed the judgment and decree of

the trial Court. Hence, rejected the appeal.

Aggrieved against the judgment of the appellate Court, the defendants-appellants are before this Court.

Learned Counsel for the appellants contended that the Courts below have erred in not taking into account the vital fact namely the existence of

the promboke lane between the road and lands. The fact that the structures were put up only in the promboke land. The Government issued

memos and subsequently have taken steps to issue patta.

On the other hand, learned Counsel for the respondents contended that as per the decisions of this Court reported in K. Sudarsan and Others

Vs. The Commissioner, Corporation of Madras and Others, and Damodara v. Thirupurasundari AIR 1972 Mad 386, the plaintiff has every right

to approach the main road from the land. Therefore, the Courts below rightly held in favour of the plaintiff. Hence, there is no necessity for

interference by this Court.

From the evidence, it is clear that between the road in question, now known as Milk Colony Road and formerly known are Perumal Koil Street

and the particular land belonging to the plaintiff, that is ''A'' schedule, there the promboke lands shown as road margin by the Commissioner himself

in Ex. C-2. The trial Court has referred to this fact and states that the Commissioner has noted that the defendants 1 to 3 have encroached the

boundary of the road and put up thatched huts. The trial Court has also referred to the evidence of D.W. 1, who has stated that their lands belong

to the Government as Promboke. But the trial Court has found that they have encroached fully on the boundary limit of the road by putting up

thatched structures blocking the access from the land of the plaintiff to the road. Based upon the said finding, he has granted the decree. The

Commissioner also in his sketch Er. C-2 has shown that the encroachment is on the road margin. This has helped the trial Court, to arrive at the

finding mentioned above.

However, the appellate Court has stated that there are promboke lands between the highway and the ''A'' schedule property. ''B'' and ''D''

schedule properties are the promboke lands. But the defendants have put up structures in the ''B'' and ''C'' schedule properties and are living there.

The appellate Court though found that there were promboke lands between the highway and the plaintiffs land, he has chosen to confirm the

judgment and decree of the trial Court, on the ground that no patta was issued to the defendants. The lower appellate Court has also relied upon

the judgments reported in K. Sudarsan and Others Vs. The Commissioner, Corporation of Madras and Others, .

The existence of promboke land makes difference between the cases referred to above and the present case. From Exs. B-4; B-5, B-6 and

X-1 we are able to see that there are promboke lands between the road and the plaintiff''s land. The defendants have made applications'' to the

Tahsildar for assignment of the lands occupied by them. As per Ex. X-1 proposals have been sent to the special officer enclosing the necessary

sketch. In the sketch, the land occupied by the defendants 1 and 2 is classified as S. No. 2A/19 and it is also classified as Government Promboke.

In the communication dated 3-12-1991, the Special Officer has intimated to the Third Assistant Judge, City Civil Court, Madras that necessary

steps would be taken to issue patta, as per the claims made. These documents have been produced through D.W. 2, but in spite of it, the trial

Court has not taken note of this fact. Similarly, the appellate Court also has ignored this fact.

It is true that the owner of the property abutting or adjoining the road or street has certainly access to the road, and (sic) constructing the hut or

building blocking such (sic) any obstructions whatsoever from any body. But that is not the case here. We have promboke lands and the

promboke lands are belonging to Government. In this case, the defendants 1 and 2 have occupied the lands and put up thatched huts and

subsequently steps have been taken to issue putta also in their favour as is evidenced from Ex. X-1. Even assuming that the defendants are not in a

position to get the patta, that is the matter between the Government and the defendants. The plaintiff cannot have any say over the promboke

lands.

Learned Counsel for the respondents cited the following authorities:

K. Sudarsan and Others Vs. The Commissioner, Corporation of Madras and Others, ; and

AIR 1972 Mad 386.

Both the cases relate to the building adjoining to the highway or the street. It is not found in those cases that there were promboke lands in

between the highway and private property. Therefore, I am of the view that the above two decisions are not helpful to the case of the respondents.

However, it is evidenced that the defendants are occupying the lands adjoining to the plaintiffs land. There is justification for the plaintiff to

apprehend that the defendants are likely to encroach upon his lands. In paragraph 11 of the plaint, the plaintiff has prayed for the relief of

permanent injunction restraining the defendants from in any way extending the encroachment further into the plaintiffs property and for permanently

restraining the defendants from in any way interfering with the peaceful possession and enjoyment of the plaintiffs ''A'' schedule property. It is found

that the defendants have encroached the promboke lands and put up thatched huts. As the encroachments are very near to the plaintiffs land, the

plaintiff will be entitled to permanent injunction restraining the defendants from encroaching upon the ''A'' schedule property and from interfering

with the peaceful possession and (sic) of ''A'' schedule property.

In the result, the judgment and decree of the Courts below are modified. There will be a decree in favour of the plaintiff with reference to ''A''

schedule mentioned property only. The defendants are directed not to interfere with the peaceful possession and enjoyment of the plaintiffs ''A''

schedule property only by way of encroachment or otherwise. The second appeal is partly allowed. However, there will be no order as to costs.

The suit will stand dismissed in other respects.