Neti Gopalakrishna Gokhle and another vs Brahmandam Narasimham and others

Subba Rao, C.J.—These two appeals arise out of O. S. No. 73 (sic)50 on the file of the District Munsif''s Court, (sic)li, a suit filed by the 1st respondent for a (sic)anent injunction restraining the 4th defendant from assigning or otherwise alienating the (sic)ite and for a mandatory injunction directing defendants 1 to 3 to remove the encroachments the said site.

To appreciate the facts and the contended of the parties, it will be convenient and (sic)sary, at the outset, to notice the topogra(sic) the locality in question wherein the im(sic)d encroachment is alleged to have been(sic). In Tenali town, in ward No. 7 one of the roads Satyanarayana Park Road runs from to south. (sic)n equally important road called Andhra (sic) Road runs from west to east. The plaintiff house is situated at the corner which the Andhra Ratna Road makes with Satyanarayana Park Road. Satyanarayana Park Road abuts plaintiff''s house on the east whereas the Andhra Ratna Road abuts it on the south.

(sic)e width of the Andhra Ratna Road is 57 d that part of the road abutting the pre(sic) of the plaintiff is about 165 feet. The (sic)f has been using these premises for manu(sic)ig Olu paints since about 15 years prior suit. Except for a thatehed shed, the (sic)n portion of the plaintiff''s house is an (sic)te. South of that open site and abutt(sic) Andhra Ratna Road, the plaintiff erect(sic) compound wall which runs from west to (sic).

In the middle of the compound wall, there (sic)e of the width of 5 feet leading into the Andhra Ratna Road. He has also another egress(sic) eastern side of his house to Satyanarayana Park road. There was a big tree marked (sic) plaint plan at the junction of the two(sic). About 10 years prior to the filing of the defendants 1 and 2 and others, who were (sic) of the Devi Bhakta Brundam, erected (sic)mandir ABCD with brick and lime and (sic)pial E-1 F-1 G-1 and H-1 shown in the(sic).

The said Mandir and the pial were built under the shade of the said tree. Subsequently, they made further encroachments shown in the plan as EFGH and IJKL. The next step was that the tree was cut off and a shed was constructed with corrugated zinc sheets with eaves extending on all sides shown as TUVW in the plan and the floor of the entire area L-1 EFGHJK was slabbed.

Later on they levelled up the ground MNOP and loose slabs were placed over the surface QMRS. The said encroachment is about 60 feet cutting the Andhra Ratna Road near the premises of the plaintiff into two leaving a road of the width of 5 feet 6" between the southern boundary wall of the plaintiff and the encroachment.

The encroachment into the western part of Satyanarayana Park Road is about 6 feet 9 inches. The plaintiff alleged that the said unauthorised encroachment obstructed his accesses to the road and light and air to his premises, destroyed his right of prospect and became a source of several ''animosities''. He further pleaded that the said encroachment was a public nuisance inasmuch as it permanently blocked the use of the Andhra Ratna Road to its entire width, prevented its improvement, proved dangerous to public traffic and became a rendezvous for all bad characters.

Alleging further that the 4th defendant, the State, in whom the ownership of the site vested had no right to assign the site and that the 3rd defendant charged with the duty of removing the encroachments failed to do its duty, the suit was filed for a permanent injunction restraining the 4th respondent from alienating by gift, sale or otherwise the site marked OPHTUVWN in the plan and for a mandatory injunction directing defendants 1 to 3 to remove the encroachment over OPHTUVWN including all superstructures.

Defendants 1 and 2 in their written statement stated that the said encroachments were made about ten years ago with the knowledge of the authorities concerned and that the plaintiff also had no objection to the same and indeed he took interest and contributed to the various functions and festivities of the Devi Mandir.

They also denied that the said construction had, in any way, obstructed the plaintiff''s access or violated any of his rights or that it was a public nuisance. They raised pleas that the suit was not maintainable without the consent of the Advocate-General and that, in any event, the plaintiff was estopped by his laches and acquiescence to ask for the discretionary remedy of mandatory injunction.

Defendants 3 and 4 who in the main supported the case of defendants 1 and 2 pleaded that the plaintiff was not entitled to any of the reliefs claimed against them.

The learned District Munsif, on a consideration of the evidence found that the encroachment was not causing any obstruction to light and air or the prospect of the plaintiffs house. He found that the loose slabs placed by defendants 1 and 2 before the eastern bigger gate of the southern compound wall of the plaintiff at the place marked QMOR in the plan caused obstruction to the plaintiff for taking his carts and, therefore, he directed them to be removed. The suit in other respects was dismissed against the defendants.

On appeal, the Subordinate Judge held that the encroachment constituted private as well as public nuisance, that the 3rd defendant had no right to allow the encroachment in question to stand and that the 4th defendant had no right to assign the site encroached upon in derogation of public and private rights.

The learned Judge found that the encroachment caused special damages to the plaintiff and that he did not acquiesce in the conduct of the defendants. In the result, he set aside the decree of the learned District Munsif and decreed the suit. Defendants 1 and 2 preferred Second Appeal No. 577 of 1954 against the said decree and the 4th defendant (the State) preferred Second Appeal No. 1008 of 1954 against the same decree.

Learned Government Pleader contends that it has not been established by the evidence that the plaintiffs right to air or light or access was obstructed by the encroachment or that any special damage was caused to him and that in any view, the plaintiff having acquiesced in the constructions, he is now estopped from claiming the discretionary remedy of injunction.

That there was an encroachment over public highways admits of no doubt. The first question is whether the Municipality or the State have any statutory power to authorise any such encroachment, Under S. 61 of the District Municipalities Act, all public streets in a Municipality vest in the Municipal Council though the State Government may by notification withdraw any such street from the control of the Council.

No such notification withdrawing the control of the two high-ways, the Andhra Ratna Road and the Satyanarayana Park Road was issued by the State Government, and therefore, the said two high ways vested and continued to vest in the Tenali Municipality.

Section 163 (1) (c) of the Act empowers the Municipal Council permanently to close any public street or part thereof with the special sanction of the State Government. There is nothing on record to show, and indeed it is not a case of the Municipality, that that part of the road covered by the encroachment was closed with the special sanction of the State Government.

So long as the street continues to be a public street, S. 180 imposes a prohibition against obstruction or encroachments over such streets. Section 182 enjoins a duty on the executive authority to remove or alter any such encroachment made.

It is, therefore, obvious that the Municipality has no power to sanction the impugned encroachment on the main roads. See Emperor v. Vishwanath Nana, ILR 50 Bom 676: (A 1926 Bom 535) (A).

Nor does Madras Act III of 1905, which reliance is placed by the Government Pleader, empower the Government to ign(sic) the rights of the public so long as the sti(sic) continues to be a public street. Under S. 2 the said Act, all public roads, and streets declared to be the property of the Government except as may be otherwise provided by law for the time being in force subject always all rights of way and other public rights.

The Government''s proprietary right (sic) public streets is, therefore, subject to all rights of way and other public rights. So (sic) as Andhra Ratna Road and the Satyanarayana Park Road continue to be public high-ways, Government also has no power to allow ot(sic) to encroach upon the said roads causing p(sic) nuisance or to assign the same to them.

The constructions made by defendant (sic) and 2 and others cannot, therefore, be sus(sic)ed on the ground that they were allowed in exercise of a statutory power conferred e(sic) on the Municipality or on the Government. 10. The next question is whether the constructions infringed any right of the plaintiff. Though the learned Subordinate Judge held that the plaintiff''s right to air, light, (sic)tage and access has been violated by the (sic)achments, the learned counsel for the respondents confined his argument only to the plaintiff''s right to access and frontage. Salmo(sic) Torts defines the scope of the right of the (sic)cess to a highway at page 301 thus:

Every person who occupies land im(sic)tely adjoining a Highway has a private of access to the highway from his lan(sic) vice versa; and any act done without justification whereby the exercise of the (sic)vate right is obstructed is an actionable w(sic) At page 302, the learned author in bringi(sic) the difference between the right of ac(sic) a highway and the right of passing alo(sic) highway says:

The former is a private and the (sic) public right, and for any infringement former an action will lie; whereas as (sic) see in the next section, no action will infringement of the public right of pass (sic)cept on proof of some special or pa(sic) consequential damage suffered by the plaintiff.

Peacock in his book ''Law of Easemen (sic) Edition) states the law much to the sa(sic) at page 240. The learned author says: "In the case of an ordinary high(sic) public are entitled to the use of the enti(sic) of it as the highway and are not con the part which may be metalled or order for the more convenient use of (sic)riages and foot passengers.

At page 243, the following passage ap(sic):

An owner of land which is conti(sic) a public highway has the right of acce(sic) highway from his land and vice vers(sic) (sic)nt along the line of contact whether the soil the highway vested in him. or not.

The aforesaid passages lay down the (sic)w on the subject in such clear terms as to (sic)ake any further citations unnecessary. But the learned Counsel placed before us a number of decisions on the subject, we shall briefly (sic)tice them.

In Chaplin and Co. Ltd. v. Mayor of (sic)e City of Westminster, 1901-2 Oh. 329 (B). (sic)ckley J. in clear terms defines the right of (sic)ess to a public highway. At page 334 the learned Judge says:

A person who owns premises abutting on highway enjoys as a private right the right stepping from his own premises on to the (sic)hway and if any obstruction be placed in door-way or gate-way........... So as to (sic)vent him from obtaining access from his own raises to the highway, that obstruction would an interference with a private right." (sic)trasting this right with a public right to the highway, the learned Judge observes:

But immediately that he has stepped on the highway and is using the highway, what is using is not a private right but a public (sic).

Where the plaintiff and the defendant (sic)e the respective owners and occupiers of adjoining houses abutting on a street which a public highway, and the plaintiff affixed (sic)ds at right angles to the front of his house (sic)close to the defendant''s side wall covering wall to a height of twenty-two feet from the (sic)ment, Rowl(sic)tt J. in Cobb v. Saxby 1914 3 (sic) 822 (C), held in a counter-claim made by the (sic)dant that the act of the plaintiff was a wrong interference with the private right of the (sic)dant. He extended the scope of a party''s of access to the highways to the right to from the premises to the highway and vice (sic) including the right of access to a wall of premises if there is no door or other open(sic).

At page 826, the learned Judge observes:

Although no authority precisely in point (sic)een cited, I am of opinion that the owner house adjoining a public highway has pre(sic) the same rights as regards the highway respect to the wall of his house as he was (sic)e case of a door or other entrance leading his house on to the highway.

(sic)e has the right to do anything he likes to (sic)all, for example to display advertisements (sic)it, and if these rights are invaded or observed, he has in my opinion a good cause of (sic) against the person causing the inter(sic)ce with hist rights.

The decision is pressed into service by learned counsel for the respondent in sup(sic) of his contention that the right of access (sic)sed by law prohibits interference with (sic)ght at any point of his premises abutt(sic) highway whether there is an opening in(sic) highway from his premises or not.

The House of Lords in Marshall v. (sic)ol Corporation, 1935 A. C. 16 (D), authoritatively considered the scope of that right. There, the appellants were motor coach proprietors and owners of premises No. 1 St. Chad''s Road, Blackpool. St. Chad''s Road was a road running into the Blackpool Promenade.

The premises No. 1 had a narrow frontage to the Promenade and a long frontage to St. Chad''s Road. They abut on the Road, the footway about 8 feet wide intervening between the premises and the roadway which is about 20 feet wide.

The appellants who wished to have access from their premises to the roadway in St. Chad''s Road for the purpose of their vehicles and who have to cress the footpath, asked for permission which was refused by the Corporation. The House of Lords held that the petitioner had a right of access and that the Corporation in the circumstances, was not authorised under the statute to refuse the permission. In that context, Lord Atkin stated the legal position thus:

The owner of land adjoining a highway has a right of access to the highway from any part of the premises..........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.

Apart from any statutory provision, there is no obligation upon an adjoining owner to fence his property from the highway.............. Subject to special statutory provisions protecting foot paths, the right of access is not affected by the fact that part of the highway is only dedicated as a footway or is otherwise lawfully appropriated to foot passengers.

The law in India is not in any way different from that obtaining In England. In Dwarka Prasad Singh and Others Vs. Patna City Municipality and Another, the dispute related to a strip of land lying immediately to the east of the compound wall of the plaintiffs.

Between the strip and the public road there was a drain which received the drainage from the plaintiff''s ground through the openings in the compound wall. The Municipality leased out the said strip to the 2nd defendant and some more land to the east of it to the 1st defendant for the erection of petrol pump.

The plaintiffs claimed easements of drainage, passage, road frontage etc., and asked for restoration of the strip and the drain to their former condition. Dhavle J. held that the Municipality exceeded their statutory right in allowing the construction to be put up by the defendants interfering with the plaintiff''s right of access. As regards the plaintiff''s right of access, the learned Judge observes at page 317 (of I. C.) : (at p. 425 of AIR):

As to the right of road frontage and of access to the road, there was no dispute in the trial court that an owner of land abutting on a public road is entitled to access to such road at any point where his land actually touches it.

The Patna High Court in District Board of District Board of Manbhum Vs. Bengal Nagpur Railway Co. and Another, (F) accepted the view that the right of access to a highway at all points belongs not only to an owner but also to an occupier of land adjacent thereto and the latter is entitled to sue for the removal of any construction thereon if his right is interrupted thereby. At p. 939 (of ILR Pat): (at p. 204 of AIR), Manohar Lall J. says:

Even so the plaintiff, in my opinion has a right of access to the road, to every part of the roadside land which abuts on to his land even though he may have fenced it off or raised a wall for the convenience and the enjoyment of his contractors or servants and even if he had opened a gate-way towards the south.

17-a From the aforesaid discussion, it may, therefore, be accepted as settled law that the owner of a land which is contiguous to a public highway has a right of access to the highway from his land and vice versa at any point along the line of contract though he may have fenced his land off or raised a wall for his convenience.

In the present case, the plaintiff has certainly a right of access to the highway from his premises at any point which is in contact with the highway. But the question is whether the undoubted right of access has, in any way, been interfered with by any of the defendants.

The evidence adduced and the plan filed in the case clearly show that the plaintiff''s right of access to the public highway was only interfered with at the place QMSR by the defendants putting loose slabs therein. The learned District Munsif directed those slabs to be removed.

If those slabs were removed, there would be no further obstruction to his right of access. He can step into the highway at any point from his premises without any obstruction. But what is contended is that he has the right of access to the entire width of the road, but, in view of the construction put up by the defendants the plaintiff is precluded from coming directly into the highway wherein the construction is put up.

The right of access into the highway is different from the right of user of the public highway. The former is a private right and the latter a public one. The construction put up by the defendant leave unaffected 5 feet 6 inches of road abutting the plaintiff''s premises and is only of the length of 25 feet whereas the southern boundary of the plaintiff''s premises is of the length of about 165 feet.

The plaintiff has access to every bit of the highway abutting the premises and, even if he gets into the highway from the south-eastern corner of his premises by passing westwards about 25 feet, he can use the entire road.

We cannot, therefore, hold that the plaintiffs right of access into the public highway has been interfered with in any way by the construction put up by the defendants.

The next question is whether the plaintiff''s right of prospect has been affected by the constructions. Does the law recognise a(sic) right of prospect? Is it a legal injury if person intercepts the prospect of another? Butt v. Imperial Gas Co., 1866 2 Ch A 158 ((sic)) the Lord Chancellor ruled that the erection (sic) building will not be restrained because it inju(sic) the plaintiff by obstructing the view of his p(sic) of business. At page 161, Lord Chemsford, (sic) observed:

I suggested, in the course of the argument that if the building of a wall which merely (sic)tercepts the prospect of another, without instruction to his light and air, is not a legal injury, it was very difficult to see how a build: which merely obstructed premises from the v of the passers by could be the subject of an (sic)tion.

So too, Banerji J., in Gopi Natl Munno, ILR 29 All 22 (H) held that no ac(sic) would lie for the removal of erections in f(sic) of a shop merely on the ground that such e(sic)tions obstruct the view which passers-by (sic)merly had of the shop.

At page 23 Banerji J., observed:

The only right claimed is that the plaintiffs are entitled to undisturbed prospect their shop from the road....... it is admi(sic) that access to the plaintiff''s shop has not (sic) obstructed. All that is complained of is interruption to the view of the shops from neighbouring road. This would not entitle plaintiffs to have the constructions removed.

In Smith v. Owen, 1866 35 LJ Ch. (I) it was held that the court will not rest the erection of buildings which merely pre(sic) goods displayed in a shop from being seen (sic) places where they would previously have (sic)seen. The law on the subject is clearly s(sic) in Goddard on Easements (sixth edition) p. 116 to 118.

It is, therefore, clear that a mere obs(sic)tion to the view of another''s building or (sic) of business does not per se give rise to a (sic) of action unless the obstruction affects his of access or if it otherwise causes damage t(sic) building or business.

In the plaint, it is stated that by the imp(sic)ed construction on the highway, the plain right of prospect was completely destroyed that though he wanted to construct demo(sic)tion rooms on the southern side of his pre(sic) for the purpose of promoting his industry business, he had to give up the idea on ac(sic) of the said encroachment.

The learned District Munsif found that plaintiff gave up the idea of construction demonstration rooms because of the encroach. He also found that there was not enough on the site lying to the east of the main for the construction of demonstration room if he wanted, he could have built the demotion rooms at a place in his premises the whereof was not obstructed by the suit sh(sic).

The learned Subordinate Judge, while re(sic)gnising that the encroachment did not affect (sic) living portion of the plaintiff''s house in any (sic)y, held on some hypothetical considerations (sic)it it might affect the vacant site.

Apart from the fact that the plaintiff, in has no right of prospect in this case, it has been established that the constructions put on the highway in any way interfered with right of prospect or caused him damage.

It is then said that the encroachment is public nuisance and that it has caused special (sic)age to the plaintiff. In Salmond on Torts, (sic)ance to a highway is described as "an act (sic) without lawful justification whereby the (sic)cise of the public right of passage is objected or rendered dangerous."

The same author points out that the nuis(sic) to a highway is not actionable unless it (sic)es special damage to the individual. In words of the learned author, ''no such ac(sic) will lie save at the suit of a person who (sic) show special and particular damage suffer(sic) himself and distinct from the general in(sic)cidence endured by him in common with public at large.

The special damage that is necessary and (sic)ient to support an action must be of a sub(sic)al character, no fleeting or evanescent. See (sic)imin v. Storr, 1874 9 C P 400 (J). The said English Doctrine has been accepted followed in India. A Division Bench of the (sic)as High Court in Sayyad Hussain Saheb v. (sic)imhappa, 1913 Mad WN 991 (K) pointed (sic)at

(sic)he English rule that an action for the ob(sic)ion of a public highway is not maintain (sic)aless special damages are alleged and prov(sic)s been so long accepted in this country (sic) is impossible to question it now.

(sic)ting to the question of damage, Sundara (sic)states at page 992 thus:

(sic) seems to me to be clear that the mere at a person has to use a way more often (sic)nother and is therefore put to more in(sic)ience will not entitle him to maintain an (sic)for obstruction of the way.

(sic)a Iyer J. adds that the special damage, (sic)he plaintiff alleges in such causes, should (sic) substantial character.

(sic) Collins C. J. and Bensdn J. in Queen (sic)s v. Virappa Chetti, ILR 20 Mad 433 (L) (sic)wn the amplitude of the right to use a highway at page 434 thus:

(sic)e public is entitled to the use of the (sic)th of the public street however wide it (sic). Whoever appropriates any part of the (sic)y building over it infringes the right of (sic)lic quoad the part built over. The act necessarily cause obstruction to persons (sic)ay have occasion to use their public (sic)er the part encroached upon.

Viswanatha Sastri J. in Ramabrahma (sic) Lakshminarasimham. 1956 AP. LT (sic) 1957 AP 44) (M) repelled (sic)ment advanced before him, namely that (sic) to an individual member of the public to maintain a suit for the removal of an obstruction to a public highway which constituted public nuisance without proof of special damage. After considering the case law on the subject, the learned Judge observes:

I am humbly of the opinion that apart from S. 91, C. P. C. and in conformity with its provisions no action can be maintained by an individual against another for obstruction to a public highway without proof of special damage.

This rule is founded on adequate reasons of public policy that a man who may have committed some public injury shall not be harassed by innumerable actions by persons who have not sustained any damage or injury peculiar to themselves.

It had been enforced by Indian Courts as a rule of justice, equity and good conscience till 1924 and in my judgment has not been abrogated by the decision of the privy Council in AIR 1925 36 (Privy Council)

We respectfully accept and adopt the aforesaid observations.

Section 91 of the CPC recognises the said legal conception and creates a right of action to remedy a public nuisance with certain limitations. Under the section, in the case of a public nuisance the Advocate-General or two or more persons having obtained the consent in writing of the Advocate-General may institute a suit, though no special damage has been caused, for a declaration and injunction or for such other relief as may be appropriate to the circumstances of the case.

Apart from this section, no individual can maintain an action against another for a relief against public nuisance except on proof of special damage. The law vis-a-vis public nuisance has been firmly established. The public and every one thereof has a right to use the entire width of a public highway without obstruction.

Any person or body of persons or even a public body cannot interfere with that right unless statutorily or otherwise legally empowered to do so. Such an obstruction without any averment or special damage could be removed by following the procedure prescribed under S. 91, C. P. C.

But an individual cannot maintain a suit to remove it unless by reason of such obstruction special damage of a substantial character has been caused to him or to his premises.

In the present case, we have no doubt that the constructions put upon the highway constitute public nuisance, for it cannot be denied that they interfered with the use of the highway by the public and they were put up without any legal authority.

But the plaintiff cannot sustain the present action unless he proves that, by the said encroachment on the highway, special damage of a substantial character has accrued to him. In the plaint, the plaintiff alleges that the encroachment caused him the following special damage:

It obstructs the access to the plaintiffs premises from the south and is causing a lot of inconvenience in taking in stocks and clearing them from his premises. It obstructs all vehicular traffic into the plaintiff''s premises and is causing loss to the plaintiff in his business.

It prevents the plaintiff in having the full use of the Andhra Ratna Road, i.e., from having access to the road from any point on the plaintiff''s premises.

It obstructs light and air to plaintiffs premises and it is likely to result in injuring the health of the inmates of the plaintiff''s premises.

On account of the encroachment the value of the plaintiff''s premises has been adversely affected.

Plaintiff''s right of prospect was completely destroyed. Though plaintiff wanted to construct demonstration rooms on the Southern side of his premises for the purpose of promoting his industry and business, he had to give up the idea on account of the said encroachment. Thus he was precluded from expanding his industry or improving his business.

The encroachment became a source of several animosities on account of which the persons belonging to the "Brundam" are behaving in utter, disregard of the legal rights of others.

The learned District Munsif found that the plaintiff''s business did not receive any setback because of the encroachment, that sufficient space had been left between the temple and the southern compound wall of the plaintiff to enable him to reach the Andhra Ratna Road from every point in his compound, that it had not been made out that there was any obstruction of light and air to the plaintiff''s premises, that the encroachment did not prevent the plaintiff''s men and carts from reaching the small gate, that there was no possibility of any bad characters entering and committing actionable nuisances and that it had also not been established that the value of the premises had gone down.

The learned Subordinate Judge does not give any definite findings but on a consideration of the evidence assumes that the plaintiff''s rights must be affected by the encroachment. We agree with the learned District Munsif that except the encroachment shown as OPMN in the plan, it has not been proved that the rest of the encroachment has in any way caused substantial damage to the plaintiff.

If that encroachment is removed, as it was directed to be removed by the Court below, apart from some vague allegations and the apprehensions of the plaintiff, the record does not disclose that either the plaintiff or the members of his family have been physically affected, that, the plaintiff''s business, which the evidence shows was conducted on a very modest scale had got a set back, that his prospects of improvement had been retarded or that the plaintiff''s building has depreciated in value by the aforesaid encroachment.

We, therefore, agree with the learned District Munsif that it has not been established that the plaintiff has incurred any special damage of a substantial character to enable him to maintain the suit.

Finally, we are also satisfied that the conduct of the plaintiff disentitles him to the discretionary relief of injunction in the prese(sic) case. The construction of the temple was gradual process. The 3rd defendant in (sic) written statement traces the origin and the development of the temple thus:

The Municipal Council by its resolute No. 404(1) dated 30-3-1939 resolved to constr(sic) a platform around the Nidraganneru tree serve as a bathing place to the passerby. S(sic)sequently the public of the locality arranged the study of puranams by learned men (sic) gradually the place acquired importance.

As devi puranam was recited there for (sic) time Raja Rajeswari''s picture was placed (sic) small enclosure to import sanctity and sp(sic) its benign influence and heavenly bliss. O(sic) petition from the citizens of the place, the C(sic)cil passed resolution No. 354 dated 2-11-40 the construction of a mandiram for the Dev(sic). After the mandiram was put up, the ta(sic) gained importance, daily worship was cond(sic) and utsavams were being performed d(sic) Dasarah. The plaintiff along with P. Ws. 3 paid subscriptions for the performance o(sic) festivities. Exs. B-4, B-5 and B-6 of the (sic) 1945, 1946 and 1947 show that the plaintiff subscriptions for the festivities.

Ex. B-1 of the year 1945 indicates that plaintiff had painted the shrine. We are (sic)fied that the plaintiff also had taken part i(sic) development of the temple and that he ad(sic) present attitude only in the year 1947 be(sic) defendants 1 and 2 filed petitions for the re(sic) of his cottage industries.

Though he started filing petitions from to the authorities, he did not think fit to suit till 1950. The suit was filed eight after the shrine had come into existence.

When a party having a right stands (sic) sees another dealing with the property manner inconsistent with that right and no objection while the act is in progress, been held in Shand v. Henderson 1814 2 D(sic) 3 ER 952 (O) that he loses the remedy by (sic)tion which he would otherwise have. Co(sic) J. in Russel v. Watts, 1883 25. Ch D 5.(sic)states the doctrine of acquiescence thus:

The doctrine as to a person lying b(sic) to create an equity against him arises, (sic) he does something from which it can be ably inferred that he induced the other to think he would raise no objection (sic) they were doing or if he knows facts w(sic) unknown to the other persons acting in v(sic) of the right which those facts give and (sic) inform him about it, but lies by and lets (sic) into a trap.

In the present case, the shrine structures were the result of the common of the residents of the locality undertal(sic) mood of religious ferver. The plaintiff active participant in the joint endeavor consciously stood by for a period of a years during the gradual progress of (sic)stitution. The later improvements ar(sic) such a magnitude that it could be re(sic) held that what in the beginning was (sic) sible encroachment subsequently aff(sic) rights to force him to take a contrary.

The somersault in his attitude is prompted ore by his estranged feelings towards defendants 1 and 2 than by any attempt on his part redress an otherwise innocuous act suddenly (sic)eveloping into an act threatening damage to (sic)s person and property.

We are satisfied that the plaintiff who was (sic) active participant in the encroachment and (sic) stood by for a long period of time has so (sic)quiesced in the act and is so guilty of laches at he would not be entitled to any equitable lief.

We should not be understood to have proved of the act of defendants 3 and 4 in along encroachments to be made in public (sic)hways even in the name of religion. The en(sic)achment is certainly a public nuisance but (sic) plaintiff has no right or at any rate has distilled himself to get any relief.

The decree of the lower court is set de and both the appeals are allowed but, in (sic) circumstances, the parties will bear their (sic)ts throughout.