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Judgment
R.S. Ramanathan, J.—The above second appeal arises against the judgment and Decree of the Learned First Additional District Judge,
Coimbatore dated 30.12.1997 in A.S. No. 59 of 1997 confirming the judgment and Decree of the Learned First Additional Munsiff, Coimbatore,
dated 06.01.1997 in O.S. No. 1166 of 1994.
The un-successful Plaintiff is the Appellant. The suit is filed for mandatory injunction directing the Respondents to remove the temple constructed
in front of the Appellant''s house thereby preventing access to the Appellant to reach the highway.
The case of the Appellant/Plaintiff was that he purchased the vacant land of an extent of 19 cents and sold Northern 6 cents to the third party
and constructed a house in the remaining extent. The Southern boundary of his house is the Chettipalayam road and in between his house and
Chettipalayam road, there is a strip of land belongs to the 2nd Respondent and the 1st Respondent encroached upon the piece of land in front of
the Plaintiff''s house and has established a temple there and thereby preventing free access to the Appellant/Plaintiff to reach the highway from his
house and therefore filed a suit for mandatory injunction.
The 1st Respondent contested the suit stating that the temple is in existence for more than 60 years and it is not a hindrance to the
Appellant/Plaintiff to enjoy his property and the tmple is in Government poromboke and B-memos were issued in favour of the 1st Respondent
and as free access to the Plaintiff''s house is not prevented, the Plaintiff is not entitled to the relief prayed for. The 2nd Respondent remained
exparte.
Both the courts held that the property in which the temple is constructed is a Government poromboke and is not a property belonging to the 2nd
Respondent and the Appellant/Plaintiff has got access to the road from the remaining portion from his house to the highway and the existence of the
temple will not prevent the Appellant/Plaintiff from having access to the highway and therefore, the temple is not a nuisance to the Plaintiff and
therefore, the Appellant/Plaintiff is not entitled to the relief prayed for. Aggrieved by the same, the Second Appeal is filed by the Appellant.
The following substantial question of law was framed at the time of admission.
Whether the conclusion of the court below that the Plaintiff was not entitled to ask for a mandatory injunction for the removal of the temple built by
the 1st Defendant in front of the Plaintiff site which abuts National Highway since a road poromboke intervenes between the Plaintiff''s site and the
National Highways the temple is constructed on the said Poromboke is correct in law?
Mr. N. Varadarajan, learned Counsel for the Appellant submitted that both the courts without properly appreciating the law laid down by this
Court in the matter of access to highway by persons owning property adjacent to the highway, erred in dismissing the suit filed by the Appellant.
The learned Counsel contended that when a person owns property abutting the highway, he is entitled to have free access to the highway from his
house from all the points and that cannot be prevented by any person and it is not an answer to say that the Plaintiff has got access from other
points and the encroachment will not cause any obstruction to the Plaintiff. He relied upon the judgment of this Court reported in in the case of K.
Mani v. L. Indumathi 1998 1 MLJ 62 in support of his contention.
On the other hand, the learned Counsel for the 1st Respondent submitted that the suit itself is not maintainable as proper parties were not made
parties to the suit and as admittedly the property in which the temple was constructed belongs to the Government and it does not belong to the 2nd
Respondent and without impleading the Government the suit is not maintainable. The learned Counsel for the 1st Respondent further submitted that
the temple is in existence for the past 60 years and the panchayat has also passed resolution to have a bus-stand in that Government poromboke
and therefore, the Plaintiff cannot claim any right over the property that is situated in front of his house and as per the Commissioner''s report also
the temple will not cause any nuisance and the Plaintiff is having access to the highway from the other points from his house and therefore, the
courts below rightly dismissed the suit.
The learned Additional Government Pleader appearing for the 2nd Respondent submitted that as per the order passed in W.P. No. 9432 of
2005 filed by one Mrs.K. Lalitha against The District Collector and two others, this Court has directed the 2nd Respondent herein by its order
dated 21.03.2005 to remove the encroachment namely, the suit temple and while they contemplated action to remove the temple, the 1st
Respondent obtained an order of status-quo from this Court dated 01.07.2005 passed in CMP No. 9985 of 2005 in S.A. No. 996 of 1998 and
due to the interim order, they are not in a position to carry out the order passed in W.P. No. 9432 of 2005.
It is admitted that the Appellant/Plaintiff is having a house on the Northern side of the Chettipalayam road and in between the house of the
Appellant and the road, there is a land and in that land a temple was constructed in a portion, by the 1st Respondent. Both the courts dismissed the
suit on the basis of the report of the Commissioner and on the basis that the Plaintiff is having access to the highway from his house and the
construction of the temple will not in any way prevent the access and therefore, the Plaintiff is not entitled to the relief prayed for.
It is made clear in the judgment of the First Appellate Court that the First Appellate Court held that unless the Appellant''s house is abutting the
highway, he is not entitled to the relief as prayed for and in between the Appellant''s house and highway there is a land which belongs to the
Government and a temple is constructed in the said land and as per the report of the Commissioner, the access to the Appellant''s house to reach
the highway is not prevented and hence, the Appellant is not entitled to the relief prayed for.
The law on this point has been declared by this Court in the judgment reported in the case of K.V.K. Janarthanam v. State of Tamil Nadu
(1995) 1 L.W. 451 and after following the judgment reported in the case of Damodara Naidu and Others Vs. Thirupurasundari Ammal and
Another, and in the case of Bharathamatha Desiya Sangam v. Raja Sundaram AIR 1987 Mad 183 this Court held that a person has got right of
access from any portion to his house to reach the highway and if any construction is put up which prevents free access to his property, he is entitled
to the relief of injunction. In the case of Damodara Naidu and Others Vs. Thirupurasundari Ammal and Another, , it was held as follows:
The right of the owners of land adjoining the highway to go upon the highway from any point on their land is a private right distinct from his right to
use the highway as a member of public; if the right to access is obstructed by any one, the owners of the land abutting the highway are entitled to
maintain action for the injury, whether the obstruction does or does not constitute a public nuisance. Hence, where the Plaintiff''s right to such
access is completely obstructed by the Defendants by putting up a wall, they are entitled for a mandatory injunction directing the Defendants to
remove the wall when there is no proof that they had abandoned their right of access to ublic highway on the side of the wall.
In AIR 1987 Mad 183 in the case of Bharathamatha Desiya Sangam v. Raja Sundaram cited supra, it was held as follows:
The only question, is, whether the first Respondent has a right of access to the street on the north from every point along A, D line free from the
obstructions caused by the Appellants and Respondents 2 and 3. There is no dispute that Sundara Vinayakar Koil Street is a public street.
Owners of houses of premises abutting a roadway are entitled to have access to that roadway from all points on the boundary of their land and if
any obstruction is caused over the road margin securing such access, the person entitled to have such access can certainly enforce that right.
Therefore, from the above judgments, it is made clear that a person owning property adjoining the highway, is entitled to have access from all
points to reach the highway and his access cannot be prevented by putting up any construction in any portion and it is not an answer that the
Plaintiff has got access from other points to reach the highway. Admittedly, the temple is in the Government poromboke and as submitted by the
learned Counsel for the 2nd Respondent, steps were taken to remove the temple in pursuance of the order passed in W.P. No. 9432 of 2005 filed
by the Appellant''s daughter and due to the Status-quo order passed by this Court, the 2nd Respondent has not taken further steps. Further, this
Court has held that all the encroachments in the public property are to be removed and hence the 1st Respondent cannot have any right to have the
temple constructed in the public property without proper sanction. Admittedly the temple was not constructed after getting permission from the
Government and it is an encroachment on the public property and on that ground also it is liable to be demolished.
Hence, the Substantial Question of Law is answered in favour of the Appellant that the Appellant is entitled to ask for a mandatory injunction
for the removal of the temple built by the 1st Respondent, as the temple is constructed on the Government poromboke. Hence, the judgment and
decree of the court below are set aside and the suit filed by the Appellant is decreed as prayed for and the Second Appeal is allowed. No costs.