Zahara Bi and Others vs Sheik Dawood and Another

Natesan, J.—This case raises an interesting question whether the Plaintiffs who have encroached and built upon a public street could get an injunction against their neighbour who seeks right of access to the street. While the trial Court accepted the Plaintiffs claim in the circumstances pleaded, the Appellate Court has refused the injunction.

The facts giving rise to this action may be briefly stated. The Plaintiffs and Defendants are owners of adjoining houses abutting a public lane, the Plaintiffs being the owners of T.S. No. 1669 and the Defendants, the owners of T.S. No. 1679 to the immediate west. South of these T.S. Nos. is the blind lane, T.S. No. 1663, leading to Varaganeri Muslim street towards northeast. The first Plaintiff--the other Plaintiffs are his legal representatives--became entitled to T.S. No. 1669 in 1924; and the Defendants became owners of their property by a purchase under exhibit B-14 on 23rd January 1959. The disputed site which is an encroachment is marked ABCD in the plan annexed to the plaint. CD is a wall in the Defendants property, and, inserting some hooks into the wall, the Plaintiffs have put up a kitchen on ABCD with zinc sheets roofing. The Plaintiffs, contention that the wall in question was a party wall was negatived, the trial Court holding that the was belonged to the Defendants but that the Plaintiffs had acquired right of easement in the wall, while the appellate Court negatived the easement right also upholding the exclusive right of the Defendants to the wall. There is no dispute now that the disputed site ABCD, forms part of the public street. Even in the year 1942, proceedings were initiated for ascertaining encroachment and the site in question was found to be an encroachment on T.S. No. 1663, the public street. Exhibit A-5 is an order of the Collector with reference to the encroachment on the lands belonging to the Tiruchinopoly Municipality., and the disputed site is shown as an encroachment on T.S. No. 1663. The Collector, by his order, dated 18th September 1943, had directed the Commissioner of the Tiruchinopoly Municipality to lease out the site, subject to such conditions as may be imposed. No lease as such was, however, granted, and the records show only payment of licence fee to the municipality for the encroachment. After the Defendants become purchasers of the property, T.S. No. 1670, they sought to put up a latrine j adjoining the wall CD which abutted T.S. No. 1663 and also open a doorway into the lane. The doorway, when opened, will open straight into the kitchen which the Plaintiffs have constructed on the disputed area. It is this that led to the Plaintiffs filing the suit claiming permanent injunction restraining the Defendants from interfering with the Plaintiffs'' enjoyment of the site ABCD, constructing the latrine and other incidental reliefs requiring the Defendants particularly to close up the opening in the wall. Prior to the suit, the first Plaintiff applied to the Collector, Tiruchinopoly, seeking assignment of the disputed portion and pointing out the continuous enjoyment of the site from 1942 putting up constructions. During the pendency of the suit, it may be stated that the municipality issued an order exhibit B-4, dated 1st April 1960, informing the first Plaintiff that the licence would not be renewed thereafter as the Defendants were prevented from having access to the street, that the encroachment was objectionable, and that it must be removed within seven days of the receipt of the order. A revision to the municipality was rejected. It is stated that the first Plaintiff has taken up the matter with the Collector of Tiruchinopoly, and that there was some enquiry held and report called for. It is contended on behalf of the Plaintiffs that they have hopes of securing an order in their favour.

Before going into the principal question for consideration, the claim of the Plaintiffs that they have acquired right of support over the Defendants'' wall CD, may be disposed of. The evidence does not warrant an inference of twenty years user, even assuming that the Plaintiffs had some recognized right over the disputed site on the strength of which they could claim a right of easement. Though the encroachment appears to have started much earlier than 1943, the evidence does not show that the Plaintiffs were having any support from the Defendants'' wall or any structure of theirs for the requisite period. The user earlier appears to be only for tying cattle and, in the absence of substantial evidence of user for over twenty years, it cannot be said that the finding of the learned District Judge on this aspect of the matter is erroneous. The finding that the required period of 20 years had not elapsed before the institution of the suit, is one based on evidence, and is not open to challenge in the second appeal.

Learned Counsel, Mr. S.K. Ahmed Meeran, appearing for the Plaintiffs contends that the Plaintiffs being in possession are entitled to have their possession protected from any trespass by the Defendants, and that in effect, the Defendants are seeking trespass on the site, ABCD, admittedly in the occupation of the Plaintiffs. It is stated that the property has been established beyond doubt to have been in their occupation from about 1943. This peaceful user and enjoyment--it is contended--must be protected from any invasion from the Defendants. Learned Counsel for the Plaintiffs also contends that the Government and the municipality have recognized the possession of the Plaintiffs and permitted them to put up structures and that it is not open to the Defendants to question their occupation. It is further contended that the so called street, is after all a blind lane, and that the predecessor of the Defendants had stood by all these years without seeking any access to the lane.

It is no doubt true that even a trespasser is entitled to have his possession maintained and protected against all but the true owner or persons claiming under him. But, in the very proposition is involved two elements--the Plaintiffs must be in possession and secondly they must be entitled to be maintained in that possession against the person who seeks to enter upon the property. The claim for perpetual injunction is governed by the provisions of the Specific Relief Act (I of 1877). Section 53 of the Act defines the scope of injunction as enjoining the Defendant from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the Plaintiff. Section 54 provides for the granting of injunction to prevent the breach of an obligation existing in favour of the Applicant, whether expressly or by implication. The questions that arise for consideration, therefore, in this case are whether the opening of the doorway by the Defendants is contrary to the right of the Plaintiffs and whether there was any breach of an obligation existing in favour of the Plaintiffs. If the Defendants have right of entry on the disputed site and have not lost it, it goes without saying that the Plaintiffs cannot have perpetual injunction against them.

It is contended on behalf of the Defendants that they are entitled to seek access to the street when they choose, and that they have not lost it by not having provided any opening in the wall for years. It is contended that the Plaintiffs have acquired no right as against the Defendants to maintain the encroachment, and that even the municipality or the Government could not by their acquiescence in the encroachment levying only a fee validly authorize an interference with the Defendants'' right of access to the public street.

For examining these contentions and questions that incidentally arise, it is necessary to set out in some detail the relevant provisions of the Madras District Municipalities Act (V of 1920). The fact that there is only a blind lane, in my opinion, is neither here nor there. Section 3(21) of the Act defines a public street as meaning:

any street, road, square, court, alley, passage or riding path over which the public have a right of way whether a thoroughfare or not, and includes:

(a) the roadway over any public bridge or causeway ;

(b) the footway attached to any such street, public bridge or causeway ; and

(c) the drains attached to any such street, public bridge or cause way and the land, whether covered or not by any pavement, verandah, or other structure, which lies on either aide of the roadway up to the boundaries of the adjacent property whether that property is private property or property belonging to the Government.

From the definition, it is clear that a blind lane would also be a public street. Section 61 of the Act vests all public streets, in any municipality in the municipal council. Section 162 of the Act casts the duty on the municipal council, of maintaining and repairing public streets. Section 163 Clause 1(c) empowers the municipal council to turn, divert or with the special sanction of the State Government permanently close any public street or part thereof. Section 164(1) provides that. when a public street is permanently closed u/s 163, the Municipal Council may, with the sanction of the State Government, dispose of the site or of so much thereof as is no longer required, in such manner as may be approved by the State Government, provided that due compensation is made to any person injured by such closing.

Section 180 prohibits any person from building any wall or erecting any fence or other obstruction or projection, or making any encroachment in or over any street except as provided in the Act. Section 180-A, gives an absolute right over public street to all persons. It runs thus:

All streets vested in or to be vested in or maintained by a Municipal Council shall be open to persons of whatever caste or creed.

Section 182(1) empowers the executive authority to require by notice the removal of encroachment or obstruction in or over any street. Section 182 (2) runs thus:

If the owner or occupier of the premises proves that any such projection, encroachment or obstruction has existed for a period sufficient under the law of limitation to give any person ft prescriptive title thereto or that it was erected or made with the permission or licence of any municipal authority duly empowered in that behalf, and that the period, if any, for which She permission or licence is valid has not expired, the municipal council shall make reasonable compensation to every person who suffers damage by the removal or alteration of the same.

This shows that, even if a person has acquired prescriptive title to an encroachment, the municipality can direct its removal, though it may be bound to pay reasonable compensation. In P.N.V. Ratnaswami Nadar Vs. Virudhunagar Municipal Council, , it its held that the fact that the municipal council was bound to pay compensation, would not entitle the owner to obtain a declaration or injunction that the municipality was not entitled to have the projection removed.

Section 183 empowers the council to grant a licence, subject to such conditions and restrictions as it may think fit, to the owner or occupier of any premises to put up verandahs, balconies, sunshades, etc., to project over a street. Clause 2 of the section empowers the executive authority to grant licence, subject to such conditions and restrictions as it may think tit, for the temporary erection of pandals and other structures in a public street. Clause 3 of Section 183, on which reliance has been placed by learned Counsel for the Plaintiffs, enables the council to lease road-sides and street margins vested in it for occupation on such terms and conditions and for such period as the council may fix. It may be pointed out here that the encroachment in question in the present case is not over the road-side or street margin. The street is a narrow one, a blind lane, and the report at the time of the enquiry into the encroachment was that the street was awfully contracted by the encroachment. Clause 4 of Section 183 is an important proviso. It restricts the scope of licence under clauses 1 and 3 and provides that no licence or lease shall be granted if the projection, construction or occupation is likely to be injurious to health or cause public inconvenience or otherwise materially interfere with the use of the road as such. Now, assuming that the municipality has granted or permitted or acquiesced in the encroachment, it would have no power to do so in this case, as the encroachment affects the use of the road as such. The result of the encroachment, as will be seen by a look at the plan is to shut out the Defendants from having any access whatsoever to the lane. They cannot step down on the lane, the Plaintiffs'' encroachment abutting the wall CD and taking up a good portion of the lane. Clause 5 of Section 183 further provides that the State Government may, by notification, restrict and place under such control as they may think fit, the exercise by municipal council in general or by any municipal council in particular, of the powers under Sub-sections 1 and 3. Learned Counsel for the Plaintiffs referred also to Section 6 of the Act. That section, in my opinion cannot help the Plaintiffs in the least. It makes the municipality a body corporate with the capacity to acquire, hold and transfer property, movable or immovable, to enter into contracts and to do all things necessary for the purpose of its constitution. That section cannot validate an ultra vires act of the council or confer power on it to do act which is not provided under the Act. As made clear in the Municipal Manual under the heading Transfer of Immovable Property, immovable property vesting in but not belonging to a municipal council shall not be transferred or charged in contravention of the conditions subject to which such property became vested in the council. Leases of roadsides and street margins which are vested in municipal council are subject to the restrictions imposed by the government u/s 183(5) of the Act. It is not the Plaintiff�s case at any rate it has not been established that the street in question has been permanently closed u/s 163(1)(c) of the Act. At least it is not established that part of the street which is an encroachment has been, under the provisions of the act, closed. In. a case of this kind, it is the duty of the municipality to remove the encroachment u/s 182. Reference was made by learned Counsel for the Plaintiffs to Board Standing Order 26. That does not carry the matter anywhere. Under the Madras Land Encroachment Act (Madras Act III of 1905), the government cannot ignore the rights of the public so long as the street continues to be a public street. u/s 2 of the said Act, all public roads and streets are declared to be the property of the government, except as may be otherwise provided by any law for the time being in force, subject always to all rights of way and other public rights. The proprietary right of the government itself is, therefore, subject to the right of way and other public rights. Also the government has not intervened in the matter so far and the municipality has not been divested of its control over the street. The property is vested in the municipality only as a street and it has no powers to use it for any other purpose.

In S. Sundaram Ayyar v. The Municipal Council of Madura and the Seen of State for India in Council ILR (1901) mad. 635, 646 the position is stated thus:

The conclusion to be drawn from the English ease-law is that what is vested in authorities under statutes similar to the District Municipalities Act, is not the land over the street is formed, bur, the street qua street and that the property in the street thus vested in a Municipal Council is not general property or a species of property known to the Common but a special property created by statute and vested in a corporate body for public purposes.

In Emperor v. Viswanatha Nana ILR (1926) 50 Bom. 674 a case under the Bombay Municipal Act, it was held that, u/s 90 of the Act, the municipality had authority to allow any portion of a public street to be used as a mark It was observed that, although u/s 90 of the Act the municipal] had authority to discontinue or to stop up any public street, it was important to remember that public streets were vested in the municipality u/s for the purpose of being maintained as such, subject to the provisions as for the purposes of the Act. It was further observed that there were clear provisions in the Act which showed that ordinarily a municipality should be allow a permanent obstruction on any such street. In that case the accuse was charged u/s 61 of the District Municipal Act, for keeping logs c timber on a public street at Poona. The accused pleaded that the municipality, by its resolution reserved five feet on each side of the street as a timber market. But the defence that the municipality authorized the user was not available to the accused, in view of the legal position. It, therefore follows that the mere fact that in the encroachment proceeding in 1943 the Collector directed that there may be a lease of the site or the fact that the municipality subsequently had been taking licence fee and acquiescing in the encroachment, will not be sufficient to sustain the legality of the encroachment. It still continues to be an encroachment and the municipality is entitled to direct its removal as it has done.

Now, I shall consider what the rights of the Defendants are in the matter. The law is well settled that the owner of a land abutting a public street has right of access to the street from his land and vice versa at any point along the line of contact. The fact that he might have built a wall and has retained it for a number of years, will not preclude him in my view, at any time from opening a way out from his land through the wall into the public street. Any obstruction to his stepping down to the public street from his property by any person would be an actionable wrong. In Salmon d on the Law of Torts, twentieth edition, at page 238, the matter is dealt with thus:

Every person who occupies land immediately adjoining a highway has a private right of access to the highway from his land and vice versa ; and any act done without lawful justifies. Hon whereby the exercise of this private right is obstructed is an actionable wrong.

Proceeding further, the learned author observes:

The right of access to a highway by the occupier of land abutting upon it must be distinguished from the right of passing along the highway. The former is a private and the latter a public right, and for any infringement of the former an action will lie ; whereas, as we shall see in the next section, no action will lie for an infringement of the public right of passing except on proof of some special or particular consequential damage suffered by the Plaintiff.

In the Law relating to Easements by Peacock third edition, at page 243, it is stated:

An owner of land which is contiguous to a public highway has the right of access to toe highway from his land and vine versa at any point along the line of contact, whether the soil of the highway is vested in him or not.

In W.H. Chaplin and Co. Limited v. Westminster Corporation (1901) 2 Ch. 329, 334 Buckley- J., enunciates the rule thus:

A person who owns premises abutting on a highway enjoys as private right the right of stepping from his own promises on to the highway, and if any obstruction be placed in his doorway or gateway, or if it be a river, at the edge of his wharf, so as to prevent him obtaining access from his own premises to the highway, that obstruction would be an interference with a private right.

By the present action, the Plaintiffs, in effect seek to obstruct the Defendants from their obtaining access from their premises to the highway. The closure of the Defendants'' wall they seek is to prevent such access. The injunction which they claim, if granted, will deprive the Defendants of their lawful right of access to the public street.

The fact that the main house of the Defendants may have access somewhere in the north to another public street will be no defence to a claim by them of access to the public street in question immediately south of their property. In Cobb v. Saxby (1914) 3 K.B. 822 the Plaintiff and Defendant were owners of adjoining houses which abutted a public street. The side wall of the Defendant�s house projected into the street a short distance beyond the front of the Plaintiff�s house. There was no door or other opening in this side wall. The Plaintiff started affixing boards close to the Defendant�s wall, the effect of which would be to prevent access to the wall from the street, though they did not obstruct entry into the street. When the Defendant wanted to place his advertisements on the boards, the Plaintiff came forward with an injunction against the Defendant. The Defendant admitted himself in wrong but counter claimed that the Plaintiff�s placing the boards and obstructing the Defendant�s access from the street to the wall was wrongful. He claimed injunction and damages. The Plaintiff in that action conceded that, if at any time the Defendant made a doorway in the projecting part of his wall, the Plaintiff would not maintain the boards in such a position that would interfere with the Defendant�s right of egress from his premises. Despite this concession, the Defendant�s counter claim was held well founded, Rowlatt J., observing at page 826:

Although no authority precisely in point has been cited, I am of opinion that the owner of a house adjoining a public highway has precisely the same rights, as regards the highway, with respect to the wall of his house as he has in the case of a door or other entrance leading from his house on to the highway.

In Dwarka Prasad Singh and Others Vs. Patna City Municipality and Another, the Defendant municipality had given a lease of a strip of land for the erection of a petrol pump, underground tank and petrol kiosk. The Plaintiffs inter alia claiming passage and road frontage, sought removal of the structure. After holding that the municipality exceeded its authority in settling the disputed strip of road-side land for the erection of a petrol pump etc., dealing with the argument on behalf of the municipality that the compound wall of the Plaintiff was so old that the Plaintiffs must be taken to have restricted their right of access to the gate (which stood not behind the strip in dispute but a little north), Dhavle J., observed at page 426:

But in the first place the compound wall cannot restrict the Plaintiffs'' right of access. The books quote a dictum of Chambre J., during the arguments in Woodyer v. Hadden 128 E.R. 634:

A public road differs from a private road in this : you may make an opening in your fences and go into it at any part of the public road or at the end, but in a private road you must go into it at the usual and accustomed part.

The decision was confirmed in Letters Patent Appeal in Patna City Municipality v. Dwarka Prasad Sinha ILR (1939) Pat. 735. In District Board of Manbhum v. B.N.By. Co. (1944) ILR Pat. 931, 939 the action was brought by the railway company for demolition and removal of a building erected on the land by the second Defendant, a licensee of the District Board the first Defendant, which had been allowed to occupy the land with other road-side lands for the purpose of maintenance of the road. Dealing with the contention that a wall had been erected adjoining the site in question and further south there was a gate available, it is observed at page 204:

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 ft gateway towards the south.

There is a full discussion of the matter, if I may say so with respect, in the decision of Subba Rao C.J., (as he then was) sitting with Jaganmohan Reddi J., in Neti Gopalakrishna Gokhale v. Brahmandam Narasimham (1957) 2 And. W.R. 564.

It is clear from the above discussion that the Defendants could have, even as against the municipality, claimed the removal of the encroachment, even if the municipality had authorized the same. When such is the position and when in the present case the municipality has refused to renew the licence, the Plaintiffs can have absolutely no case for any relief against the Defendants. The Defendants cannot be restrained by a permanent injunction from exercising their lawful right. The Plaintiffs have no right in themselves to be maintained in that encroachment. In a treatise on the Law of Injunctions by High, volume I, fourth edition, at page 574, it is stated:

Thus, where the Defendant, acting under a legislative and municipal grant, is erecting stone approach to a toll bridge which is of such a character as to leave a space in front of Plaintiff�s premises so narrow as to render the street totally unfit for its legitimate use, an injunction will be granted until the Plaintiff�s easement is condemned and proper compensation made. And the relief is granted in such case regardless of the ownership of the fee to the highway.

The Defendants themselves being thus entitled to an injunction against the Plaintiffs, the Plaintiffs cannot be granted any injunction, even on the plea S that they may be able to secure from the Government or other appropriate authority a right to continue in possession and enjoyment of the encroachment. They have no present right to be continued in such possession as against the Defendants who have a right of stepping over the encroached portion into the street.

Mr. S.K. Ahmed Meeran, learned Counsel for the Plaintiffs, referred to a decision of this Court in Be Dharmalinga Mudaly ILR (1914) Mad. 57 where at page 59 it is observed:

If, of course, peaceable and effective possession had been acquired by the wrongful act and has been in a manner acquiesced in for a reasonable period private persons cannot afterwards be allowed to assemble in force and cannot trespass upon the site so effectively and peaceably taken possession of by the person, without their being guilty of the offence of being members of unlawful assembly though the person who had obstructed the road might be liable to punishment on criminal indictment and may be dispossessed by the public authorities u/s 133 of the Code Criminal Procedure and u/s 6 of the Madras Land Encroachment Act III of 1905.

Learned Counsel contends on the basis of this observation that the Defendants can have no claim on the property which admittedly has been in their possession for over several years. But, it is overlooked that what the Plaintiffs are now seeking is a permanent injunction against the Defendants to consolidate their wrongful possession and aggrandisement. The Defendants in this case are seeking to assert not right just as members of public as in the case above referred to which was a case of public nuisance but are seeking to assert their private right. True, it may be that the Defendants should not dispossess the Plaintiffs by force and for forcible dispossession they may be made liable under the criminal law. But that does not entitle the Plaintiffs to interdict the Defendants from asserting their rights in any manner open to them under the law and certainly the Plaintiffs cannot compel the Defendants to maintain their wall intact without openings or doorways, if the Plaintiffs have not acquired any such right against them in the wall. In fact in Re Dharmalinga Mudaly ILR (1914) Mad. 57 the complainant built a wall obstructing a public way. Immediately after this, the accused who were members of the public, in the bona fide exercise of their right of way, pulled down the wall. The accused were charged under Sections 147, 426 and 447, Indian Penal Code. But they were discharged. This Court observed that the accused had been exercising their right of way through the site in question till the complainant began to build upon it and that before he could acquire effective, peaceable and juridical possession and without acquiescing in his possession, they dispossessed him and removed the obstruction caused by him. During the course of judgment, this Court further observed that the site being a public path, if the complainant obstructed it wrongfully by a wall, the loss caused to him by the members of the public who pulled it down cannot be considered as wrongful loss. Such being the ease, when the Plaintiffs here have no right whatsoever and the Defendants have not lost their rights to step on the property in question as part of the street, the Plaintiffs cannot claim any injunction interdicting the Defendants from exercising their rights. Perpetual injunction can be granted only on the merits of the case on final determination of the rights of the parties and here the Plaintiffs have no title or right in the property in question to be maintained in their possession even as against the Defendants.

No doubt, even though the Plaintiffs may not be able, in view of the law on the matter, to maintain possession of the encroachment against the municipality or State, they can as against the Defendants, if circumstances warrant and a case has been made out, plead estoppels. If the Defendants stand by and actively encourage the Plaintiffs in erecting the structures after the encroachment, there may be personal estoppel against them. But, there is no such plea of any personal estoppel in this case by reason of the predecessor-in-title of the Defendants having stood by and encouraged the Plaintiffs to proceed with their construction on the encroached site. If an issue had been raised, the Defendants might have their own answer. It may be that the structures were not intended to be permanent and whenever access was sought it was to be given or it may be that the Defendants'' predecessor-in-title was not aware of what was going on south of the compound wall. In the absence of plea and evidence one cannot speculate as to what the defence would have been.

In the result the decision of the lower appellate Court has to be confirmed. The second appeal fails and is dismissed, but in the circumstances without costs. No leave.