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Movva Butchamma Vs. Movva Venkateswararao and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberLetter Patent Appeal No. 76 of 1964
Judge
Reported inAIR1969AP136
ActsSpecific Relief Act, 1877 - Sections 55
AppellantMovva Butchamma
RespondentMovva Venkateswararao and ors.
Appellant AdvocateK. Suryanarayana and ;Y.B. Tata Rao, Advs.
Respondent AdvocateJ. Sitamahalaxmi, Adv. for ;J. Eswara Prasad, Adv.
Excerpt:
.....for removal of obstruction placed by defendant on plot belonging to plaintiff which were parts of public street - right of user relating to highway dependent upon terms of deed - public entitled to use highway without interference in absence of absolute right of user in deed - held, defendant not entitled to place any obstruction on plot which were part of public street. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action..........for reaching plot no. 1 belonging to her. the suit was based on the allegations that a b c d was a public street that the plots marked 2(a) and 3(a) were parts of the public street and that the defendants had encroached upon plots 2(a) and 3(a) and caused certain obstructions to be placed therein which interfered with the right of the plaintiff to the free use of the street for the passage of men, cattle and carts. both the lower courts found the facts substantially plaintiff, namely, that a b c d was a public street that plots 2(a) and 3(a) were parts of the public street and that the plaintiff had a right to use the street for the passage of her men, cattle and carts. on those finding both the lower courts as well as our learned brother kumarayya j. were clearly of the opinion that the.....
Judgment:

Chinnappa Reddy, J.

1. The Applicant in this appeal under C1. 15 of the Letters Patent filed the suit out of which the appeal arises for a mandatory injunction for removal of certain obstructions placed on plots marked 2 (a) and (3) (a) in the plan and for a permanent injunction restraining the defendants from interfering in any manner with the right of the plaintiff to use the street A B C D for the passage of men, cattle and carts for reaching plot No. 1 belonging to her. The suit was based on the allegations that A B C D was a public street that the plots marked 2(a) and 3(a) were parts of the public street and that the defendants had encroached upon plots 2(a) and 3(a) and caused certain obstructions to be placed therein which interfered with the right of the plaintiff to the free use of the street for the passage of men, cattle and carts. Both the lower Courts found the facts substantially plaintiff, namely, that A B C D was a public street that plots 2(a) and 3(a) were parts of the public street and that the plaintiff had a right to use the street for the passage of her men, cattle and carts. On those finding both the lower Courts as well as our learned brother Kumarayya J. were clearly of the opinion that the plaintiff was entitled to a permanent injunction restraining the defendant from interfering with her right to use the street for the passage of men, cattle and carts. The prayer of the plaintiff for a mandatory injunction for removal of the obstructions placed upon plots 2(a) and 3(a), though granted by the trial Court, was rejected by the lower appellate Court on the ground that notwithstanding the obstructions placed in plots 2 (a) and 3 (a), the street was wide enough to afford a passage to men, cattle and carts and the plaintiff had not established any special damage entitling her to relief by way of a mandatory injunction. Our learned brother Kumarayya J. agreed with the view of the lower appellate Court that the plaintiff was not entitled to the relief of mandatory injunction.

2. Mr. K. Suryanarayana the learned Counsel for the appellant contended that on the findings arrived at by the lower Courts a mandatory injunction directing the defendants to remove the obstructions should have been granted and the refusal to give this relief of mandatory injunction is inconsistent with the grant of the relief of permanent injunction granted by all the Courts. We find force in the contentions of Mr. Suryanarayana.

3. Before dealing with the contentions of Mr. Suryanarayana we may observe that our learned brother Kumarayya J. repelled a contention that the suit was not maintainable for non-compliance with provisions of Order 1 Rule 6 and Section 91, C. P. C. Kumarayya, J. observed;

'The English rule requiring such proof i.e., proof of special damage) is not applicable to India. Hence a person can maintain a suit for establishing a public right and for removal of an obstruction which constituted a public nuisance without the sanction of the Advocate General under Section 91, C. P. C. and without proof of special damage'.

Our learned brother further observed that proof of special damage was wholly unnecessary in the case of suits for removal of obstruction to village pathways, which he distinguished from public highways. Kumarayya J, held that village pathways being limited to a mere section of the public and not to the public at large, there was no public wrong was wholly inapplicable to such cases. The learned Counsel for the respondent did not contend before us that the suit was maintainable.

4. We have already stated earlier that the lower Courts have concurrently found that A B C D is a public street. Explaining the incidents of a public right of way Peacock in his 'Law relating to Easements in British India' states; 'As already explained, a public right of way, being unconnected with a dominant tenement, is a right in gross and clearly distinguishable from an easement. It is ... ... ... ... ...' The extent and mode of enjoyment of a highway must be measured by the user as proved, or by the terms of the deed when right is so granted, but in the absence of evidence to the contrary the public are entitled to the whole width of the way without any such restriction as may be imposed by the owner of the servient tenement in the case of a prescriptive private way. In Regina v. United Kingdom Electric Telegraph Cp., Martin B., laid down the proposition which was accepted by the Court on a motion for a new trial; 'In the case of an ordinary highway, although it may be of a varying and unequal width, running between fences one on each side, the right of passage or way, prima facie, and unless there be evidence to the contrary, extends to the whole space between the fences and that public are entitled to the use of the entire of it as the highway and are not confined to the part which may be metalled or kept in order for the more convenient use of carriages and foot passengers.'

5. It is therefore clear that once a highway, the whole and every part of it is a highway and public right of way extends over every inch of the highway. A B C D having been found to be public street the defendant was not entitled to place any obstructions in plots 2(a) and 3(a) which were part of the public street. The defendant cannot be heard to say that the obstructions placed by him cannot be removed so long as he has left a men, cattle and carts to go. As we have said, the right of the public to pass and repass extends over every inch of the manner restrict the right and compel the plaintiff to confine herself to a part of the street of the choice of the defendant. The plaintiff is clearly entitled to the mandatory injunction for removal of obstruction and as rightly pointed out by Mr. Suryanarayana the permanent injunction granted by the lower Courts cannot have its full effect unless the mandatory injunction is granted too.

6. Kumarayya J. was of the view that the plaintiff was not entitled to the mandatory injunction as she had not proved any substantial damage. According to our learned brother despite the obstructions placed upon the street by the defendant, the street was broad enough for convenient exercise of the right of the plaintiffs. In his view in the case of a village pathway which he distinguished from a highway proof of special damage was necessary before a mandatory injunction could be granted. Reliance was placed upon Bhagwan Singh v. S. Hari Singh, AIR 1929 Lah 73 and Krishnan Pillai v. Kilasathammal, AIR 1928 Mad 810.

7. We have earlier pointed out that while dealing with question of maintainability of the suit, Kumarayya J. had held that proof of special damage was unnecessary, whether the suit was for removal of an obstruction which constituted a public nuisance or for removal of obstruction to a village pathway. Having arrived at that conclusion we are unable to see why in the case of obstruction to a village pathway a mandatory injunction should be refused on the ground of absence of proof of substantial damage. In K. Subbamma v. L. Narayanamurthi, 1949-1 Mad LJ 56= (AIR 1949 Mad 634) Satyanarayana Rao J, held that a suit for removal of obstruction to a pathway was maintainable without proof of special damage whether the pathway was a highway `raised to a dignity of a public highway'. A decree for a mandatory injunction granted by the lower Court was confirmed by the High Court.

8. In Mandakinee Debi v. Basantakumari Debi, AIR 1933 Cal 884 a passage, which was a public way, leading to the plaintiffs' house was reduced from 3 feet 6 inches of 2 feet 8 inches in width by the reaction of a wall by the defendant. The trial Court had decreed a suit for removal of the encroachment but the lower appellate Court dismissed the suit on the ground that passage of sufficient width was left for the plaintiff. The High Court in second appeal restored the decree of the trial Court observing:

'The Court of first instance rightly found that the plaintiff's right had been affected by the encroachment, as a member of the public she is entitled to the use of the full width of the passage way and owing to the situation of her house she is peculiarly affected by the encroachment. Therefore though this is not a case in which Order 1, R. 8 is applicable, the plaintiff has every right to claim relief, even if it he held (and this had been strenuously urged for the respondent) that no action can be maintained by a member of the public for obstruction of a highway without proof a special damage. That no proof of special damage is necessary appears to be established on the authority of the case on Manzur Hasan v. Muhammad Zaman. Air 1925 PC 36 in which their Lordships of the Privy Council overruled the contrary view held in the case of Satku Kadir v. Ibrahim Aga, (1877) ILR 2 Bom 457.'

9. In Municipal Committee Delhi v. Mohammad Ibrahim. AIR 1935 Lah 196 the Municipal Committee had erected certain structures on a public street in front of the plaintiff's house. The plaintiff asked for demolition of the structures. The defence was that no special injury was caused to the plaintiff. The Lahore High Court confirmed the decree granting a mandatory injunction observing:

'The question of special damages in very simple. In such cases it is not necessary to prove that any special injury has taken place before a person wronged by the Committee can take action against it. In AIR 1931 Nag 189 it was held that where a plaintiff complains of an invasion of his rights as owner of property the beneficial enjoyment of which is adversely affected, he can sue for the removal of the obstruction of a public way without showing special injury to himself beyond that suffered by any member of the public'.

Reference was also made to AIR 1933 Cal 884 and Manzur Hasan v. Muhamad Zaman. ILR 47 All 151 = (AIR 1925 PC 36). In ILR 47 All 151 = (AIR 1925 PC 36), the Privy Council dealt with the case of a right to go in procession without interference but discussed generally the right to file a suit for declaration of such a right without proof of special damage. Their Lordships considered the case of Satku Kadir v. Ibrahim Aga, (1877) ILR 2 Bom 457 where the English rule, that the plaintiffs could not maintain a suit in respect of an obstruction to a highway unless they proved some damage to themselves personally in addition to the general inconvenience occasioned to the public has been adopted. Their Lordships pointed out that the judgment in the Bombay case proceeded entirely on English authorities which lay down the difference between proceedings by indictment and by civil action, that such a way of deciding the case was inadmissible and that the distinction between an indictment and action in regard to what is done on the highway is a distinction peculiar to English Law and ought not to be applied in India.

10. In Munusami Chetty v. P. Kuppusami Chetty, 1939-1 Mad LJ 392 = (AIR 1939 Mad 691) the plaintiff sued for a declaration that there was public path running between the house of the plaintiff and the house of the defendants and for an injunction requiring the defendant to remove the wall obstructing the alleged path. Wadsworth J, held that proof of special damage was unnecessary and decreed the suit. It was suggested before him that the rule laid down by the Judicial Committee in ILR 47 All 151 = (AIR 1925 PC 36) referred only to procession cases and not to other classes of cases. Wadsworth J, repelled the suggestion and observed:

'as I read the judgment of the Privy Council, however, no such distinction is contemplated by their Lordships. They deal generally with the whole class of cases governing the rights of the public to use a public way....................It seems to me that the decision of the Privy Council in ILR 47 All 151 = (AIR 1925 PC 36) must be taken to have established that the English Rule requiring proof of special damage in case in which a member of the public prays for removal of an obstruction to a public way does not apply to India'.

11. The two cases relied upon by the learned Counsel for the respondent are easily distinguishable. In AIR 1928 Mad 810 the defendant who owned properties on either side of a lane, a common property of both the plaintiff and the defendant, put up a sort of roof or covering for the lane. The passage itself was not obstructed and could be used to its fullest extent without any hindrance. Srinivasa Iyyengar J, held that balance of convenience did not require that a mandatory injunction should be granted as the plaintiff had not suffered any substantial damage. It will be observed that it was a case of a joint lane owned by both the plaintiff and the defendant and there no question of any obstruction to public pathway. The question really related to the mode of common enjoyment of joint private property and the fact that the defendant could continue to exercise his right of passage over such property without hindrance was taken into consideration in refusing the relief of mandatory injunction. This case has no application to cases like the present where obstructions are caused to public highways. AIR 1929 Lah 73 was also a case where the constructions were on joint shamilat land and no question of obstruction to a public pathway arose.

12. As a result of the above discussion we hold that the plaintiff was entitled to a mandatory injunction for removal of the obstructions placed on plots 2 (a) and 3(a). We accordingly allow the appeal and restore the decree of the learned District Munsif of Muzvid in O. S. No. 96/1955. The appellant is entitled to be costs of this appeal.

13. Appeal allowed.


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