A. Misra, J.
1. Defendant No. 1 is the appellant against a reversing judgment. Plot No. 3460 measuring 13' x 20' recorded as Nainjori situate between the plaintiff's building on plot No. 3439 and the Bhadrak station feeder road constitutes the subject-matter of dispute. According to the plaintiff, he has some windows and a door opening on the southern side of his building which is bounded by a compound wall. There is a gate in the compound wall opening to the suit land through which he was having access to the Bhadrak station feeder road from his house. Previously, the suit land had vested in the District Board, but at present, it is under the administrative control of State Government in the Revenue Department. On prior occasions, plaintiff had prevented defendant No. 1 from making any construction on the disputed land, but on 13-3-1963, finding that defendant No. 1 had collected some building materials and started constructions, he filed the suit for a permanent injunction restraining defendant No. 1 from making any construction or raising other obstructions on the suit land and for a mandatory injunction to remove such constructions, if any, made during the pendency of the suit alleging that his right to light and air and his right to access to the Bhadrak station feeder road will thereby be interfered with.
2. Defendant No. 1 resisted the suit alleging that plaintiff is estopped from claiming any such right as his predecessor-in-interest had taken lease of a portion of the land from the District Board; that by the proposed constructions, the right of plaintiff to light and air will not be interfered with as there is open space 7 feet in width between his building and compound wall and that he has no right of passage over the disputed land to the feeder road. According to him, plaintiff and his family members have access to the road through a door in their building facing to the east and there is also a common passage in between plaintiff's building and the compound wall to the south which leads to the road through a big gate 12 feet in width on the eastern side. He claims to have taken lease of the vacant site measuring 33' x 22' including the disputed land from the District Board for the last twentyfive years or so and the temporary structures which existed there having fallen down in 1962, he made preparations to reconstruct the same. The present suit has been filed by the plaintiff as he failed in his attempt to take lease of a portion of the suit land. Defendant No. 2, the Collector, besides supporting the case of defendant No. 1, in general, has further pleaded that the service of notice under Section 80 C.P.C. is not legal.
3. The trial court dismissed the suit on the following findings: (1) Plaintiff has not acquired any easementary right to light and air, and constructions, if any, on the suit land will not interfere with the enjoyment of light and air by him and (2) he has not acquired any right of passage over the disputed land, and as such, is not entitled to the reliefs claimed. The lower appellate court, while concurring in the findings of the trial court that plaintiff has not acquired any easementary right to light and air or easementary right of passage over the disputed land and the gate in the southern compound wall of his building giving access over the disputed land was opened only sometime after 1955, held that plaintiff as an abutting owner has right of access to the road from his building over the roadside land, and as such, is entitled to maintain an action when this right of access has been substantially interfered with. Accordingly, it reversed the judgment of the trial court and decreed the suit in part entitling the plaintiff to a decree restraining defendant No. 1 from interfering with his right of access over the disputed land over an extent of 2 feet to the east of the old ridge shown in the sketch map (Ex. 3/a) to the feeder road and directed that construction, if any, made thereon by defendant No. 1 during the pendency of the suit is to be removed.
4. The findings of the courts below that plaintiff has not acquired anyeasementary right to light and air; thatthe road is accessible to the plaintiffthrough the front gate by using the common passage betweenthe compound wall and hisbuilding and that his gate in the compound wall on the southern side of the building was opened only after 1955 are not challenged. Therefore, the only point for consideration is whether plaintiff as an abutting owner can claim a right of access to the station feeder road over the disputed land, and if so, whether there has been substantial interference with this right as a result of the proposed construction by defendant No. 1.
5. Learned Counsel for appellant assails the judgment of the lower appellate court mainly on the ground that once there is a Nainjori intervening between the road and the house of an abutting owner, the latter in his capacity as an abutting owner cannot claim right of access to the road from every point of his premises. In support of this argument, it is contended that Nainjori cannot be treated to be a part of the road, such land being only a piece of waste land the title to it vests in the State Govt., and when the same has been leased out to defendant No. 1, plaintiff cannot claim any right of access over it.
6. The first aspect for consideration is whether lands recorded as Nainjori constitute road side lands subject to the same rights and incidents. In Dalzel's Settlement Report, 1922-23 the expression 'Nainjori' has been explained to mean road side lands. Therefore, there cannot be any controversy that the disputed land which is admittedly recorded as Nainjori constitutes roadside land. Once it is found that the disputed land constitutes roadside land, the next point for consideration is the nature of rights and incidents to which it is subject to. In a Division Bench decision of this Court reported in ILR (1950) Cut 595 = (AIR 1951 Orissa 124), Chairman District Board Puri v. C.H. Achaya, two questions that arose for consideration are; (1) whether roadside lands form part of the road and subject to the same rights and incidents as regards members of the public and abutting private owners and(2) whether the roadside lands can be put to any use in derogation of such rights. After noticing various decisions of English Courts as well as Indian High Courts, it was held.
'Roadside lands are prima facie part of the road and are vested in the local authority in the same way as the roads, subject to the same kind of use thereof and subject to the same rights and incidents as the road except in so far as any specific statutory provision provides to the contrary expressly or by necessary implication.'
Secondly, it was held:
'An abutting owner of a road, including therein the roadside lands which form part of the road, has the undoubted right of access to the road from all pointsof his property but the right cannot be construed as entitling him to insist upon leaving the road absolutely free from any other kind of use than for mere passing and repassing of the members of the public if such a use is otherwise reasonable and is within the scope of the purposes of the Local Self-government Act, an abutting owner has an actionable right (unless such right is taken away by Statute) only when his right of access has been substantially interfered with and whether that is so or not is a question of fact to be determined having regard to all the circumstances of the case.'
In this case, it may be mentioned at the outset that it has not been proved that the disputed land is owned and possessed by the State as ordinary private property distinct from the road. Thus it being found in the present case that the disputed land which is admittedly recorded as Nainjori constitutes roadside land as such, prima facie forms part of the road subject to the same rights and incidents, the lower appellate court is right in holding that plaintiff as the owner of a building abutting on the roadside has the right of access to the road from his building and the roadside land is subject to the existence of user by the plaintiff for having access to the feeder road. In these circumstances, the next aspect that arises for consideration is whether by the proposed constructions, there is apprehension of substantial interference with this right of access.
7. To appreciate this aspect, it is convenient to refer to the sketch map (Ex. 3/a) prepared by the pleader commissioner who was appointed during the pendency of the suit to make a local investigation and give a report regarding the features of the locality. The correctness of the report (Ex. 3) and the sketch map (Ex. 3/a) is not disputed. The features of the locality as depicted in Ex. 3/a are as follows: The house of the plaintiff is to the north of the station feeder road intervened by the disputed land and the house of Sk. Manohar Ali to its east. In between the building of the plaintiff and his southern compound wall, there is an open space of 6'16' in width and the southern compound wall has a gate facing towards the disputed land. There is a narrow strip of land about 1 1/2 feet in width between the eastern extremity of the disputed land and the western wall of Sk. Monohar Ali's house practically in front of the gate in plaintiff's southern wall extending upto the station feeder road. There is a ridge 3 to 5 inches in width shown in broken parallel black lines in Ex. 3/a at a distance of 2 feet towards the west of the eastern extremity of the disputed land. It has been found from the position of this ridge that when the previous temporary structures existed on the disputed land, there was a gap of 3 1/2 feet in width between, the ridge and the western wall of Sk. Manohar Ali Thus, the access available to the plaintiff from his building to the feeder road was about 3, 1/2 feet in width.
Under the present lease, defendant No. 1 seems to have included the strip of about 2 feet in width to the east of the old ridge. Thereby, the width of the space which provided access to the plaintiff to the station feeder road has been reduced to 1 1/2 feet. The lower appellate court has found that reducing the width of the space over the disputed land giving access to the plaintiff from his house to the feeder road to 1 1/2 feet will inconvenience the plaintiff, and as such, amounts to substantial interference with his right. The point whether any particular use of the road-side land amounts to a substantial interference with the right of access of an abutting private owner is a question of fact to be determined in the circumstances proved in each case. In the present case, undoubtedly, plaintiff has right of access from his building to the station feeder road through the existing gate in his compound wall. Previously, a space of 3 1/2 feet in width was available to him for having access to the feeder road. By the present action of defendant No. 1, the width of this space giving access to the plaintiff has been reduced to 1 1/2 feet, which certainly will be inconvenient and has been rightly held to amounting to a substantial interference with the private abutting owner's right.
Therefore, the lower appellate court is right in decreeing the suit in part entitling the plaintiff to have access to the feeder road, over a space of 2 feet more in width to the east of the old ridge as shown in Ex. 3/a which will in all provide a width of 3 1/2 feet for user by the plaintiff.
8. In the result there is no merit in this appeal which is accordingly dismissed with costs.