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Damodara Naidu and ors. Vs. Thirupurasundari Ammal and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberSecond Appeal No. 345 of 1969
Judge
Reported inAIR1972Mad386
AppellantDamodara Naidu and ors.
RespondentThirupurasundari Ammal and anr.
Cases ReferredAttorney General v. Conservators of
Excerpt:
.....action of injury if right to go on highway was obstructed by anyone - held, petitioner entitled to access public road and directed defendants to remove wall. - - the learned judge confirmed the decision of the trial court and upheld the plaintiffs' title and possession in regard to item 1. in regard to item 2, the learned judge held that it is clearly of item (1) was entitled to have access to the road at any point where item (1) touched the road namely ab, that there was no need to establish any special injury in case of interference by any one with the plaintiffs' right of access to the road he being the owner of item 1 abutting the highway. just as the right of access is subject to the right of the public and must be exercised subject to the general obligations as to nuisance and..........the plaintiffs' access to the highway, that the plaintiffs, whose lands (item 1) abut the public road, are thus prevented from having access from their lands to the highway and that the defendants are unlawfully putting up obstructions with a view to see that the plaintiffs give up their properties. the present suit is filed by the plaintiffs for the reliefs already mentioned. 2. defendants 1, 3 and 4 filed a joint written statement. their case is that the plaintiffs or their father have no title to or possession of item 1, that item 1 belonged to a trust, that the second defendant is living in item 1 for over 12 years that the defendants were not aware of the proceedings in o.s. 14 of 1969, that item 2 was not the subject-matter of the suit, that the access from item 1 to the.....
Judgment:

1. The defendants are the appellants. The suit is for declaration of the plaintiffs' title to and possession of Item 1, for declaration of the plaintiffs' right of way over Item 2 and for a mandatory injunction directing the removal of the obstruction on Item 2 preventing plaintiffs' access to the highway. The plaintiffs' case is that their father Chokkalinga Chetti became entitled to the suit first item under an usufructuary mortgage deed dated 21-6-1935, that he died in 1940 when the plaintiffs were minors, that one Sri P. Raghavan, advocate, was appointed by the District Court as the guardian for them, that the said guardian leased out the suit first item to Venkatarama Naidu, the elder brother of the defendants, under a lease deed dated 1-8-1947, that the lessee was in possession of Item 1 till his death and thereafter his widow continued to be in possession as a tenant, that the plaintiffs after attaining majority filed O.S. 14 of 1960 on the file of the District Munsif Court, Trivellore, for recovery of possession of item 1, that the suit was dismissed by the trial court, but on appeal the plaintiffs succeeded, that when the plaintiffs attempted to take delivery of Item 1, the present defendants obstructed the delivery, that the plaintiffs filed an application for removal of obstruction, which was allowed, that the delivery was not effected and while the plaintiffs were seeking to take steps to recover actual delivery, the defendants hastily put up a wall on the west of item 2, that the said wall completely prevented the plaintiffs' access to the highway, that the plaintiffs, whose lands (item 1) abut the public road, are thus prevented from having access from their lands to the highway and that the defendants are unlawfully putting up obstructions with a view to see that the plaintiffs give up their properties. The present suit is filed by the plaintiffs for the reliefs already mentioned.

2. Defendants 1, 3 and 4 filed a joint written statement. Their case is that the plaintiffs or their father have no title to or possession of item 1, that item 1 belonged to a Trust, that the second defendant is living in Item 1 for over 12 years that the defendants were not aware of the proceedings in O.S. 14 of 1969, that item 2 was not the subject-matter of the suit, that the access from item 1 to the public highway was not along AB in item 2, that the plaintiffs never owned any property west of the trunk road, that the defendants are in possession and have put up constructions at their cost and that the plaintiffs have not title to or possession of the suit properties.

3. The second defendant filed a separate written statement contending that the lease deed executed by the plaintiff's father in 1947 was a fabricated one, got up for the purpose of the suit.

4. The trial court held that the plaintiffs had title to and possession of item 1, that the second defendant had not prescribed title to the same by adverse possession, that the plaintiffs are entitled to have access at any point along AB in item 2 to the road and that the plaintiffs are entitled to the relief of mandatory injunction. In the result, the suit was decreed as prayed for.

5. The defendant filed A. S. No. 15 of 1967 to the Subordinate Judge of Chingleput. The learned Judge confirmed the decision of the trial court and upheld the plaintiffs' title and possession in regard to item 1. In regard to item 2, the learned Judge held that it is clearly of item (1) was entitled to have access to the road at any point where item (1) touched the road namely AB, that there was no need to establish any special injury in case of interference by any one with the plaintiffs' right of access to the road he being the owner of item 1 abutting the highway. In the result, the appeal was dismissed.

6. The defendants have filed the above second appeal. Item 1, which is a house site is of the extent of about 1/3rd ground (40ft x 20ft). A Commissioner was appointed to report on the location of the suit properties. He has filed a plan and a report. From the report it is seen that the plot A, B, C, D is item 1 and the plot A, B, E, F is item 2. There is a hut in item 1 and that the second defendant and his family are residing in the hut. There are pucca permanent compound walls on the north and on the west of item No. 1. On the eastern side there is a newly built wall constructed of mud and bricks. There is an entrance between C-1 and C-2 on the southern side of item 1, which is being used by the inmates of the hut in item 1 for going in and coming out of the hut. The learned counsel for the appellants contends that the plaintiffs have never been exercising their right to go to the public road on the eastern side and that throughout they have been using only the passage C-1, C-2 leading to a lane on the south and therefore the wall put up on AB in the road margin cannot be objected to by the plaintiffs.

7. The courts below have found that the second item is the road frontage and that the first item abuts the road. The question then is whether the defendants are justified in putting up the wall AB preventing the plaintiffs from having access at any point in AB (20 ft in length) touching the highway. The plaintiffs being owners of land abutting the highway have an undoubted right of access to the street from any part of their premises. In Mackenzie's Law of Highways, 21st Edn at page 58 it is stated as follows:--

'The owner of land adjoining a highway has a right of access to the highway from any part of his premises. This is so whether he or his predecessors originally dedicated the highway or part of it and whether he is entitled to the whole or some interest in the ground adjacent to the highway or not. 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 right 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.......The right of the owner of land adjoining a highway to access to or from the highway from or to any part of his land is a private right, distinct from the right to use the highway as one of the public, and the owner of the land whose access to the highway is obstructed may maintain an action for the injury whether the obstruction does or does not also constitute a public nuisance'.

Thus it is seen that where there is a public highway the owners of land adjoining the highway have a right to go upon the highway from any point on their land; and if that right is obstructed by any one the owner of the land abutting the highway is entitled to maintain an action for the injury, whether the obstruction does or does not constitute a public nuisance.

8. The learned counsel for the appellants contends that the plaintiffs have not been claiming access to the highway or exercising their right to access along AB and that they have been going out of their property (item 1) through the openings C-1 and C-2 in CB to the lane in the south and that they have abandoned the right of access to the road along any point on AB. The Commissioner's report and the plan show that the construction in item 2 along AB was feverishly put up in a hurry just prior to the Commissioner's visit. The learned Subordinate Judge had accepted the report of the Commissioner and it cannot be assumed that the plaintiffs have abandoned their right of access to the highway through any point in AB and the plaintiffs are entitled to have the obstruction removed in order to give them free access to the highway along any point on AB.

9. My attention is drawn by the learned counsel for the appellants to the decision in Movva Butchamma v. Movva Venkateswarara, : AIR1969AP136 which dealt with an obstruction to a highway and the right of the public to remove the obstruction to enable them to use the highway for the passage of men, cattle and carts for reaching his plot. But that case has nothing to do with the right of access of an owner of land adjoining the highway which is a private right distinct from his right to use the highway as a member of the public. The learned counsel referred to the decision in Ganapathi Mudaliar v. Ponnusami Kounder, : (1970)2MLJ295 . That case is distinguishable on facts. The learned counsel for the appellants referred to the Attorney General v. Conservators of the Thames. (1862) 71 ER 1. That case is also not of much assistance in the present case.

10. I am, therefore, of opinion that the plaintiffs are entitled to have access to the public road abutting item 1 free of any obstruction and for a mandatory injunction directing the defendants to remove the wall put up on item 2 above AB blocking the entry to item 1. The judgment and decree of the courts below are correct.

11. The second appeal fails and it is dismissed. There will be no order as to costs. No leave.

12. Appeal dismissed.


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