Madras High Court
Peddalakshmi Ammal (Died) vs Chairman-Cum-District ... on 18 April, 2023
S.A.No.349 of 2007
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.04.2023
CORAM:
THE HONOURABLE MR. JUSTICE V.LAKSHMINARAYANAN
Second Appeal No.349 of 2007
1.Peddalakshmi Ammal (died)
2.K.Murugesan
3.K.Venkatesh
4.K.Velu
5.K.Gopal
6.K.Ramesh
7.K.Manjula .. Appellants
(Appellants 2 to 7 brought on record
as legal heirs of the deceased 1st
appellant vide Court order dated
31.08.2021 made in S.A.No.349 of 2007)
Vs.
1. Chairman-cum-District Collector
District Development Council
Collector Office, Dharmapuri.
2.Hosur Municipality
Represented by Commissioner
Byepass Road, Hosur Post
Dharmapuri District. .. Respondents
Prayer: Second Appeal is filed under Section 100 of Civil Procedure
Code against the judgment and decree dated 30.04.2004 made in
A.S.No.1 of 2003 on the file of Sub Court, Hosur, reversing the judgment
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S.A.No.349 of 2007
and decree dated 22.07.2002 made in O.S.No.110 of 1996 on the file of
the District Munsif Court, Hosur.
For Appellants : Mr.J.Saravana Vel
For R1 : Mr.B.Tamil Nidhi
Additional Government Pleader (CS)
For R2 : Mr.N.Subbarayalu
JUDGMENT
I heard the arguments of Mr.J.Saravana Vel, learned counsel for the
appellants, Mr.B.Tamil Nidhi, learned Additional Government Pleader
for the 1st respondent and Mr.N.Subbarayalu, learned counsel for the 2nd
respondent/Municipality and I have carefully perused the judgments of
the trial Court, lower Appellate Court and the records furnished by this
Court.
2. The appellants are the plaintiffs. The respondents are the
defendants. The appellants claim a free passage way from the new bus
stand to their property. They also sought for mandatory injunction
directing the respondents to remove the wall around the new bus stand.
In addition, they wanted to remove all the three shops on the northern
side of the property so that the appellants/plaintiffs can have access to
S.No.826/3 of Hosur Village, Krishnagiri District.
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S.A.No.349 of 2007
3. It is on record that the lands were acquired by the Government
of Tamil Nadu for creation of the bus stand. Whatever easement is
available prior to the acquisition, comes to an end on acquisition and a
party cannot claim continuous right of easement after the acquisition has
been made. Apart from that, there is no definite pathway in the suit
records. It shows that there is an “arabi kollai” which was also a subject
matter of the acquisition. Therefore, the entire plot which stood acquired
by the Government of Tamil Nadu for creation of the bus stand includes
any right of easement, passage or any such right which existed prior to
the acquisition.
4. The Municipality has secured its property by construction of a
wall and it is not open to a party to state that pre-existing passage gave
them easy access to the road as that right too stood acquired. The right of
easement can be claimed, if and only, if it is either easement of necessity
or by grant or by prescription. None of the categories fall for
consideration in the present case. The bus stand was acquired in and
around 1986 and the present suit was filed in the year 1993. Therefore,
there is no easement by prescription. The learned Advocate
Commissioner found that there is an alternate passage. Therefore,
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S.A.No.349 of 2007
easement of necessity also does not arise. To reiterate, however,
inconvenient alternate passage may be, if it is available, then a party
cannot be granted a relief of easement of necessity. The 2nd defendant has
not executed any document in favour of the appellants agreeing to a
passage way. Therefore easement by grant also does not arise.
5. Apart from that, it is open to the Municipality to protect its
property by construction of wall. Mandatory injunction can be granted
only if the plaintiff has subsisting right and that right is infringed either
by encroachment or by any illegal construction by the defendant. That
not being the position in the present case, I am not able to agree with the
arguments of the learned counsel for the appellants. None of the question
of law framed by the appellants arise for consideration in the present
case, as it would be clear from the discussions made above. Hence, the
Second Appeal is dismissed. No costs.
18.04.2023
Index : Yes / No
Neutral Citation : Yes / No
kj
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S.A.No.349 of 2007
To
1. Chairman-cum-District Collector
District Development Council
Collector Office
Dharmapuri.
2.Hosur Municipality
Represented by Commissioner
Byepass Road, Hosur Post
Dharmapuri District.
3.The Record Keeper
V.R. Section
High Court, Chennai.
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S.A.No.349 of 2007
V.LAKSHMINARAYANAN,J.
Kj
Second Appeal No.349 of 2007
18.04.2023
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