Dismissed

Smt Sasikala v. Smt Ammasi Ammal

Madras HC14 Jul 2021SA/854/2008

Case brief

AI extract

What is this about?

In this second appeal, the High Court of Madras held that an approved layout road does not automatically become a public road vesting with the Municipality without specific requisition under the Act. The appellant's claim for a public right of way failed due to lack of evidence that the road was ever vested or converted into a public street.

What did the court decide?

Second Appeal dismissed with costs throughout.

Smt Sasikala Vs Smt Ammasi Ammal — Specific Performance | Madras HC (2021)

¶1

IN THE HIGH COURT OF JUDICATURE AT MADRAS

¶2

RESERVED ON : 28.06.2021

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PRONOUNCED ON : 14.07.2021

¶4

CORAM

¶5

THE HONOURABLE MS. JUSTICE P.T. ASHA

¶6

S.A.NO.854 OF 2008
AND
M.P.NO.1 OF 2008

¶7

Sasikala ...Appellant / 1st respondent /
 Plaintiff

¶8

Vs.

¶9

1.Ammasi Ammal (deceased)
2.Sivakani
3.K.Kuppusamy Gounder ...Respondents / Appellants /
 Defendants
4.The Commissioner,
 Tirupur Municipality ...Respondent / 2nd Respondent /
Defendant

¶10

5.G.Subramaniam
6.N.Sugantha Devi
7.G.Devarajan
8.G.Murthy
9.J.Dhanalakshmi
10.N.Barath Kumar
11.N.Bhuvanamanohari ...Respondents

¶11

(Respondents 5 to 11 were brought on record as the legal
representatives of the deceased 1st respondent Ammasi Ammal vide
order of this Court dated 17.12.2020 in C.M.P.No.23596 of 2019
in S.A.No.854 of 2008)

¶12

PRAYER : Second Appeal filed under Section 100 of the Code of
Civil Procedure against the Judgment and Decree dated 12.12.2006
in A.S.No.48 of 2005 on the file of the learned Subordinate
Judge, Tirupur setting aside the Judgment and Decree dated
14.06.2005 in O.S.No.106 of 1997 on the file of the learned
District Munsif, Tirupur.

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¶14

For Appellant : Mr.P.B.Sampath Kumar
For Respondents :Mr.M/s.P.Sarathi
for R4 - No appearance
Mr.E.K.Kumaresan
for R5, R7 to R9.

¶15

R1 - died

¶16

R3 - Given up

¶17

Not ready in notice regarding
R2, 6, 10 and 11

¶18

JUDGMENT

¶19

 The unsuccessful plaintiff before the Courts below is the
appellant before this Court. The parties are referred to in the
same litigative status as before the trial Court.

¶20

2.The plaintiff had filed the suit O.S.No.106 of 1997 on
the file of the learned District Munsif, Tirupur. In the said
suit, the plaintiff had sought for the following reliefs:

¶21

"(a)declaring that the sale of portion

¶22

of suit road by 3rd defendant to defendants 1
and 2 are not valid?

¶23

(b)declaring that the plaintiff as a
public is entitled to the user of the suit road
fully described in the schedule herewith passing
orders defendants 1 to 3 remove the small bund
put across the suit road as the Western? and

¶24

(c)restraining the defendants 1 to 3 or
anybody else on their behalf from in any way
obstructing the use of the suit road by the
plaintiff more particularly and putting up any
construction in the road portion?."

¶25

3.The suit property has been described as follows:
SCHEDULE OF PROPERTIES

¶26

"The East West Road, situated in the Layout
formed in T.S.No.887/2 of Tirupur Municipality and
approved as L.P./R(CPN) No.298/86 of Deputy Director
of Town Planning Coimbatore and running between
several plots particularly between the plots of
defendants 1and 2"

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4.The case of the plaintiff is that the properties
comprised in T.S.No.887/2 falling within the Tirupur
Municipality limits belonged to the 3rd defendant and his son.
They had formed a layout in the suit property and the same has
been approved by the Town Planning Authority. A 30 feet wide
road is shown in the Plan and considering the fact that the
layout has been approved, the road becomes a public road
accessible to the general public. She would further contend
that the 1st and 2nd defendants had purchased the plots which
were situate at the Western end of the layout on either side of
the road, i.e., on its North and South.

¶29

5.The plaintiff had purchased the plots on the West of
the 2nd defendant's plots. A 30 feet road in T.S.No.888
belonging to the third parties could be reached from the suit
road. The plaintiff who had put up a construction had arranged
to put up a gate facing East - West Road in the layout in
T.S.No.888. The defendants 1 to 3 prevented the plaintiff from
using this road and with this intention had created documents
whereby the road was alienated to the 1st and 2nd defendants
with each taking equal portions of the road abutting the
respective plots. According to the plaintiff, the sale of the
road was not valid as the same was a public road and therefore,
not binding on the plaintiff. After the sale in favour of the
defendants 1 and 2, they have blocked the access to the road by
putting up a small bund with hollow block bricks across the road
on the Western end of the road thereby preventing the plaintiff
from entering the road.

¶30

6.The 1st defendant has filed a Written Statement which
was also adopted by the 2nd defendant in which she would inter
alia contend that the very purchase of the property by the
plaintiff is in doubt as the Sale Deed has been registered in
the State of Kerala by showing minuscule extent as being
purchased in the State of Kerala. The defendant would submit
that the sale in favour of the plaintiff does not confer her
with any right in the properties comprised in T.S.No.887. The
road that has been formed in the layout in T.S.No.887 is
exclusive for the residents of that layout. That apart, the
roads and other areas have not been handed over to the Tirupur
Municipality and continued to be that of the 3rd defendant and
the son.

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7.The plaintiff has been given a right of the access to
her property situate at T.S.No.888 under the Sale Deed only
through an East - West cart track situate at the North of the
property which proceeds West to reach KVR Nagar and no right has
been given in the road in T.S.No.887. Much prior to the
institution of the suit, the 1st defendant has put up a hollow
brick wall, a flush out latrine, a pucca septic tank in her
portion. There is no road in existence. The suit therefore
deserves to be dismissed.

¶33

8.The 3rd defendant, the layout owner had filed a Written
Statement contending that even according to the plaintiff, she
had purchased the properties only in T.S.888 and not in T.S.887.
The two survey numbers belonged to two different persons and the
owner of one cannot intrude into the properties of the other.
The layout had been formed for the purchasers of the site and
amenities provided therein are only for the benefits of these
site owners. In fact, the Sale Deed under which the plaintiff
had purchased the property does not give her any right to any
portion of the property in T.S.887. The plaintiff's vendors and
their family had never been in enjoyment of any portion of the
lands comprised in T.S.887.

¶34

9.He would further contend that although the layout was
technically approved by the Deputy Director of Town Planning the
same had not received the approval of the Municipality and
further, the sites and the roads when never handed over to the
Tirupur Municipality. The road in the layout was maintained
only as a private road and the Municipality has not never
maintained it as a public road. He would also contend that the
plaintiff did not have any necessity to access this private road
in T.S.887 since she had a separate access along the
Municipality road leading from Erukkadu Extension 1st Street
leading to KVR Nagar. This defendant had every right to sell
his property in the manner he chose to. The allegation in the
Plaint that a bund was put up only on 22.03.1996 was a false
statement since the same had been put up long ago. He would
also contend that the plaintiff had originally put up a pucca
North - South brick wall in her portion knowing fully well that
she had no access beyond that. Thereafter, she demolished the
same to create an opening into the defendants' property.
Considering the fact that the plaintiff did not have a prima
facie case, the defendant had sought for dismissal of the suit.

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10.After the Written Statement has been filed by the
defendants 1 to 3 the plaintiff had come forward with an
amendment in I.A.No.1312 of 2002 seeking to amend the schedule
of the property by amending the original T.S.887 to 887/2 an to
add the word " Coimbatore" after the Deputy Director of the Town
Planning. The suit application was ordered on 31.10.2003.
After the filing of the amended copy of the Plaint, the 1st
defendant had filed an additional Written Statement which was
one again adopted by the 2nd defendant on 24.03.2005, inter alia
contending that the plaintiff has no semblance of her right,
title or possession to the suit property. From the schedule of
the property given both in the original Plaint as well as the
amended Plaint, one is unable to locate or identify the same.
The suit does not conform to the provisions of the Order 7 of
the Code of Civil Procedure. Further, the plaintiff had put up
a South - North brick wall running through her property and
thereafter, with a view to staking a claim on the defendants'
property. The plaintiff had demolished the Wall on both sides.
The defendant would further submit that T.S.888 and 887 are
separate and a distinct properties and the owner of one cannot
claim any right in the property of the other. Once again they
had reiterated for the dismissal of the suit.

¶37

11.The learned District Munsif, Tirupur had framed the
following issues:

¶38

2/jhth ghij vy;nyhUf;Fk; ghj;jpag;gl;l bghJthd ghijah>

¶39

3/thjp nfhUk; tpsk;gpif ghpfhu';fs; thjpf;F fpilf;fj;jf;fjh>

¶40

4/thjp nfhUk; epue;ju cWj;Jf;fl;lis ghpfhuk; thjpf;F fpilf;fj;jf;fjh>

¶41

12.The plaintiff had examined one Swamiappan, her husband
as P.W.1. The plaintiff did not enter the witness box. In
support of her case, she had only marked the document under
which she had purchased her property. On the side of the
defendants, the son of the 1st defendant was examined as D.W.1
and documents Ex.B.1 to Ex.B.4 were marked. The Advocate
Commissioner's Report and Plan were marked as Ex.C.1 and Ex.C.2.
On a consideration of the evidence on record, the learned
District Munsif, Tirupur, had dismissed the suit. Aggrieved by

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¶43

the same, the plaintiff had filed A.S.No.48 of 2005 on the file
of the learned Subordinate Judge, Tirupur. The learned
Subordinate Judge also confirmed the Judgment and Decree of the
trial Court and aggrieved by this concurrent Judgment and
Decree, the plaintiff is before this Court.

¶44

13.The Second Appeal was admitted on the following
Substantial Questions of Law by orders of this Court dated
11.07.2008:

¶45

"1.Whether on the facts and in the
circumstances of the cases the learned Appellate
Court was right in holding that the third
respondent herein has actionable claim over the
passage after the approval of the layout by the
fourth respondent/Tirupur Municipality?

¶46

2.Whether on the facts and in the
circumstances of the cases the learned Appellate
Court was right in rejecting the plea of the
appellant herein that the suit passage has been
vested with the public once the layout is approved
and it is not necessary that the said passage has
to be physically handed over to the Tirupur
Municipality?

¶47

3.Whether on the facts and in the
circumstances of the case the learned Appellate
Court was right in holding that the Doctrine of
Estoppel shall not apply to the third respondent
after divesting of his rights in the suit passage
to the Tirupur Municipality?"

¶48

14.Mr.P.B.Sampath Kumar, learned counsel appearing on
behalf of the appellant would submit that D.W.1 in her evidence
had admitted that the property in question was a common layout
which was the access to the common road. He would further argue
that the plaintiff had discharged her duty by pleading about the
layout details and the 3rd defendant who had promoted the layout
has deliberately not filed the same into Court. He would
further submit that there is no dispute between the parties that
the road in question, namely, the suit property was a layout
road. It is the argument of the learned counsel for the
appellant that once a layout has been approved then all the
roads situate therein would become a public road and the general
public would have access to the same. He would further draw the

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¶50

attention of this Court to the Written Statement of the 1st
defendant wherein the 1st defendant has sought to argue that if
a road is formed in the layout it would only be for the benefits
of the owners of the layout. He would also highlight the
statement of the 3rd defendant wherein the 3rd defendant had
admitted that the layout had been approved by the Deputy
Director of the Town Planning Authority, but had very
ingeniously contended that since the road had not been gifted to
the Tirupur Municipality the roads would remain a private road
not accessible to the general public but only to the owners of
the layout.

¶51

15.The learned counsel would highlight the answers given
by the son of the 1st defendant who has examined as DW1 to
certain suggestions put forth by the learned counsel for the
plaintiff which according to the learned counsel clearly proves
the case of the plaintiff that the road in question is a public
road.

¶52

16.The learned counsel would rely upon the Judgment of
the Hon'ble Supreme Court in 1995 SCC (1) 47 [Pt.Chet Ram
Vashist vs Municipal Corporation Of Delhi]. He would also argue
that the plaintiff being one of the members of the public was
well within his right to question the conversion of the road
into private property. He would submit that both the Courts
below has failed to appreciate that once the layout has been
approved then all the roads in the layout automatically stand
vested with the Municipality and as a consequence become
accessible to the general public. Once the right of the third
parties got attached to the road in question the 3rd defendant
had no right to sell the same to the defendants 1 and 2,
particularly, when the right has been divested. He would
therefore submit that the Courts below have grossly erred in
dismissing the suit and would therefore pray that the same
should be allowed.

¶53

17.Per contra, Mr.E.K.Kumaresan, learned counsel
appearing on behalf of the respondents 5, 7 to 9 would submit
that the layouts comprised in T.S.Nos.887/2 and 888 are distinct
and independent layouts. The plaintiff who has come forward
with the case that he is entitled to usage of the pathway, has
not filed any document to prove her right over the same except

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¶55

for marking Ex.A.1 - Sale Deed in her favour. The defendants 1
and 2 have purchased the properties under Ex.B.1 to Ex.B.4 which
are of the years 1995 and 1996. The plaintiff has come forward
with the case for a declaration that the East – West road
described in the Layout Plan is a public road and for a
consequential injunction. The property as described in the suit
schedule is incapable of being identified. The plaintiff who
has described the property as East - West Road in the layout
approved as L.P./R(CPN) No.298/86 has not chosen to file the
said Layout Plan. The learned counsel would submit that the
plaintiff has not proved her locus standi to file the suit. The
plaintiff already has an other access through a 30 feet road.
The learned counsel would submit that even under the Sale Deed
Ex.A.1 under which the plaintiff had purchased her property, the
property on the East is shown as that of the 2nd defendant's
property. Further, the plaintiff's property opens out to the
road on the North. He would also draw the Court's attention to
the cross examination of P.W.1 wherein he had admitted that
under the Sale Deed, no access has been given to the lands in
T.S.No.887/2. He would also point out the admission of P.W.1
that without touching the lands in T.S.No.887, she has access to
Mangalam Salai through her road.

¶56

18.Apart from the property purchased by the plaintiff,
her husband, who deposed as P.W.1, had purchased another
property in T.S.No.888. Even in this document, no access is
given in T.S.No.887. The witness has also admitted that from a
reading of the schedule, the identity of the property cannot be
made out. He would further submit that the Appellate Court has
considered the evidence on record and come to the conclusion
that plaintiff has not based her claim on an easementary right
or on the basis that both the parties claim title to a common
owner. The Appellate Court has also considered the fact that
the plaintiff has not been able to establish that the roads have
been gifted or taken over by the 4th respondent Municipality and
without there being the vesting the same cannot be considered as
a public road and consequently, the Appeal had failed. He
therefore sought for dismissal of the Second Appeal.

¶57

19.Heard the learned counsels appearing on either side
and perused the papers.

¶58

20.The plaintiff would seek the relief of declaration

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that the plaintiff as a public is entitled to use the suit
property described in the schedule and for a direction to the
defendants 1 to 3 to remove bund put up on the suit road at the
Western end and consequently, restraining the defendants 1 to 3
from obstructing the plaintiff from using the suit road.

¶61

21.The suit road has been described as an East - West
road situate in the layout formed in T.S.No.887/2 approved in
L.P./R(CPN) No.298/86 of Deputy Director of Town Planning
Coimbatore and running between several plots of the plaintiff
and the defendants 1 and 2. A perusal of the schedule would
indicate that the plaintiff is seeking a right to access the
East - West Road which is running through the layout with
particular reference to the same lying between the 1st and the
2nd defendant's plots. The plaintiff would base this right on
the premise that since the layout in T.S.No.887 has been
approved and layout formed as per the Municipalities Act all
roads and the common places would vest with the Municipality and
the entire public has got a right to use such a road. The suit
is not filed in a representative capacity. That apart, there is
no plea of an easementary right. This may be on account of the
fact that on the Northen Side of the plaintiff's property there
lies a 30 feet toad and therefore, an easement of necessity
would not arise. The document under which the plaintiff has
purchased the properties would show the property of the 2nd
defendant on the East. Even under the Sale Deed Ex.A.1 the
boundary is not the road.

¶62

22.A perusal of the Plaint schedule would clearly prove
that the claim of access to the general public to the alleged
road if in existence would stop with the property of the
plaintiff. The Eastern boundary of the plaintiff's property is
the 2nd defendants' property. Therefore, the contention that it
will open out access to the general public is absolutely
incorrect, particularly, when the property to the South of the
property covered under Ex.A.1, does not belong to the plaintiff.
The only argument of the plaintiff/appellant is that once the
layout has been formed these roads would automatically stand
vested with the Municipality and would partake the character of
a public road. The pleadings would clearly demonstrate that the
plaintiff is seeking to espouse a private right in the guise of
a public right. This is clear from a perusal of the following
statement in Paragraph 5 of the Plaint. “The plaintiff is

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¶64

putting up construction and in such course arranged to put up a
gate facing the Est West road.”

¶65

23.In these circumstances, it is therefore necessary to
examine the provisions of the Tamil Nadu District Municipalities
Act, 1920 (hereinafter referred to the Act). Section 3(20) of
the Act defines a Private Street and 3(21) of the Act defines a
Public Street. The definitions are extracted hereinbelow:

¶66

"Section 3(20) 'Private street' means any

¶67

street, road, square, court, alley, passage or riding-
path, which is not a 'public street' but does not
include a pathway made by the owner of premises on his
own land to secure access to or the convenient use of
such premises ;

¶68

Section 3(21) 'Public street' means any
street, road, square, court, alley, passage or riding-
path 3 [over which the public have a right of way]
whether a thoroughfare or not, and include —

¶69

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

¶70

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

¶71

 (c) the drains attached to any such street, public
bridge or causeway and the land, whether covered or
not by any pavement, verandah, or other structure,
which lies on either side of the roadway upto the
boundaries of the adjacent property whether that
property is private property or property belonging to
4 [the Government] ;"

¶72

24.Chapter IX deals with Streets. Sections 175 to 179
deals with Private Street. Section 179 clearly provides that
where a street has been formed as detailed under the provisions
of Section 178, such street shall, on the requisition of not
less than three-fourths of the owners thereof, be declared a
public street. Therefore, a private street should be declared
as a public street only if not less than three-fourths of the
owners request the Municipality to so convert. The plaintiff
has not able to establish that the provisions of Section 179 has
been followed in the instant case. That apart, it is only public
streets that are open to all as provided under Section 180A of
the Act. It is only when the streets are vested in the
Municipality that it is open to the general public. Therefore,
by reason of the above provisions, it is clear that the suit

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¶74

property which was never vested with the Municipality and which
was never asked to be converted into a public street continued
to be a private road.

¶75

25.The plaintiff has filed the suit styling himself as
one of the Members of the public but has however not examined
any third person to show that the suit property was to be used
by such persons before the alleged blocking by the defendants.
Further, the plaintiff has not been able to prove that there is
a road in existence to the East of her property. The only
document filed by the plaintiff is the Sale Deed in her favour
and even this document does not advance the case of the
plaintiff since the property on the East is only shown as the
property of the 2nd respondent and not as a road. That apart,
the plaintiff has not filed the Layout Plan though in the suit
schedule the plaintiff would describe the East - West portion as
indicated in L.P./R(CPN) No.298/86 of Deputy Director of Town
Planning Coimbatore. The plaintiff has not proved any
easementary right over the suit property either in the form of
prescription or through grant. The Judgment of the Hon'ble
Supreme Court in 1995 SCC (1) 47 [Pt.Chet Ram Vashist vs
Municipal Corporation Of Delhi], would not advance the case of
the plaintiff since in the instant case the very existence of
the road has not been proved by the plaintiff. Further,
considering the fact that the plaintiff has failed to prove the
existence of the so called East - West of the road, the
Substantial Questions of Law are answered against the plaintiff.

¶76

In fine, the Second Appeal stands dismissed with costs
throughout. Consequently, connected Miscellaneous Petition is
closed.

¶77

Assistant Registrar (CS-IV)

¶78

// True Copy //

¶79

Sub Assistant Registrar

¶80

mps

¶81

To

¶82

1.The Subordinate Judge, Tirupur.

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¶84

2.The District Munsif,
 Tirupur.

¶85

Copy To

¶86

 The Section Officer,
 V.R.Section,
 High Court, Madras.

¶87

+1cc to Mr.P.B.Sampathkumar, Advocate SR.No.33340

¶88

+1cc to Mr.E.K.Kumaresan, Advocate SR.No.33066

¶89

S.A.No.854 of 2008
and M.P.No.1 of 2008

¶90

LN(CO)
RVM(14/09/2021)

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Smt Sasikala v. Smt Ammasi Ammal

Case brief

What is this about?

What did the court decide?

Smt Sasikala v. Smt Ammasi Ammal

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

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