K.Govindaraj Vs M.Anandan — Madras HC (2025) — LawSathi Research

K.Govindaraj Vs M.Anandan — Madras HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Second Appeal dismissed; judgment and decree dated 07.12.2023 of the Subordinate Court, Vaniyambadi in A.S.No.33 of 2018 (granting the plaintiff declaration and removal of encroachment) confirmed; no order as to costs; connected CMP.No.1367 of 2025 closed; defendants 1-4 directed to remove the remaining three encroachments at the earliest.

Issue for consideration

Substantial question (i): Whether the First Appellate Court erred in not considering Ex.A1, which (as framed) was executed by the 1st defendant in favour of the plaintiff based on an understanding between them in respect of the pathway, whereby the plaintiff would be estopped from claiming declaration and mandatory injunction. +1 more

Court's answer

Both substantial questions of law are answered in favour of the plaintiff; the First Appellate Court's reversal of the Trial Court's findings requires no interference by this Court.

Ratio / Principle

On the evidence of P.W.1, D.W.1 and the Advocate Commissioner's report with plan, the suit property is a public pathway, and the plaintiff is entitled to the relief of declaration as prayed for; the encroachments by the 5th defendant stand proved.

Key takeaways

The plaintiff, as a member of the public, has the right to pass and re-pass over the public pathway/street/paattai/road and to use its entire width; that right cannot be restricted at the choice of other persons.ratio¶18
As a regular user of the public pathway seeking removal of encroachment, the plaintiff is entitled to file the suit and need not invoke Order 1 Rule 8 CPC (representative-suit procedure).ratio¶19
The encroachment/construction by the 5th defendant on the public pathway is a continuing wrong; the cause of action continues so long as the encroachment is not removed.

Detailed headnote1 paragraphs

Madras High Court (R. Kalaimathi, J.) — Second Appeal dismissed; First Appellate Court's decree confirmed. Suit property in S.No.109/1B, Chettiyappanur Village was proved (P.W.1, D.W.1, and the Advocate Commissioner's scaled plan marking Paattai Poramboke and red-coloured constructions) to be a public pathway. Held: (i) a plaintiff who is a member of the public and regular user has the right to pass and re-pass over the entire width and to sue for removal of encroachment without invoking Order 1 Rule 8 CPC, following Hari Ram v. Jyoti Prasad, AIR 2011 SCC 952; (ii) the 5th defendant's construction of a house on the pathway under the Green House Scheme is a continuing wrong, so Section 22 of the Limitation Act applies and the suit filed on 12.04.2013 was not barred despite knowledge of the 2005 obstruction; (iii) evidence that the pathway was disused was rejected; mutual enmity does not excuse the encroachment. Substantial questions of law answered in favour of the plaintiff; official defendants 1-4 directed to remove the other three encroachments at the earliest.

S.A.No.53 of 2025

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 08.08.2025

CORAM:

THE HONOURABLE Mrs.JUSTICE R.KALAIMATHI

S.A.No.53 of 2025 and

CMP.No.1367 of 2025

K.Govindaraj … Appellant / 5^th Defendant

vs.

1.M.Anandan .. 1^st Respondent/Plaintiff

2.The State of Tamil Nadu rep.by its District Collector, having Office at Sathuvacheri, Vellore District.

The Tahsildar

Having Office at Taluk Office,

Vaniyambadi.

The Block Development Officer, Having Office at Alangayam.

The Scheme Block Development Officer, Having Office at Alangayam. … Respondents 2 to 5/

Defendants 1 to 4

PRAYER : This Second Appeal is filed under Section 100 of C.P.C., to set aside the judgment and decree made in A.S.No.33 of 2018, dated 07.12.2023 on the file of Subordinate Court, Vaniyambadi, Tirupattur, reversing the judgment and decree made in O.S.No.41 of 2013 dated

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28.02.2017 on the file of the Additional District Munsif Court, Vaniyambadi,

For Appellant : Ms.S.Ambika For R1 : Ms.Elizabeth Rani For R2 to R5 : Mr.P.Gurunathan Addl.Govt.Pleader

JUDGMENT

This Second Appeal has been preferred by the 5^th defendant Mr.K.Govindaraj, S/o.Krishnan against the Judgment and decree dated 07.12.2023 made in A.S.No.33 of 2018 on the file of Subordinate Court, Vaniyambadi, Tirupattur District.

The parties are indicated herein as per their litigative status and ranking made before the Trial Court.

According to the plaintiff, The suit property is a public pathway situated in S.No.109/1B. The said road starts from Chettiyappnur Village reaches the National Highway. The said road is shown in the rough plan as 'ABCDEF'. The plaintiff's ancestors had been using the

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said pathway to reach their lands and properties an extent of 2.04 Acres in S.No.110/1S belongs to the plaintiff. Originally, his mother Tmt.Chinnammal was owning the property and she executed a gift deed in favour of the plaintiff on 31.12.1982. On the east and west of the suit property in S.No.109/1C1 is situated and that belongs to the 5^th defendant. The plaintiff in order to reach his property in S.No.110/1A to an extent of 0.02.03 Hectares from the 5^th defendant by way of Sale Deed dated 02.03.2005.

3.1. The breadth of the suit property about 20 feet. From the

point 'E F' (as per Rough Plan) the plaintiff used to reach his property through the property purchased by the plaintiff from the 5^th defendant, which is shown in the plaint as rough plan as 'GHIJ'. The road namely, the suit property is in existence for more than 100 years. More so, bullock cart, cars and tractors coming to the plaintiff's land are also passing through the said road. The defendants no.1 to 4 are duty bound to maintain the suit property for public purpose without any encroachment or obstructions.

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3.2. The defendant nos.1 to 4 allotted house under Green House Scheme to the 5^th defendant without verifying the title records. The 5^th defendant has encroached the suit property, namely public pathway, and constructed a house. Defendants no.1 to 4 without verifying the title deeds sanctioned amount for construction of house in the suit property. The plaintiff sent a petition on 31.01.2003 to the defendants no.1 to 4 to take action for the construction of the house on the suit property. The 5^th defendant has completed the construction of building over the suit property. Because of the construction put up by the 5^th defendant, the plaintiff is not able to reach his lands, and the right of way is completely obstructed. The ingress and egress to the plaintiff's property is closed. The 5^th defendant has no right to obstruct the road. Hence the suit.

On behalf of the defendants no.1 to 4, it has been averred that the plaintiff has to prove that the suit property is a public road. After the inspection made by the defendants no.3 and 4, permission was granted to the defendant No.5 for constructing a house under Green House Scheme.

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On behalf of the defendant no.5, it has been stated that the rough plan attached to the plaint not to correct. The plaintiff is the maternal uncle of the 5^th defendant. Originally, the road is in existence around the compound wall of Sellani Oil Mill. The lands situated on the southern side of the plaintiff's land in S.No.109/1C1, was sold by th 5^th defendant to the plaintiff. In that land, a telephone tower is erected and the plaintiff used 10 feet road to reach his land and house. Earlier suits are pending between the same parties. As no Green House was allotted to the plaintiff, the wife of the 5^th defendant, who was the then Village Panchayat Vice President of the plaintiff has filed the suit to wreck vengeance.

Relevant issues were framed by the Trial Court. At trial, to substantiate the plaint details, on the side of the plaintiff has examined himself as P.W.1 and three documents were marked. Ex.A1(Ex.B2) is the copy of the Sale Deed dated 02.03.2025 executed by the 5^th defendant in favour of the plaintiff in S.No.109/1C1 for an extent of 0.02.03 Hectares. On the side of the 5^th defendant, the 5^th defendant Mr.K.Govindaraj, one Thennarasu ( DW2), Loganathan ( DW3) have been examined and two documents have been marked.

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The Trial Court, upon consideration of oral and documentary

evidence, and after hearing the arguments advanced by the learned counsel for both sides, and in consideration of the report of the Advocate Commissioner held that the plaintiff has purchased the property to an extent of 0.07 cents from the 5^th defendant on 02.03.2005 and has been using on alternate pathway, plaintiff had knowledge about obstructions made by the 5^th defendant in the year 2005 itself. As the suit was filed on 12.04.2013 and not within three years time, the suit is barred by limitation.

Aggrieved, the plaintiff preferred appeal before the Subordinate Court, Vaniyambadi, Tirupattur in A.S.No.33 of 2018. The First Appellate Court in consideration of the Trial Court records and held that after encroachment made upon the public property by the 5^th defendant, that it was a continuing wrong, and further held that the plaintiff is entitled for the relief sought for by granting two months time to remove the encroachments made by the 5^th defendant on the public road.

The following substantial questions of law arise for

consideration:-

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i) Whether the First Appellate Court had committed an error in not considering Ex.A1 which was executed by the 1^st defendant in favour of the plaintiff based on the understanding between the plaintiff and the 1^st defendant in respect of the pathway, thereby the plaintiff is estopped from claiming declaration and mandatory injunction?

ii) Whether the First Appellate Court was right in granting injunction to the plaintiff, when the plaintiff had to prove the necessity with regard to the public path way but he has failed in his individual capacity?

The plaintiff has examined himself as P.W.1. The plaintiff is

the maternal uncle of 5^th defendant. P.W.1 has filed proof affidavit in line with the details of plaint. The sum and substance of the plaintiff's case is that, he is a user of the suit property- public pathway situated in S.No.109/1B. He purchased a piece of land to an extent of 0.02.03 hectares from 5^th defendant by way of registered Sale Deed dated 02.03.2005 (Ex.B1). His further case is that defendants no.1 to 4 allotted fund under the Green House Scheme to the 5^th defendant and he constructed a house to the south of the public pathway, thereby obstructing the ingress and egress to the plaintiff's property.

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It is deducible from the testimony of P.W.1 that due to encroachment made by the 5^th defendant upon the suit property, he has been using the piece of land that he purchased from the 5^th defendant through Ex.A1– Sale Deed dated 02.03.2005

Further, it is the evidence of P.W.1 that he owns lands in S.No.109/1C1. He would also accede to the fact that Ex.A1- Sale Deed was effected in order to have a pathway, and he denied the fact that he had constructed a house under the Green House Scheme. D.W.1 would also state that he filed the suit against the plaintiff before the District Munsif Court, Vaniyambadi in O.S.No.301 of 2004 and the case was disposed on 10.10.2006. The plaintiff has filed a suit in respect of the common place in O.S.No.138 of 2010 before the District Munsif Court, Vaniyambadi and it is pending. It is the further evidence of D.W.1 that as the plaintiff has been not allotted any house under the Green House Scheme and as his wife was the Vice President of Village Panchayat Union, wantonly he laid the suit against him. D.W.1 would also state that the suit property is being used by the public as road.

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On perusal of Ex.A2- Copy of notice issued by the plaintiff to the defendants no.1 to 4 it was sent on 31.01.2013, the relevant postal receipt has also been filed dated 02.02.2003 (Ex.A2). D.W.2 – Loganathan, and D.W.3 – Thennarasu have supported the case of the 5^th defendant.

The suit property is a public pathway and is admitted by D.W.1. But D.W.3 would state that the said public pathway is not in use. D.W.3's evidence is totally not acceptable.

The Advocate Commissioner has filed his report along with the surveyor's report. He has measured the suit property namely, S.No.101/1B in Chettiyappanur Village.

On a careful perusal of the Advocate Commissioner's Report, he measured the suit property with the help of the Surveyor and enclosed a plan drawn to scale. In respect of S.No.109/1B, the suit property is shown in green colour which is shown as Poramboke Paattai, and the pathway is being used by the plaintiff and it is situated

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to the east of the suit property, [shown in red colour]. The Advocate Commissioner has mentioned about four encroachments made in the

suit property, and the relevant portion of the Advocate Commissioner is extracted hereunder:-

1// Xiy bfhl;lha; nkw;go 6 kPl;lh; ePsk; 5/3 kPl;lh; mfyk; bfhz;Ls;s kz;zhy; Xiyf; bfhl;lha; KGtJk; nkw;go rh;nt vz;/109 /1 gp g[wk;nghf;F ghl;ilapy; fl;lg;gl;Ls;sJ/

2/ rpbkz;l; rPl; tPl;od; xU gFjp nkw;go 6/1 kPl;lh; ePsk; 1/2 kPl;lh; mfyk; bfhz;l ,U gFjpfs; kl;Lk; rh;nt vz;/ 109 /1 gp g[wk;nghf;F ghl;ilapy; fl;lg;gl;Ls;sJ/

3/ muR bjhFg;g[ tPl;od; xU gFjp 6/2 kPl;lh; ePsk; 0/5 kPl;lh; mfyk; bfhz;l tPL nkw;go tPL jkpHf muR gRik tPL tH';Fk; jpl;lk; 2012-2013/ gadhsp nfhtpe;juh$; j/bg/fpUc;zd; vd;W nkw;go tPl;od; Kd; gf;fj;jpy; xU fy;btl;L gyif xl;lg;gl;l tPL rh;nt vz;/ 109 /1 gp g[wk;nghf;F ghl;ilapy; fl;lg;gl;Ls;sJ/

and the said encroachments have been made upon the public pathwaysuit property have been shown in red colour. The three encroachments mentioned supra are the constructions made by the 5^th defendant.

From the evidence of P.W.1, P.W.2, D.W.1 and D.W.3, it is

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clear that the suit property is a Paattai Poramboke. The plaintiff as an individual, is entitled to use the said pathway.

Of course, he cannot be denied that the plaintiff, as a member of the public has got the right to pass and re-pass over the public pathway/ street/ paattai/ road. He is also entitled to use the entire width of the public pathway, as mentioned supra. His right to use the pathway cannot be restricted at the choice ofl other persons.

Upon perusal of the Advocate Commissioner's Report, the Rough Sketch and Plan enclosed with report, it is pellucid that four constructions have been made upon the suit property. The case of the plaintiff is that because of the encroachment made by the 5^th defendant, he is not in a position to use the suit property as a pathway. As a regular user of the public pathway, in order to remove the encroachment made on the pathway, the plaintiff is entitled to file the suit and he need not to invoke Order 1 Rule 8 of C.P.C.

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My views are strengthened by the observations made by the Apex Court in Hari Ram vs. Jyoti Prasad and others, AIR 2011 SCC 952, relevant portion of the Judgment is extracted hereunder :

“20. T he next plea which was raised and argued vehemently by the learned senior counsel appearing for the appellant was that the suit was bad for noncompliance of the provisions of Order 1 Rule 8 of C.P.C. The said submission is also found to be without any merit as apart from being a representative suit, the suit was filed by an aggrieved person whose right to use public street of 10 feet width was prejudicially affected. Since affected person himself has filed a suit, therefore, the suit cannot be dismissed on the ground of alleged noncompliance of the provisions of Order 1 Rule 8 of C.P.C.”

The 5^th defendant has constructed a house upon the public pathway, in such circumstances, the act of encroachment made by the 5^th defendant is a continuing wrong. Therefore, the cause of action is a continuing one as long as the encroachment is not removed. Therefore, the limitation would run from the date on which the 5^th defendant started construction upon the suit property. Hence, Section 22 of the Limitation Act would squarely apply, and the suit is not barred

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by limitation. For better understanding, Section 22 of the Limitation Act is extracted hereunder :

Continuing breaches and torts – In the case of a continuing breach of contract or in the case of a continuing tort, a fresh period of limitation begins to run at every moment of the time during which the breach or the tort, as the case may be, continues.

Various housing schemes are introduced either by the State Government or by the Central Government in order to provide housing for the marginal sections of the society. When such schemes are executed, the defendants No.1 to 4 shall ensure that the beneficiaries do not make any encroachments.

Based upon the evidence of P.W.1, D.W.1 and the report of the Advocate Commissioner along with the plan enclosed, it is made clear that the suit property is a public pathway. Therefore, the plaintiff is entitled for the relief of declaration as prayed for in the plaint. The encroachments made by the 5^th defendant stands proved by the evidence of P.W.1, coupled with the report of the Advocate Commissioner.

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Suit is filed to declare that the suit property is a public

pathway. The plaintiff has not claimed any easementary right. From the evidence of P.W.1 and D.W.1, it is explicated that, though the plaintiff is the maternal uncle of the 5^th defendant, both have the habit of filing suits on each other. It is evident that they are inimical, but in this case enmity between them would not mitigate the commissions made by the 5^th defendant.

The First Appellate Court, after elaborate discussions, has come to a finding that the plaintiff is entitled for the relief sought for and has reversed the findings of the Trial Court, which needs no interference of this Court.

Therefore, this Court does not find any good reason to upset the findings of the First Appellate Court. Based on the aforestated observations and discussions, the substantial questions of law are answered in favour of the plaintiff.

For the forgoing reasons as mentioned supra, this Second Appeal stands dismissed. Sequel to this, the Judgment and Decree

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dated 07.12.2023 passed by the Subordinate Court, Vaniyambadi in A.S.No.33 of 2018 stands confirmed. There is no order as to costs. Consequently, connected miscellaneous petition is closed.

As regards the other three encroachments made upon the

suit property– public pathway, defendants no.1 to 4 shall take effective steps to remove the encroachments at the earliest, so as to enable the public to use the road without any hindrance.

08.08.2025

Index : Yes/No Speaking / Non-speaking order kkd

To

1.The Subordinate Court, Vaniyambadi, Tirupattur.

2.The Additional District Munsif Court, Vaniyambadi.

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R.KALAIMATHI, J.,

kkd

S.A.No.53 of 2025

08.08.2025

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