PENU BALAKRISHNA IYER Vs. ARIYA M RAMASWAMI IYER

JUDGEMENT

(1.) This appeal by special leave raises a short question about the correctness, propriety and legality of the decree passed by the Madras High Court in second appeal No. 91 of 1955. The respondents had sued the appellants in the Court of the District Munsif of Thiruvaiyaru for a mandatory injunction directing the removal of certain masonry structure standing on the suit site which was marked as ABCD in the plan attached to the plaint and for a permanent injunction restraining the appellants from building upon or otherwise encroaching upon suit property and from causing obstruction to the right of way of the residents of the village in which the suit property was situated. According to the respondents, the plot on which encroachment had been caused by the construction of the masonry structure by the appellants was a street and the reliefs they claimed were on the basis that the said property formed of a public street and the appellants had no right to encroach upon it. This suit had been instituted by the respondents in a representative capacity on behalf of themselves and residents in the locality.

(2.) The appellants disputed the main allegation of the respondents that the masonry structure to which the respondents had objected, stood on any part of the public street. According to them, the plot on which the masonry structure stood along with the adjoining property belonged to them as absolute owners and as such they were entitled to use it in any manner they pleased. On these pleadings, appropriate issues were framed by the learned trial Judge and on considering the evidence, findings were recorded by him in favour of the respondents. In the result, the respondents' suit was decreed and injunction was issued against the appellants.

(3.) The appellants then took the dispute before the Subordinate Judge at Kumbakonam. On the substantive issues which arose between the parties, the learned Subordinate Judge made findings against the respondents and in consequence, the decree passed by the trial court was set aside. The learned Subordinate Judge however made it clear that it might be open to the respondents to agitate "against any case of customary rights in the nature of an assessment in their favour, if they can legally do so, without any bar, and if they are so advised." That question was left by him as undecided as it did not arise before him in the present suit.