TANOOR PANCHAYAT Vs. KUNHIAMUTTY

JUDGEMENT

(1.) There is a tarred road 20 feet wide running north and south vested in the Tanoor Panchayat, which is the appellant. To the east of the road is a strip of land, belonging to the Panchayat, which, at the site in dispute, is 20 feet wide on the north and 19 1/2 feet wide on the south and 25 1/2 feet long south to north. For convenience I will call this strip as the road margin. Beyond this road margin, on the east is the suit property owned and occupied by the plaintiff respondent. He started construction of a shop in this property and alleging that the Panchayat was intending to put up a building in the road margin and that the building would interfere with his right of passage through the road margin to the road, the plaintiff brought the suit seeking a permanent injunction against the construction of the building. (Although the plaintiff had alleged that the proposed construction by the Panchayat would interfere with his right of light and air, that ground was rejected by the courts below and is no longer alive in this appeal). While asserting its right to put up any building in the road margin the Panchayat stated that it was proposing to erect only a temporary shed to run a library for the benefit of the local fishermen. The Panchayat also stated that the shed would not cover the entire road margin and that even after its construction, there would be ample space left for access to the road. It was also pointed out that after the institution of the suit, the plaintiff had constructed the contemplated building in the suit property.

(2.) The Munsiff held that the plan Ext. C1 prepared by a commissioner snowed that even if the entire road margin was built upon, the plaintiff's right of way would not be affected as he would have a passage on the northern and southern sides. On this finding the Munsiff dismissed the suit.

(3.) On appeal the Subordinate Judge noted that apart from the right as a member of the public to use the road, the plaintiff, as owner of land abutting on the Toad, had a private right of access to the road from any point on his land and that the shed proposed to be constructed by the Panchayat was an obstruction to that right. He also noted that the shed would shut out the view of the plaintiff's shop and that the Panchayat has lands on the south and to the west of the road and observed that "the proposal to construct a building either temporary or permanent in this particular site cannot be said to be a bona fide one solely with a view to encourage the reading habits of fishermen folk". On these findings the Subordinate Judge allowed the appeal and granted the injunction sought by the plaintiff. The Panchayat appeals.