T MUTHU Vs. R KAMALAKKANNAN

JUDGEMENT

(1.) THE appellant who is the plaintiff in the Original Suit has filed this second appeal against the judgment passed by the learned II Additional Subordinate Judge, Villupuram in A.S.No.103 of 2001 dated 31.01.2003 reversing the judgment and decree of the learned Additional District Munsif, Villupuram made in O.S.No.183 of 1993 dated 19.06.2001.

(2.) THE background facts which are necessary and absolutely germane for the disposal of this appeal would run thus: a) For convenience, the party shall be referred as arrayed as before the trial court. According to the plaintiff, the suit road belong to the Kandamangalam Panchayat Union and is used by the general public of the Seramangalam Village. It is classified as road in the revenue records and the patta is in the name of the Commissioner of Kandamangalam Panchayat Union. To the north of the Panchayat road the defendant has got his property. On the east of the defendant's property, the plaintiff purchased a property by virtue of a sale deed dated 23.04.1990 and has built a house and he is in possession of the said property. According to the plaintiff from the date of his purchase, he has been using the suit road to reach his property and his predecessor also used the suit road for the said purpose. It is the case of the plaintiff that the defendant tried to encroach upon the plaintiff's property on the north of the suit road and therefore, the plaintiff was forced to put a fence in between the property of the plaintiff and the defendant and also on the eastern side of the suit property leaving a space. According to the plaintiff aggrieved by the said action taken by the plaintiff, the defendant was obstructing him from using the suit road and on 18.02.1993, he started storing dry manures and hayrick in the suit road thus preventing free access of the plaintiff to the suit road. THErefore, the plaintiff has come forward with the suit for permanent injunction restraining the defendant from interfering with the free access of the plaintiff to the suit road. b) THE defendant resisted the suit by filing written statement however, admitted that the suit property is the panchayat road. He has stated that he is owning the property on the north of the suit road and one Radhakrishnan is also owning property on its south. He has denied that the plaintiff and his predecessor was having access to the suit property through the suit road. According to him, there is a north-south road on the west of the plaintiff's house which was used by the defendant for ingress and egress and therefore, he would state that the plaintiff never used the suit road to reach his property. According to him, the plaintiff has no cause of action to the suit. c) THE trial Court on consideration of evidence adduced on both sides found that the suit road being a panchayat road, the defendant has no right to prevent the plaintiff's access to the said road and therefore, granted a decree in favour of the plaintiff. Aggrieved by the said finding of the trial Court, the defendant filed the appeal in A.S.No.103 of 2001.THE Lower Appellate Court reversed the findings of the trial Court holding that since the plaintiff is not using the panchayat road he cannot claim right of access over the suit road and cannot object to the defendant's action in preventing him from using the road. Aggrieved over the said findings of the Lower Appellate Court, the plaintiff has come forward with this appeal. At the time of admission, the following substantial question of law is formulated by this Court:-

(3.) IT is no doubt true that the plaintiff has not left any space as entrance on the western side of his land but it is pertinent to point out that except live plants (Mlh njhlh brofs), no other type of fence was found on the boundary and the same could be inferred from the report and plan filed by the Advocate Commissioner. The Lower Appellate Court though held that the suit road is a panchayat road however, held that the plaintiff cannot claim right of access as he has no entrance in his thottam to reach the road.