THANGAVEL NADAR Vs. SUDALAIMADA NADAR

JUDGEMENT

(1.) THIS is an appeal by the first defendant in the trial Court, in a suit by two plaintiffs, for a declaration that the property encroached upon by the first defendant was part of a public street vesting in the second defendant panchayat board, and for a mandatory injunction, directing the removal of this obstruction. Very briefly stated, the first defendant (appellant) resisted this action on the following grounds. He claimed that be bad put up the masonry constructions only within the limits of his own property. Alternatively, he claimed that if there was an encroachment, a license would be granted to him by the officers of the panchayat board, and that the new construction did not cause any inconvenience to the public or hindrance to traffic; in this view, the plaintiffs had no right to file the suit.

(2.) BOTH the courts below, found upon the merits, that the property in respect of which the suit was filed was undoubtedly part of the public street and not within the limits of the private property of the appellant. Both the Courts also found that the encroachment was a masonry construction which was liable to be removed, as it narrowed the street, was an unjustified encroachment; and obstructed the use of the street by the public. The Courts further found that there could be no question of a permit granted by the panchayat board, or to be so granted, authorizing blue continuance of such. encroachment. Admittedly, any such permit could be granted only for come temporary construction such as a pandal and not for any permanent masonry construction blocking up a street or part of a street.

(3.) THE learned counsel for the first defendant-appellant is unable to challenge the concur,-rent landings of fact upon which the suit was decreed. Indeed upon this aspect, there would appear be very little scope for any argument on behalf of the appellant. But the ground is pressed before me that the action falls within the scope of section 91 of the Civil Procedure Code, and that the suit is had for lack of sanction in writing by the Advocate General.