JUDGMENT
S.S. Subramani, J.
1. Defendant in O.S.No. 1352 of 1984, on the file of District Munsif’s Court, Poonamallee, is the appellant.
2. Respondent herein filed the suit against the appellant to declare that she is entitled to have free ingress and egrees to the suit property set out in the Schedule to the plaint, from the Railway Station Road on the eastern side from all points of view of her property, and to grant a mandatory injunction thereby directing the appellant to remove the hut put up by him in the Railway Station Road in Survey No. 1017 of Korattur Village, which is an obstruction to her free access to the suit property and also for a permanent injunction restraining the defendant, his men and agents from trespassing into the suit property.
3. In the plaint, plaintiff/respondent has stated that she is the absolute owner of the site measuring 8 1/2 cents in Survey No. 973/2B-1B situated in Korattur Village, Saidapet Taluk, Madras, having purchased the same from one Dr. V. Arumugam on 18.5.1983. It is said that the respondent is residing in Coimbatore and she has given Power of Attorney to her father P.M. Lakshmana Mudaliar to take care of the property. The suit property is bounded on the east by Railway Station Road, which is a public road, and that is the only access to the plaint schedule property from all points of view. As such, the said right of access, i.e., frontage right is a valuable right to the plaintiff and if any one encroaches in the said highway, the plaintiff cannot have access to her property. The defendant is alleged to have put up a hut just in front of the suit property on the eastern side thereby blocking the pathway and access to the suit property from all sides of the suit property. It is said that the defendant has put up the hut in the railway station road poramboke which is an unnecessary hindrance to the plaintiff. Because of that encroachment, plaintiff is not in a position to have free ingress and egress to her property. It is further said that even the Government is taking action to remove the hut which is on the road poramboke and there is every possibility of the defendant shifting his hut to some other place, again, causing obstruction to the plaintiff’s frontage. It is on the above said allegation, respondent has filed the above suit for the reliefs aforementioned.
4. In the written statement, defendant has contended that he is residing in Survey No. 1017/1 of Korattur Village for the last 30 years. It is his case that vacant lands are available around the plaint schedule property and that the plaintiff can have free ingress and egress from the southern side, i.e., from Anjaneyar Koil Street and from eastern side, i.e., from Station Road. According to him, the respondent is making false allegations against the appellant and he further admitted that he is occupying a portion of Survey No. 1017/1 of Korattur Village, which is admittedly a Pattai Poramboke land. He denied that he attempted to trespass or encroach the plaintiff’s property. Since the defendant has been occupying the property for last 30 years, the question of granting a mandatory injunction also may not arise. It is further said that the other relatives of plaintiff are also having property in their possession which includes Pattai poramboke. Asking the defendant to vacate the premise in his possession will put him to great hardship.
5. On the above pleadings, trial court took oral and documentary evidence. It also deputed a Commissioner to inspect the property and prepare a report and plan. On the side of plaintiff, Exs.A-1 and A-2 were marked. They are respectively the sale deed in respect of the suit property and the Power of Attorney in favour of plaintiff’s father. The appellant produced Exs.B-1 to B-3. Exs.C-1 and C-2 are the Commissioner’s Report and Plan, and Ex.C-3 is the notice issued by the Commissioner to the parties. By way of oral evidence, plaintiff got herself examined as P.W.1 and an independent witness was examined as P.W.2. The appellant got himself examined as D.W.1, and an independent witness was also examined as D.W.2. After evaluating the entire evidence, the trial Court came to the conclusion that the plaintiff has other access to the property and the defendant has been occupying the building for the last 30 years. Asking the defendant to remove the building by a mandatory injunction, will amount to causing injustice to him. It further came to the conclusion that the plaintiff’s predecessor was aware of the construction made by the appellant and, therefore, on the basis of the principle of acquiescence also, plaintiff is not entitled to any relief. It was further of the view that the suit filed is barred, and it ought to have been filed under Section 91, C.P.C. Ultimately the suit was dismissed.
6. Aggrieved by the judgment, plaintiff preferred A.S.24 of 1992, on the file of Sub Court, Poonamallee. The lower appellate Court, after reconsidering the entire evidence, set aside the judgment and decree of the trial court. The lower appellate court came to the conclusion that since the plaintiff’s property is facing the Railway Station Road, which is a pattai poramboke, she is entitled to have access through all sides on the eastern side, and if there is any obstruction, the same is liable to be removed. It was found that to a certain extent, the front portion on the eastern side is obstructed on account of the construction of the defendant and, therefore, the defendant’s building is liable to be removed. The lower appellate court also took note of the admission by defendant that the defendant’s building is (sic) on a road poramboke. It further held that the principle of acquiescence or applicability of Section 91, C.P.C, as found by the trial court, is a misunderstanding of the law. The suit was decreed, and a mandatory injunction was granted. The appellant was given two months time to remove the construction. It is against the said judgment, defendant has preferred this second appeal.
7. At the time of admission of the second appeal, the following substantial questions of law were framed for consideration:
(1) Whether the easement claimed by plaintiff over the piece of land possessed by defendant had been lost even before plaintiff purchased the property?
(2) Whether the plaintiff can claim easementary right over the property in the possession of the defendant which his predecessor in title did not enjoy?
(3) Whether the suit is barred by limitation as it has been proved that the defendant has been in possession for over 30 years without any interruption?
8. The appellant has also filed C.M.P.No. 8044 of 1997 for amendment of the written statement, and has also filed C.M.P.Nos. 5189 and 8045 of 1997 to receive additional documents in appeal.
9. I will first consider about the merits of the appeal. 10. On going by the written statement of the appellant, I do not think the appellant has even an arguable case.
11. In the plaint, the suit property belonging to the plaintiff is described as facing Railway Station Road on the east. It is alleged in the plaint that on the eastern side, there is a road poramboke leading to the Railway Station and the road. This fact is not denied in the written statement. But in paragraph 4 of the written statement, the appellant has admitted that he is in occupation of Survey No. 1017/1, which is admittedly a pattai poramboke land. In paragraph 5 again, it is reiterated that he is in possession after constructing a hut, for the last 30 years in the pattai poramboke land and, therefore, the plaintiff cannot seek any relief against him. In paragraph 6 also, the very same contention has been reiterated. A Commissioner who prepared the plan and report has also located the plaint schedule property and the building constructed by the defendant. In the rough sketch filed along with the plaint, the building in the occupation of the defendant is shown as just on the eastern side of the plaintiff’s property covering the entire frontage. It is also seen that the frontage leads to the Railway Station Road and immediately south of the defendant’s house the road continues and it leads to the bus stand at Korattur. The Commissioner’s Report also shows that the building of the defendant is situated on the eastern side more or less on the central portion of the eastern frontage of the plaintiff’s property. It is true that in the plan, it is shown that some more property is left as vacant site in front of the plaintiff’s property. The entire road frontage is not occupied by the defendant’s building. Even though the defendant’s building does not cover the entire road frontage and more than 15 feet or 16 feet is still available as open land, the question is, whether the plaintiff can still insist for removal of the defendant’s building.
12. Since the defendant admits that it is a road poramboke, the claim of the plaintiff is only to be upheld.
13. In the decision reported in Janarthanam K.V.K. v. State of Tamil Nadu (1995) 1 L.W, 451, a learned Judge of this Court considered this question. Learned Judge said that it is an easementary right that is claimed by the plaintiff. After considering the entire case-law on the point, the learned Judge held that ‘the owner of a land adjoining the public street has got a right of access at every point where his land or building adjoins the public street.” In that case, the learned Judge has followed an earlier decisions of this Court reported in Damodara v. Thirupurasundari , Bharathamatha Desiya Sangam v. Raja Sundaram . In , it was held as follows:
The right of owners of land adjoining the highway to go upon the highway from any point on their land is a private right distinct from his right to use the highway as a member of public; if the right to access is obstructed by any one, the owners of the land abutting the highway are entitled to maintain action for the injury, whether the obstruction does or does not constitute a public nuisance. Hence, where the plaintiff’s right to such access is completely obstructed by the defendants by putting up a wall, they are entitled for a mandatory injunction directing the defendants to remove the wall when there is no proof that they had abandoned their right of access to public highway on the side of the wall.
In A.I.R. 1987 Mad. 183 at 185, it has been held thus:
The only question, is, whether the first respondent has a right of access to the street on the north from every point along A, D line free from the obstructions caused by the appellants and respondents 2 and 3. There is no dispute that Sundara Vinayakar Koil Street is a public street. Owners of houses of premises abutting a roadway are entitled to have access to that roadway from all points on the boundary of their land and if any obstruction is caused over the road margin securing such access, the person entitled to have such access can certainly enforce that right.
In (1995) 1 L. W. 451, the learned Judge followed the decision reported in Godavari v. Cannanore Municipality , wherein the construction in question was on the road margin as in this case. The Kerala High Court, in the said decision, held thus:
Where the Municipal Council constructed banks on the road margin, pathway, of a public street and the land adjoining the street was owned by a private party, the construction could not be said to be permissible in that the road margin is a part of the public street and the Municipality has no right to construct buildings on public streets vested in Municipal Council under Section 77 and also because the plaintiff, the owner of land adjoining the public street, has a right of access at every point where her land adjoins the public street.
14. I also had occasion to consider a similar question in the decision reported in The Commissioner, Panruti Municipality, Panruti v. Sri Kannika Parameswari Amman Temple by its Managing Trustee K. Narasimhalu Chettiar . In that case, the definition of the word ‘street’ as given in municipal laws was also taken into consideration which includes adjuncts to the public street. In that case, I followed the decision of the Supreme Court in Himat Lal K. Shah v. Commissioner of Police, Ahmedabad and Anr. and also certain observations from Blackwell’s “Law of Meetings” (9th Edition page 5) and held that a public highway exists for the purpose of free passage on, and for purposes reasonably incidental to this right. Nobody has got a right to assemble on the highway for the purpose of holding a meeting, for, that will amount to an obstruction to the free passage. In view of the said legal position, even though plaintiff might have access to her property from the southern side of the defendant’s building, since she has got a right of free access from all sides of the road, the construction made by the defendant can only be said as unauthorised. He is liable to remove the same. In view of that finding, the substantial question of law really does not arise for consideration. As I said already, plaintiff is not claiming an easementary right, and there cannot be any question of limitation, nor does a question of acquiescence arise. The questions of law are, therefore, found against the appellant.
15. It is at this juncture, we have to consider the scope of the amendment and also the additional documents filed by the appellant. The additional documents have been filed only to suit the new contention raised by the defendant in the amendment application.
16. In the amendment application, what the appellant wants is, to delete all his admissions and to put forth a new case which has not been agitated till now. He wants deletion of the words ‘pattai Poramboke’ wherever it occurs. He has taken a new contention that the road is not a Pattai Poramboke but it is a tank poramboke, and, therefore, plaintiff is not entitled to the declaration sought for.
17. Serious objection was raised by plaintiff to this amendment. Learned counsel submitted that apart from the admission in the written statement, even in the deposition of the defendant, he has admitted that it is a road poramboke, and if the amendment is allowed, it will be a new case that is put forward, and the respondent will be put to great hardship. It was further contended that the amendment could be allowed only to resolve a dispute, and in this case, on the basis of the new contention, a new dispute is now sought to be brought forward. He further said that under Section 100, C.P.C. a second appeal arises on a substantial question of law on the existing facts, and the respondent is also given notice only to answer that substantial question of law which has already been raised by the court on proved facts. Accordingly to me, the argument of learned Counsel for the respondent merits acceptance. As I said earlier, defendant has admitted in his deposition and also in his pledings that it is a road poramboke and he has also occupied only the road poramboke. The plaintiff’s case is also that the defendant has put up his construction on road poramboke. It is on the basis of these pleadings, parties went on trial, and, on the basis of the. evidence available, this Court is asked to decide the questions of law raised for consideration at the time of admission of the Second Appeal. In M/ s. Modi Spinning and Weaving Mills Company Ltd. v. Ladha Ram and Company , their Lordships considered the effect of an admission and how far an amendment which takes away the right of adversary could be allowed. In paragraphs 7 to 10, their Lordships have held thus:
The trial court rejected the application of the defendants for amendment. One of the reasons given by the trial court is that the defendants wanted to resile from admissions made in paragraph 25 of the written statement. The trial court said that the repudiation of the clear admission is motivated to deprive the plaintiff of the valuable right accrued to him and it is against law.” The trial court held the application for amendment to be not bona fide.
The High Court on revision affirmed the judgment of the trial court and said that by means of amendment the defendants wanted to introduce an entirely different case and if such amendments were permitted it would prejudice the other side. The decision of the trial court is correct. The defendants cannot be allowed to change completely the case made in paragraphs 25 and 26 of the written statement and substitute an entirely different and new case.
It is true that inconsistent pleas can be made in pleadings but the effect of substitution of paragraphs 25 and 26 is not making inconsistent and alternative pleadings but it is seeking to displace ‘ the plaintiff completely from the admissions made by the defendants in the written statement. If such amendments are allowed the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendant. The High Court rightly rejected the application for amendment and agreed with the trial court.
[Italics supplied]
18. The said decision was followed by the Delhi High Court in the decision reported in Shri Kishan Lal v. Shri Rajan Chand Khanna A.I.R. 1993 Del. 1. In that case, defendant therein admitted that plaintiff is the landlord, and parties went on trial. Defendant filed another written statement stating that the landlord is some other person. It was held thus:
It is settled principle of law that the amendment seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement should not be allowed. (Para 16) In the instant proceedings for eviction of tenant, the amendment of the written statement was sought alleging that landlord was some other person other than one who initiated eviction proceedings. Amendment could not be allowed since it amounted to withdrawing admission made in the written statement; was sought after inordinate delay of 12 years after the arguments in revision were over; was motivated mala fide was an attempt to prolong and re-open the case and the amendment was not necessary to effectively adjudicate the dispute between the parties. (Paras. 17 to 21)
In that view of the matter, I do not think, defendant’s application for amendment could be allowed at this stage.
19. That apart, for one more reason, the amendment has to be refused.
20. Under Section 100, C.P.C., the jurisdiction of this Court is limited. This Court has to decide on the substantial questions of law formulated at the time of admission of the second appeal, and is on those questions the respondent was given notice to answer. He is expected to answer only those questions of law or the questions that are formulated by this Court at the time of arguments, if the court finds it necessary for framing some more questions of law. The substantial question of law is raised on facts already proved or before court, and not on something which is yet to he pleaded or which was not raised in pleadings.
21. Regarding the jurisdiction under Section 100, C.P.C., there are two recent decisions of the Supreme Court. In Panchugopal Barua v. Umesh Chandra Goswami and Ors. (1997) 2 Supreme 152, their Lordships held thus:
An appellant is not to be allowed to set up a new case in second appeal or raise a new issue (otherwise than a jurisdictional one), not supported by the pleadings or evidence on the record and unless the appeal involves a substantial question of law, a second appeal shall not lie to the High Court under the amended provisions. Both the trial court and the lower appellate court had decided the cases only on questions of fact, on the basis of the pleadings, and the evidence led by the parties before the trial Court. No pure question of law nor even a mixed question of law and fact was urged before the trial court or the First Appellate Court by the respondent. The High Court was, therefore, not justified in entertaining the second appeal on an altogether new point, neither pleaded nor canvassed in the “Subordinate Courts and that too by overlooking the changes brought about in Section 100, C.P.C. by the Amending Act of 1976 without even indicating that a substantial question of law was required to be resolved in the second appeal….
[Italics supplied]
In the last sentence” in paragraph 9 of that judgment, their Lordships said that ‘it is the obligation of the courts of law to further the clear intendment of the legislature and not to frustrate it by ignoring the same.’ The said decision was followed in Kahitish Chandra Purkait v. Santosh Kumar Purkait and Ors. (.1997) 5 Supreme 22. In that case, the High Court permitted a legal plea which was not raised in pleadings. The High Court permitted the new plea to be raised, for there was no specific issue. The High Court was of the view that when the question of maintainability of the suit was argued, there need not be a specific plea, and being a question of law, it could be canvassed before that court for the first time. The said approach was deprecated by the Supreme Court, and it was held that it is not any legal plea that could be raised at the stage of second appeal. It should be a substantial question of law. The reasons for permitting the plea to be raised should also be recorded. Even for raising the same, the opposite party should be given a fair opportunity to meet the new plea. If this is the jurisdiction of the High Court under Section 100, C.P.C., I do not think the appellant could be permitted to amend his written statement by raising a new plea which he had not raised hitherto. If the amendment is allowed, it will give rise to a new question, which this Court is not expected to consider in second appeal. Again, if the defendant is permitted to withdraw his earlier admissions and at the same time if he is allowed to plead a new case, that will put the plaintiff, respondent herein, to a great hardship. In view of the present state of law, the respondent is expected to answer only the substantial question of law already raised and contend that no specific question of law can arise in this case. I further hold that the present applications have been filed without any bona fides. The defendant’s intention is only to drag on the proceedings, which is now more than 13 years old. C.M.P.Nos. 5189 and 8045 of 1997 are only to support the new case that is sought to be put forward. The appellant wants to let in additional evidence in this second Appeal. Under Section 100, C.P.C., this Court is not concerned with sufficiency of the evidence and, therefore, the scope of receiving additional evidence is also not there.
22. Learned counsel for the appellant contended that subsequent to the institution of the suit, government has assigned the land in favour of the defendant as per order of assignment dated 13.2.1992. According to him, in view of the subsequent event, he is entitled. to hold on to the property as owner. I do not think this new Contention can also prevail. If the law prohibits the Government and the local authorities from causing obstruction to the Highway or to the public street, the assignment of that land to a private individual also has to fail for the same reason. The interest of the general public cannot be taken away by issuing an assignment order. If the obstruction which was in existence still continues, the plaintiff can ignore the assignment and remove the obstruction caused either individually or by seeking the assistance of the Local Authority which is in the position of a Trustee so far as the general public is concerned. Any order of assignment will be in derogation of that right and the same cannot be given effect to, when it effects the right of a citizen. When the plaintiff has a right of access from any portion of the highway or public street, the Government is also bound to preserve that right as a custodian of Government lands, especially public streets.
23. In the result, the second appeal and the C.M.Ps. are dismissed. However, there will be no order as to costs. C.M.P.5349 of 1996 is dismissed consequently.