Judgment:
A.S. Naidu, J.
1. The decision of the Learned Civil Judge (SD), Baripada dated 25th September, 2000 in T.A. No. 1/24 of 1998/96 confirming the decision of the Learned Civil Judge (JD), Baripada dated 12th February, 1996 in T.S. No. 48 of 1988 is assailed in this Second Appeal by Defendant No. 1 in the said suit.
2. One Chandanmal Mahota, the predecessor-in-interest of the Respondents in this Second Appeal, had filed the aforesaid Title Suit before the Civil Judge (JD), Baripada as the sole Plaintiff seeking a decree of mandatory and prohibitory injunction against the Appellant Lalbihari Basa and his three sons, who were Defendants 1 to 4 respectively, for removing the structure raised by them in front of his land and other ancillary reliefs.
The said suit was decreed on contest against the Appellant who was Defendant No. 1 and dismissed against his sons who were Defendants 2 to 4. The Appellant then preferred appeal which was registered as T.A. No. 1/24 of 1998/96 in the Court of the Learned Civil Judge (SD), Baripada. The said appeal having been dismissed, this Second Appeal has been filed
After disposal of the suit by the Trial Court Plaintiff Chandanmal Mahota having expired, his legal heirs were substituted in his place and they contested the Title Appeal. They are also the Respondents in this Second Appeal.
3. The substantial question of law which needs determination in this Second appeal is 'Whether the subsequent purchaser can claim natural rights over a Government property against the prior possessor, the subsequent purchaser having an alternate passage to go to the public road?'
The facts very much necessary for answering that question are as follows:
That the land in dispute, morefully described in Schedule 'A' to the plaint is 'Gochar' in character belonging to the State. The said land abuts the land of the Plaintiff for approaching a public road.
4. Plaintiff averred that he had right to approach the public road from each point of his land. The Defendants having constructed a shop-room over that land, and that too in front of his house, his right had been infringed. To enforce his aforesaid right he filed the Title Suit, seeking a decree of mandatory and prohibitory injunction against the Defendants to demolish the said shop-room and remove the encroachment made by them, as also to restrain them permanently from making further construction.
5. The Appellant-Defendant No. 1 in the written statement filed by him in the suit while admitting the fact that the land adjoining the public road belonged to State Government took a stand that he was in possession of the said land for more than thirty years having constructed a shop-room thereon earlier to Plaintiff purchasing the adjoining land. He stated that his possession being earlier to Plaintiffs purchase/possession of his land, the decree sought in the suit could not be granted. His further stand was that the Plaintiff having an alternate approach to the public road which he could use, the suit was not maintainable. He also took the stand that though the State was a necessary party to the suit, it having not been so impleaded, the suit was liable to be dismissed on that ground alone.
6. On the basis of the pleadings of the parties, the Trial Court framed as many as six issues for its decision. After discussing the evidence and appreciating the submissions of the respective Counsel for the parties, the said Court came to the conclusion that the Defendant No. 1's encroachment of the Government land in front of the land of the Plaintiff seriously affected the latter's right to approach the public road from all points of his land as well as using the frontage of his land. The Trial Court further held that the Plaintiff had a cause to legally enforce his aforesaid right and that the State was not a necessary party and decreed the suit.
Being aggrieved by the decision of the Trial Court, the present Appellant-Defendant No. 1 filed Title Appeal Considering the evidence led By the parties before the Trial Court, both oral and documentary, and the submissions of their respective Counsel, the Appellate Court held that the Trial Court did not commit any error and the impugned Judgment called for no interference. The Appellate Court thus dismissed the Title Appeal
7. Dr. Sujata Das, Learned Counsel appearing for the Appellant, assailed the confirming decision mainly on the ground that the Courts below did not keep in mind the subtle difference that the alleged construction had been raised by Defendant No. 1-Appellant earlier to the Plaintiff purchasing his land. Thus the prayer for a decree for mandatory injunction for demolition of the structure raised by the Defendant No. 1-Appellant on the Government land adjoining the land of the Plaintiff was misconceived. She then submitted, rather forcefully, that as a wide space is very much available to the Plaintiff to approach the public road in front of his land, there was no reason for the Courts below to direct the Appellant to demolish the structure raised by him earlier in point of time. In short, according to Dr. Dash, a construction that existed earlier in point of time cannot be directed to be demolished. Relying upon the decision in the case of Girish Ch. Sahu and Ors. v. Nagendranath Mitra and Ors. reported in 1978(1) CWR 348, it was submitted that the said case dealt with subsequent encroachment and no prior possession and the said difference was not kept in mind by both the Courts below.
8. Learned Counsel appearing for the Respondents (legal representatives of the original Plaintiff), on the other hand took the stand that the Plaintiff for enforcing his right to approach the public road in front of his house from all points of his land had filed the suit seeking a decree of mandatory and prohibitory injunction against the Defendants including the Appellant. It is immaterial whether the encroachment by the Defendants or Defendant No. 1 was earlier to Plaintiffs purchase of the land or not.
9. Perusal of the pleadings and evidence adduced in the suit reveals that there is no dispute that the land encroached by the Defendants, as specified in schedule 'Ka' to the plaint situate on a road side and that belongs to the State. The scenario of facts reveals that Appellant Lalbihari encroached the said land and has raised certain construction thereon. Way back in the year 1987 a case had been initiated against Lalbihari (Appellant) under the Orissa Prevention of Land Encroachment Act, 1972, registered as Encroachment Case No. 27 of 1987, for his alleged unauthorized occupation of Government land. After observing all paraphernalia and giving adequate opportunity to the Appellant, the Tahsildar concerned came to the conclusion that Lalbihari was in unauthorized occupation of the land in question and accordingly passed an order for his eviction therefrom. Lalbihari then preferred an appeal against the order of the Tahsildar, but the same was dismissed.
10. Lalbihari then approached this Court in a writ application, i.e. OJC No. 3604 of 1990. His plea before this Court was identically the same as taken by him in the suit, i.e. he being in possession of the land for more than thirty years, the encroachment case against him was not maintainable. A Division Bench of this Court held the plea of Lalbihari not sustainable and declined to interfere with the order of his eviction.
Learned Counsel for the Respondents submitted that, in fact, the aforesaid order of eviction of Lalbihari from Government land encroached by him had been implemented and the shop-room constructed by him thereon had been demolished. But after a few years he again made such encroachment and raised a pucca house thereon. Having no way out, the Plaintiff had to file the Suit.
11. Before delving into other questions, this Court feels it prudent to first analyse as to what were the rights of the Plaintiff, if any, and the nature of such rights. A reading of the entire plaint gives an impression that the Plaintiff did not seek a decree for his easementary right. His case throughout was that his land being adjacent to a public road he had a natural right to approach the said road from all points of his land and the obstruction in front of his house could not be allowed to stand. This natural right arises due to location of his land.
12. Such question had come up before this Court in Girish Ch. Sahoo case (supra). A Division Bench of this Court relying upon the ratio decided by this Court in an earlier case reported in ILR 1950 Cuttack 595 arrived at the conclusion that the owner of a land adjoining a highway had a right of access to the highway from any part of his premises and such right was 'natural right' arising out of relative location of the plot and that right could not be infringed.
13. The difference between 'natural right' and 'right of easement' was drawn thus:
In Peacock on Easements it was stated -Natural rights are by law annexed to, and are inherent in a land exjure naturo, of natural right, and exist prima facie in all cases as between a landowner and his neighbour, otherwise, as Mr. Goddard says in his work on Easements (7th Edn. p.3) no man would be assured that his land would not at any moment be rendered useless by a neighbour's act otherwise lawful or a neighbour might deprive a landowner of the benefit of certain things which in the course of nature have been provided for the common good of mankind.
The Division Bench in Girish Chandra Sahu case held:
Natural rights are rights in rem that is enforceable against all who may violate them, and they are either affirmative, as rights to do something, or negative, as rights which every owner of immovable property has, that his neighbour shall not disturb the natural conditions under which he enjoys his property.
Natural rights though resembling easements in some respects, are clearly distinguishable from them.
14. The essential distinction between easements and natural rights appears to lie in this that easements are acquired restrictions of the complete rights of property, or, to put it in another way, acquired rights abstracted from the ownership of one man and added to the ownership of another, whereas natural rights are themselves part of the complete rights of ownership, belonging to the ordinary incidents of property and are ipso facto enforceable in law.'
The Madras High Court in the case of Bharathamatha Desiya Sangam, Madhavaram and Anr. v. Roja Sundaram and Ors. AIR 1987 Mad 183, while dealing with right to access to highways held that owner of land abutting road is entitled to access to it from every point of his boundary. He is entitled to enforce his right notwithstanding the fact that there is some space available between the offending constructions. The Court further observed that the offending constructions would constitute a continuing wrong and though suit is filed after construction, it would be maintainable.
15. The Madras High Court in the foregoing decision referred to the case of Municipal Committee, Delhi v. Mohammed Ibrahim AIR 1935 Lah 196, wherein it was laid down that to the owners of houses abutting a public highway, the question of frontage means a great deal and if anything is done by those in whom the highway vests which interferes with the rights of the owners with regard to the highway and which tends to diminish the comforts of the owners, they will undoubtedly have an actionable claim against the encroachers.
In the case of Patna Municipality v. Dwarka Prasad AIR 1939 Pat 683, it was held that the owner of the land abutting a roadway is entitled to access to that roadway at all points on his boundary.
In the case of Manbhum District Board v. Bengal Nagpur Railway Co. AIR 1945 Pat 200, it was observed that the right of access to the highway at all points is available to an owner or occupier and he can sue for removal of obstruction interrupting his right of access.
In the case of Damodara Naidu v. Thirupurasundari Ammal AIR 1972 Mad 386, it was held that where there is a public highway, the owners of land adjoining the highway have a right to go upon the highway from any point of their land and if that right is obstructed by anyone the owner of the land abutting the highway is entitled to maintain an action for the injury, whether the obstruction does or does not constitute a public nuisance.
16. In view of the aforesaid decisions, the irresistible conclusion is that the Plaintiff had a right to approach the public road from every point of his land and he can enforce such right in a Court of law. Availability of any space to the Plaintiff, which could be used as his alternative passage could not denude him of his aforesaid right.
The land on which the Appellant states to have raised some construction admittedly belongs to the State. It is revealed that the Appellant had been evicted from his encroachment of the said land and the construction raised by him thereon had been demolished, sometime after 1990, but subsequently again he encroached upon that land and raised certain construction.
17. According to Dr. Dash, the land encroached by the Appellant belong to State and State having not been made a party to the suit, the suit was not maintainable. But, both the Courts below have held that the State was not a necessary party to the suit.
Perusal of the pleadings reveals that the Plaintiff's allegation was as to obstruction caused for approaching the public road due to construction raised by the Defendants, and not by the State. Since he had no cause of action against the State, it was not necessary for him to implead the State as a party to the suit. This view of mine gets fortified by earlier decisions of this Court in Achut Kalsai and Ors v. Madhu Kalsai 38(1972) CLT 105 and Rajkishore Sahu v. Ajit Kumar Choudhury 87 (1999) CLT 393.
18. The conclusion is thus irresistible that the Plaintiff being the owner of the land adjoining the land that abuts a public road, he had right of access to that public road from every point of the boundary of his land and was entitled to enforce his right notwithstanding availability of any space for his access to that public road. The Appellant having encroached upon a Government land lying to the front of the Plaintiff's land abutting the public road, even after his earlier eviction there-from and demolition of his unauthorized construction thereon, his fresh encroachment was a continuing wrong and the Plaintiff had a right to seek a decree for removal of the construction again raised by the Appellant. The Plaintiff having not sought any decree against the State, the latter was not a necessary party to the suit.
19. (SIC) This Court finds no error in the Judgments of the Courts below and rather finds that the said Courts have rightly appreciated the facts and law. This Court therefore holds that the Plaintiff was justified in seeking a decree of Court for enforcing his right to approach the public road abutting the Government land. The Appellant being a rank trespasser cannot claim any right. It was not for him to contend that the Plaintiff was a subsequent purchaser, even though the 'natural right' claimed by the Plaintiff was also available to his predecessor-in-interest to whose shoes the Plaintiff stepped into.
20. Finding no reason to interfere with the confirming Judgment, this Court dismisses the Second Appeal. Parties to bear their own costs of this appeal.