JUDGMENT
1. This is defendant's second appeal which has been admitted solely for the consideration of the following question which has been formulated by the Hon'ble Judge:
"as to whether on the finding recorded by the lower appellate court that the defendants were having their shops either permanent or moveable and were doing business on the Patri of the road for the last more than twenty years, a decree could be passed merely on the ground that the plaintiff had a right of frontgage of his premises without determining the reasonable extent of the frontage."
2. For the decision of this question facts may be briefly stated thus: A suit was filed by the plaintiff respondent for a mandatory injunction seeking the removal of certain structures said to have been unlawfully constructed by the defendants over a piece of land marked by letters A, B, C, D, E, F, G, H stated to constitute the frontage of the plaintiffs house. The allegation was that the structures had the effect of obstructing the access of plaintiff to a public road which lies in front of the plaintiffs house with a roadside 'Patri' intervening. The plaint case was that the plaintiff had an undoubted right of frontage to enable him to have access to the public road which access stands denied to him in consequence of the tinshed and other structures constructed by the defendant on the 'patri' which indisputably vests in the Public Works Department.
3. The defendants filed separate written statements but the substance of their defence was that the plaintiff had no concern with the land over which the structures complained of are standing. Pleas of limitation and estoppel were also raised by them.
4. On the pleadings of the parties, various issues were framed, two of which need be mentioned as the same have relevance for the decision of the question posed by the learned Judge admitting the appeal. These are issues Nos. 1 and 5 and the same read as follows:
" 1. Whether the defendants have a right to fix tin-shed etc. in the suit land?
5. Whether the disputed constructions are liable to be removed?"
5. Both the courts below have on a careful and exhaustive consideration of the evidence existing on the record came to the concurrent conclusion that the disputed structures lie over the Public Works Department's 'Patri'. It is apparent that the defendant can have no right or claim to make any permanent structure over the land vesting in the P.W.D. There is, therefore, no difficulty in accepting this finding of the courts below on issue No. 1 which is in favour of the plaintiffs and against the defendants.
6. As regards issue No. 5, the lower appellate court has after surveying the relevant judicial pronouncements on the nature and extent of the right claimed by the plaintiff held that as the structures complained of by the plaintiff have the effect of infringing the right of frontage vesting in the plaintiff in the sense that they deprived him of the right of access of the public road, the same are liable to be removed.
7. It is not necessary to refer to all the decisions that have been dealt with by the lower appellate court on the subject beyond mentioning one case reported in 1973 All LJ 271 : (AIR 1973 All 310), Shankar Dayal Agarwala v. State of U. P. in which case an English decision was cited by the learned Judge reported in (1876) 46 LJ Ch 68 Lyon v. Wardens of Fishmongers CHI, wherein Lord Selborne stated the law thus:
"These authorities recognised such a right of immediate access from private property to public highway as a private right distinct from the rights of the owner of that properly to use the highway itself as one of the public."
At another place the learned Judge of this Court made the following significant observations in paragraph 6 of the judgment:
"I am slow to accept the proposition that a public or a local body or other authority can with impunity raise a structure right in front of a person's house which abuts on a public thoroughfare and thereby completely or partially curtail the enjoyment of his basic amenities."
8. Yet another decision noticed by the learned Judge reported in AIR 1945 Pat 200 needs mention. The relevant portion is quoted in paragraph 7 of the judgment in S. D. Agarwala's case (AIR 1973 All 310) (supra) and the same reads as follows:
"The right of access to the highway at all points where a land adjoins the highway belongs not only to the owner of the land but also to the occupiers and ........."
9. The decisions cited above fully support! the view taken by the lower appellate court, namely, that the plaintiff had a right of access to the public road by virtue of the fact that his house abuts on the road 'Patri' adjoining the public road and therefore, any obstruction created by raising structures over that 'Patri' in front of the plaintiffs' house will indisputably have the effect of depriving him of access to the public road.
10. That being the legal position, if we have a look at the map prepared by the Commissioner paper No. 17A-2, it would be apparent that the disputed structures raised by the defendant have clearly infringed the planitiffs' right of access to the public road lying towards the east of the house. The courts below were, therefore, right in directing the removal of the same.
11. Sri S. P. Srivastava, learned counsel for the appellant, however, submitted that the decisions cited by the lower appellate court with regard to the right of owners of the properties abutting on public roads in regard to the right of the frontage can have no application to the present case inasmuch as there is P.W.D. roadside 'PATRI' and consequently it could not be said that the plaintiffs' house abuts on the public road.
12. I am unable to accept the contention. The principle which is applicable to the right of the owners of the properties immediately abutting on public road to have free access to the same and to enjoy right of frontage is equally applicable even to a case where the obstruction is caused to free access to a public road by making constructions over the roadside patri abutting the house of person claiming that right. For, whether the house of the plaintiff immediately abuts the public road or the roadside patri, the effect of such structures will be inevitably to deprive the plaintiff of the right of free access to public road even in such cases. And this access as held in the decisions cited above must be available from every point of the plaintiffs" house facing the public road.
13. The other submission raised by the learned counsel was that the plaintiffs' house is running along the road Patri even beyond the structures complained of by him. It was, therefore, necessary to specify the extent of frontage claimed by the plaintiff. In my opinion, in the present case it is not necessary to go into that larger question in view of the fact that the structures made by the defendant and complained of by the plaintiff have clearly obstructed the right of access vesting in the plaintiff to reach the public road. And as held above, this right is available from every point of the plaintiffs' house. The constructions are, therefore, liable to be removed.
14. In the result, the appeal fails and is dismissed, but I make no order as to costs. The execution of the decree shall, however, remain stayed for one month only.
15. Appeal dismissed.