Defendants 2 and 3 in O. S. No. 529 of 1973, District Munsiff's Court Thiruvallur, are the appellants in this second appeal. That suit was laid by the first respondent herein against the appellants and respondents 2 and 3 for a declaration of his right of uninterrupted access to Sundara Vinayagar Koil Street, Madhavaram, all along the length of the suit property from West to East measuring 118 links and right of frontage to the suit property and his right of receiving light and air without any interruption by appellants and respondents 2 and 3 and for a mandatory injunction for the removal of the superstructures and fences erected by the appellants and respondents 2 and 3 north of the suit property on a portion of Sundara Vinayakar Koil Street.


2. A reference to the plan of the Commissioner marked as Exhibit C-2 in the proceedings would be helpful in understanding and appreciating the dispute between the parties. The property described as A B C D in Exhibit C-2 belongs to the first respondent and there is no dispute regarding its ownership in the first respondent. To the north of the boundary A D of the property of the first respondent is an open space which belongs to the Government and is vested in the Madhavaram Panchayat. To the north of the open space is a road called Sundara Vinayakar Koil Street. The appellants and respondents 2 and 3 have put up certain constructions in the intervening open space lying between A D and Sundara Vinayakar Koil Street. The constructions so put up by the deceased first defendant in the suit whose legal representatives are respondents 2 and 3, is shown as I J K L in Exhibit C-2. The appellants have put up the constructions shown as M N O P Q R S and S T U V. There is also a well which has been dug up in between I J K L and M N O P Q R and the well belongs to the Panchayat. There is a distance of 5 feet 2 inches between the well and the construction I J K L. The construction M N O P Q R put up by the first appellant is at a distance of 6 feet from the well. Between the construction M N O P Q R and S T U V put up by the appellants, there is a distance of 4 feet 6 inches.


3. According to the cast of the first respondent, he is entitled to have access to Sundara Vinayakar Koil Street, a public street in the north, all along A D line through the road margin to the north of A D and he had been prevented by exercising that right owing to the obstruction caused by the appellants and respondents 2 and 3 and that had also deprived the first respondent of a valuable right of frontage. Besides, the first respondent also claimed that the mill premises put up by him and marked as E F G H in Exhibit C-2 is entitled to receive light and air from the north without any interference by the appellants and respondent's contention was that though he requested the appellants and respondents 2 and 3 to remove the obstruction, it was of no avail and it was under these circumstances that the first respondent instituted the suit praying for the reliefs set out earlier.


4. In the written statement filed by the appellants, they contended that the right of access to Sundara Vinayakar Koil Street on the north claimed by the first respondent is unsustainable and that Sundara Vinayakar Koil Street was only a battai. The construction put up was stated not to deprive the first respondent of his right of access to Sundara Vinayakar Koil Street on the north and to right and air. An objection was also raised that without impleading the Panchayat as well as the District Collector, the suit was not maintainable.


5. Before the trial Court on behalf of the first respondent, Exhibits A-1 to A-5 were filed and P.W. 1 was examined, while, on behalf of the appellants and respondents 2 and 3, Exhibits B-1 to B-20 were marked and dews. 1 and 2 gave evidence. The report of the Commissioner as well as his plan were marked as Exhibits C-1 and C-2. On a consideration of the oral as well as the documentary evidence, the learned District Muncie, Triuvallur, found that as the obstruction complained of by the first respondent was at the instance of the appellants and respondents 2 and 3 the Panchayat Board and the Collector were not necessary parties to the suit, that the suit was maintainable, that access to Sundara Vinayakar Koil Street would be available as a matter of right irrespective of its existence for along time or even recently, but that the availability of intervening space in the construction put up to the north of A D line established that there was no total obstruction by reason of the constructions and, therefore, the first respondent was not entitled to any relief. On these conclusions, the suit was dismissed. Aggrieved by this, the first respondent herein preferred an appeal in A.S. No. 169 of 1978, II Additional Sub Court Chengalpattu. The learned Subordinate Judge took the view that the first respondent was entitled to access to Sundara Vinayakar Koil Street on the north of his property from all points on the A D line and merely because some intervening space had been left in the constructions put up by the appellants and respondents 2 and 3, the first respondent cannot be denied the right of access and, therefore, the constructions put up by the appellants and respondents 2 and 3 causing obstruction to access from all points are liable to be removed. In that view, the learned II Additional Subordinate Judge, Chengalpattu allowed the appeal and granted a decree in favour of the first respondent as prayed for. It is the correctness of this that is questioned in this second appeal.


6. In this second appeal, the appellants have filed C.M.P. No. 1004 of 1986 seeking leave to raise the plea that the suit is barred by Art.113 of the Limitation Act, 1963


7. In so far as the right of the first respondent to have access to Sundara Vinayakar Koil Street on the north from every point along A D line is concerned, there cannot be any serious dispute. Though the appellants put forth the plea that originally what is now called Sundara Vinayakar Koil Street was only a battai and not a street as such, no acceptable evidence bas been made available to establish that previously there was no street at that place and that Sundara Vinayakar Koil Street had been formed only recently. It has, therefore, to be taken that the street had been in existence for a lung number of years. 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 Municipal Committee, Delhi v. Mohammed Ibrahim, Act 1935 Lah 196, 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 occupants of the house, the owners will undoubtedly have an actionable claim against them and in such cases it is unnecessary to prove any special injury. Patna Municipality v. Dwarka Prasad, 1939 AIR(Pat) 683 laid down that the owner of the land abutting a roadway is entitled to access to that roadway at all points on his boundary. The availability of such a right was also extended to the occupier of a land adjoining the highway, in Manbhum District Board v. Bengal Nagpur Railway Co., 1945 AIR(Patna) 200, where it was pointed out that the right of access to the highway at all points where a land adjoins the highway at all points belongs not only to the owner of the land, but also to the occupier and the occupier can sue for removal of obstruction interrupting his right of access to the highway and the fact that the owner or occupier of the adjacent land had fenced it off or raised a wall for his convenience or opened a gateway on the other side cannot affect his right of access to the highway. It would also the relevant in this connection to refer to Mackenzie's Law of Highway. Twenty-first Edition at page 58 where it is stated as follows :



"The owner of land adjoining a highway has a right of access to the highway from any part of his premises. This is so whether he or his predecessors originally dedicated the highway or part of it and whether he is entitled to the whole or some interest in the ground subjacent to the highway or not.....The right of the owner of land adjoining a highway to access to or from the highway from or to any part of his land is a private right, distinct from the right to use the highway as one of the public, and the owner of the land whose access to the highway is obstructed may maintain an action for the injury, whether the obstruction dues or dues not also constitute a public nuisance." *


Relying upon the aforesaid passage, in Damodara Naidu v. Thirupurasundari Ammal, (1972) 2 Mad LJ 4 : 1972 AIR(Mad) 386), Raghavan, J., 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 on 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 dues or dues not constitute a public nuisance. To similar effect is the decision in Ganapathi Mudaliar v. Ponnusami Koundar, (1970) 2 Mad LJ 295 where, it was pointed out that an obstruction caused to the right of access to and from the dwelling house could cause damage directly to the occupiers of houses and a suit could be maintained for the invasion or interference of that right and such a suit will lie without proof of special damage or even without sanction under S.91 Civil P.C. Therefore, there cannot be any doubt or dispute about the right of the first respondent to have access to Sundara Vinayakar Koil Street on the north from every point on A D line.


8. The next question that arises is, whether the availability of space between the offending constructions would justify the refusal of relief to the first respondent as was dune by the trial Court. It has to be remembered that the first respondent is running a flour-mill. It is true that to the west of the first respondent's. flour-milt, there is the Bazar Street. But even so, it is not for the appellants to say that access could be had to the mill of the first respondent through the Bazaar Street, and, therefore access to Sundara Vinayakar Koil Street on the north of A D is not necessary for the first respondent. When the first respondent undoubtedly has a right as established by a long series of decisions referred to earlier, it follows that the first respondent can insist upon his right of access from every point along A D line to Sundara Vinayakar Koil Street on the north. The first, respondent is running a floor-mill and that is not disputed. In connection with the running of his flour-mill, it would be necessary for the first respondent to bring in carts as well as lorries. The available space between the offending constructions certainly is not sufficient to enable the lorries or even the carts to be brought into the flour-mill premises. Therefore, the availability of some space between the offending constructions cannot be put against the first respondent as a ground for declining to grant him the relief especially when he had established his right to that relief. It has also to be remembered that when the first respondent has a right of access as against the owner of the road margin namely, the Panchayat or even the State and that right can be enforced as against either the Panchayat or the State with reference to the constructions which may be put up by them in the road margin as owners by asking for a removal of the offending constructions the appellants cannot be heard to say that despite the obstructions, still access can be had through small intervening narrow strips and, therefore, no case for the removal of the offending constructions is made out. It would be pertinent in this connection to refer to the decision of the Supreme Court in Mangalur Municipality v. Mahadeoji, 1965 AIR(SC) 1147, 1965 (2) SCR 242. While considering the right of the Municipality to erect a statue and also to put up two rooms on a vacant site lying in between two Nalis and a road which ran through a plot belonging to a private owner, the Supreme Court pointed out that the Municipality cannot put up any structures on the public pathway, which are not necessary for the maintenance or user of it as a pathway and that the installation of a statue or the putting up of other constructions cannot be said to be necessary for the maintenance or user of the road as a public highway and such acts' would be unauthorised acts of Municipality. It was also laid down that the owner of the property adjoining the public pathway was entitled to ask for an injunction restraining the Municipality from acting in excess of its rights. Therefore, if the owner, namely, the Panchayat or the State can be prevented from putting up any construction affecting access and can be directed to remove the offending constructions already put up, it follows that the appellants, who have put up the constructions and who are not even the owners of the site over which the structures have been put up, cannot say that there is still some kind of access available despite the offending constructions and, therefore, no case for removal of the superstructures is made out. The lower appellate Court was therefore quite right in directing the removal of the superstructures.


9. That leaves for consideration the plea of limitation. Learned counsel for the appellants, drawing attention to para 8 of the plaint, contended that the offending structures were put up five or six years prior to the filing of the suit on 6-10-1967 and that the suit should have been instituted within three years, when the right to sue accrued as per Art.113 of the Limitation Act, 1963 1957 AIR(SC) 419.


10. No doubt, it is seen from para 8 of the plaint that it has been stated that the offending constructions have been put up five or six years age. It is, however, significant to note that the cause of action for the institution of the suit also included the persisted squatting upon the portions trespassed. This would mean the though the constructions had been put up earlier, the interference with the exercise of the right of access by the first respondent continued from day to day up to the date of the filing of the suit. In such a situation,

S.22 of the Limitation Act, 1963 provides that every moment of the continuance of the wrong would afford a fresh cause of action. The wrongful act is the obstruction and it may be that the construction resulting in the wrongful act had come into existence long before. But by the construction the exercise of the right of access by a person entitled to have such access is interfered with every time he wants to exercise that right by the offending constructions. In a situation similar to the one in this particular case, in K. Kanakamma v. T. Ranga Rao, 1957 AIR(SC) 419, Viswanatha Sastri, J. pointed out that if the obstruction to a right of way is caused by the erection of a permanent wall or structure once for all, it dues not make it any the less a continuing wrong within the meaning of S.23 of the Limitation Act, 1908 (corresponding to S.22 of the Limitation Act, 1963) and that a defendant, who, by his wrongful act, has brought a, state of affairs into existence, the continuance of which every moment is a new tort and who, though in a position to terminate it at his will, causes the estate of affairs to continue, commits a continuing wrong within the meaning of S.23 of the Limitation Act, 1908. On the facts of this case, the principle referred to above would be applicable and there is, therefore no substance in the plea of limitation put forth by the appellants. Consequently, no case for interference with the judgement and decree of the lower appellate Court is made out. The second appeal is therefore, dismissed. There will be, however, no order as to costs. The appellants are given two months time from this day to remove the offending constructions.