IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 20TH OCTOBER 2009 / 28TH ASWINA 1931 SA.No. 849 of 1996() -------------------- AS.38/1994 of SUB COURT, KASARAGOD OS.303/1988 of PRL.MUNSIFF, KASARAGOD .................... APPELLANT(S)/RESPONDENTS/DEFENDANTS 2 TO 4: -------------- 1. CLIFFORD, S/O.LATE LAURANCE D'SOUZA RESIDING AT CHAKKARA BAZAR KASARAGOD KASBA VILLAGE KASARAGOD TALUK AND DISTRICT 2. RENOLD, S/O.LATE LAURANCE D'SOUZA -DO- 3. DONALD, S/O.LATE LAURANCE D'SOUZA -DO- BY ADV. SRI.K.SHRIHARI RAO SRI.K.R.RAGHUNATH RESPONDENT(S)/APPELLANT/1ST RESPONDENT/PLANTIFF/1ST DEFENDANT: --------------- 1. ANANTHA BHAKTHA, S/O.VASUDEVA BHAKTHA MERCHANT, RESIDING AT D.NO.11/684 COURT ROAD, KASARAGOD TOWN KASARAGOD KASBA VILLAGE KASARAGOD TALUK AND DISTRICT 2. STANLY D'SOUZA S/O.LATE LAURANCE RESIDING AT CHAKKARA BAZAR KASARAGOD KASBA VILLAGE KASARAGOD TALUK AND DISTRICT BY ADV.M/S.M C SEN, PARVATHI MENON,M.P.SREEKRISHNAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 20/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SA 849/96 CMP NO.1818 OF 1996 IN SA NO.849 OF 1996 DISMISSED 20.10.2009 SD/-P.BHAVADASAN, JUDGE TRUE COPY PS TO JUDGE P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 849 of 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of October, 2009. JUDGMENT This is a typical dispute which has been going on for more than two decades on an issue, which should have been settled in conciliation or mediation. 2. The defendants in O.S. 303 of 1988 are the appellants. The parties and facts are herein after referred to as they were available before the trial court. 3. The facts absolutely essential for the disposal of this Second Appeal alone are being referred to. 4. The plaintiff owned plaint A schedule property. Plaint B schedule property is owned by the defendants. There are several issues initially between the parties, which were thrown up for consideration, but as far as the Second Appeal is concerned, it is confined to the running of a piggery in plaint B schedule property. S.A.849/1996. 2 5. The complaint of the plaintiff was that as a result of the piggery that was being run by the defendants in plaint B schedule property, the sullage water from the piggery was being flown into his property causing considerable nuisance to him. The local authority had issued notice to the defendants to wind up the running of the piggery. But the local authority did not follow it up. The result was that the defendants began to rear more pigs. The allegation of the plaintiff is that the piggery was causing considerable nuisance to him. Among the various other reliefs, he claimed a relief against the running of the piggery also. 6. The first defendant remained ex-parte. The other defendants contested the suit. As far as the piggery was concerned, they maintained that no nuisance was caused to the plaintiff and his grievance was imaginary. 7. The trial court raised several issues for consideration. The evidence consists of the testimony of P.W.1 and Exts. A1 to A0 on the side of the plaintiff. The defendants had S.A.849/1996. 3 examined himself as D.W.1. Exts.C1 and C2 are the plan and report furnished by the Commissioner. The trial court on the basis of the Commission report and evidence before it came to the conclusion that as a result of the draining of sullage water to the plaint A schedule property, considerable nuisance was being caused to the plaintiff. However, the court did not held that running of the piggery as such was offensive and there were no reasons to prevent the defendants from running the piggery in their property. Consequently relief was confined to the draining of water into plaint A schedule property. 8. The plaintiff took up the matter in appeal. The first appellate court took the view that the running of piggery itself is offensive because it was in violation of the provisions of the local authorities Act. The first appellate court took the view that licence is required to run a piggery and the defendants did not have the same. Therefore, relief was granted to the plaintiff restraining the defendants from running the piggery as such. Aggrieved by the S.A.849/1996. 4 said judgment and decree, the defendants have come up in appeal. 9. At the time of admission of this Second Appeal, notice was issued on the following substantial questions of law: “i) Whether the lower appellate court is right in the finding that the appellants are requested to take licence under Section 281 of the Kerala Municipalities Act from the Kasaragod Municipality for maintaining pigs in their property? ii) Whether the lower appellate court is right in setting aside the well reasoned judgment of the trial court especially at para 19 of its judgment? iii) Whether the lower appellate court is right in allowing the suit on the wrong premises and probabilities? iv) Whether the appellate court is right in the finding by misinterpreting the oral evidence of D.W.1?” 10. The issue that arises for consideration in this Second Appeal is whether the finding of the First Appellate Court that licence is required for running a piggery in the property is justified. S.A.849/1996. 5 11. Learned counsel appearing for the appellants pointed out that the licence is needed to carry on a piggery only if it is run on a business basis and not as if it is for personal use. It is also stressed that in fact the Muncipality had initiated criminal proceedings against the appellants and that ended in acquittal. Learned counsel pointed out that there may be some justification in granting injunction against draining out sullage water but there is absolutely no legal basis for restraining the defendants from running the piggery. 12. On going through the records and the relevant provision applicable in this case, it is difficult to accept the plea of the appellants. The lower appellate court has categorically found that the claim of the defendants that piggery was being run for personal use cannot be accepted. The lower appellate court has given cogent reasons for the same. There is no dispute regarding the fact that if piggery was being run for personal use, a licence is infact not needed. Further, the order of the lower appellate court S.A.849/1996. 6 has been in force from 1996 onwards. That means an order restraining the defendants from running the piggery has been in force for more than 13 years. That shows the interest of the appellants. Whatever that be, the first appellate court has considered the matter in considerable detail and I find no grounds to take a different view. The result is that, this Second Appeal is without merits and it is accordingly dismissed with costs. P. BHAVADASAN, JUDGE sb. S.A.849/1996. 7 P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 849 of 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 20.10.2009.