IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 18TH SEPTEMBER 2009 / 27TH BHADRA 1931 SA.No. 709 of 1995() -------------------- AS.171/1994 of SUB COURT, PALA OS.144/1988 of MUNSIFF COURT, PALA .................... APPELLANT(S)/RESPONDENTS/PLAINTIFFS: -------------- 1. KURUVILLA, S/O.DEVASSIA, MANKOOTTATHIL, KURAVILANGAD KARA, KURAVILANGAD VILLAGE, KOTTAYAM DISTRICT. 2. M.K.SEBASTIAN, S/O.KURUVILLA, MANKOOTTATHIL, KURAVILANGAD KARA, KURAVILANGAD VILLAGE, KOTTAYAM DISTRICT. BY ADV. SRI.T.P.VARGHESE SRI.PHILIP T.VARGHESE RESPONDENT(S)/APPELLANTS/DEFENDANTS: --------------- 1. KUNJAN, S/O.NEELAKANTAN, KANDATHIL HOUSE, KALATHOOR KARA, KURAVILANGAD VILLAGE, KOTTAYAM DISTRICT. 2. BALAN, S/O.KUNJAN, KANDATHIL HOUSE, KALATHOOR KARA, KURAVILANGAD VILLAGE, KOTTAYAM DISTRICT. ADV. SRI.RAJEEV V.KURUP THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP NO.1751/1995 IN SA NO.709/1995 DISMISSED 18.9.2009. Sd/-THOMAS P.JOSEPH, JUDGE //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- S.A.No.709 of 1995 -------------------------------------- Dated this the 18th day of September, 2009. JUDGMENT Appellants sued respondents in the court of learned Munsiff, Pala for a decree of prohibitory injunction to restrain respondents from destroying the boundaries of plaint schedule item No.II situated on the eastern side of the property of the respondents. Learned Munsiff granted a decree in favour of the appellants. In appeal by the respondents, first appellate court reversed the judgment and decree of the trial court and dismissed the suit. Appellants are aggrieved and have come up in Second Appeal. The following substantial question of law is framed: “In the suit for prohibitory injunction simplicitor, when the trial court has found that appellants have proved the existence of 'idathondu' and their right over it by long user and enjoyment, has not the lower appellate court erred in dismissing the suit on the ground that appellants have failed to establish their title over the 'idathondu'? Learned counsel for appellants contends that first appellate court was under a mis-impression that the suit is based on title and possession of disputed item No.II and happened to dismiss the suit. Learned counsel for respondents would contend that no substantial question of law is involved and at any rate, appellants have no cause of action for the suit. SA No.709/1995 2 2. It is not disputed that as per Ext.A1, plaint schedule item No.I which is described as 68 cents in the plaint schedule belong to appellant No.1. Case of appellants is that immediately on west of item No.I is a an 'idathondu' which originates from further south and reaches paddy land on the north. That idathondu is described as plaint schedule item No.II. On the west of item No.II is the property admittedly belonging to the respondents. Appellants alleged that respondents attempted to annex the idathondu portion to their property by demolishing the kayyala on the western side of item No.II which formed eastern boundary of the property belonging to the respondents. It is also the case of appellants that they used to repair the 'eruva kayyala' on the west of item No.I and about 3-4 months' before the suit they had accordingly repaired that 'eruva kayyala'. Further case of appellants is that the natural flow of water from the southern side was through the idathondu towards north into the paddy field and for protection of eruva kayyala on the western side of item No.I the said idathondu is required. The said idathondu is required for the appellants to go to their paddy field. Respondents denied the existence of idathondu as described in plaint schedule item No.II. They also denied that they demolished any portion of idathondu. Advocate commissioner inspected the properties and submitted Ext.C1, report. Advocate commissioner reported that he could notice stones kept towards the western side of item No.II (on the east of the property belonging to the respondents) with mud on one side from which commissioner inferred that SA No.709/1995 3 those stones formed the kayyala on the west of item No.II. Advocate commissioner referred to other indications also to prove existence of idathondu as claimed by appellants. According to the advocate commissioner, there were trees on the eastern side of property admittedly belonging to respondents standing on the same line (on the west of item No.II). Advocate commissioner also stated that idathondu on the further south of the properties of the appellants and respondents is in continuation of the disputed idathondu. Parties adduced oral evidence as well. From the above evidence learned Munsiff found that there was in fact an idathondu in existence and accordingly injunction was granted in favour of appellants. First appellate court observed that though in the body of the plaint appellants have stated that extent of property belonging to them (item Ni,I) is 68 cents and virivu in Ext.A1 or in the plaint schedule there is no mention of 'virivu', the entitlement of appellants is only for 68 cents but there is no case for the appellants that there is any deficit from the said 68 cents for the plaint schedule item No.I. Holding so, suit was dismissed. Learned counsel for appellants argued that it was not based on title or possession of item No.II that appellants claimed relief in the suit. According to the learned counsel appellants claimed relief over disputed idathondu on three grounds: SA No.709/1995 4 i. The idathondu (item No.II) was in existence from time memorial through which rain water was being discharged to the paddy field on the northern side. Water from item No.I was also flowing through the said item No.II. Act of respondents affected the flow of water through item No.II. ii. For protection of eruvu kayyala on the western boundary of item No.I of the plaint schedule, the existence of idathondu is necessary. iii. Idathondu is required for the appellants to go to their paddy field on the north and the act of the respondents caused obstruction to that. 3. Though learned counsel for respondents contended that there is no cause of action for the suit in the sense that there is no real apprehension for the appellants from the side of respondents I am unable to accept that contention. Cause of action means the bundle of materials which gave a right of action. In this case, apart from what is pleaded in the plaint, it is seen from the written statement that respondents have disputed the existence of item No.II. That itself is sufficient to give a cause of action for the appellants. 4. Learned counsel for the appellants placed reliance on the decision of this Court in Pailappan v. Sebastian (1988 (1) KLT 701) to contend that even in the absence of a plea or proof of right of easement, appellants could SA No.709/1995 5 use item No.II for access to the paddy field belonging to them on the north. First appellate court has reversed the decision of the trial court for the reason that appellants did not prove title and possession over item No.II. Contention of the appellants that idathondu was in existence since a long, is necessary for free flow of water from item No.I as well as other properties and, that item No.II is necessary for protection of eruvu kayyala forming the western boundary of item No.I were not considered by the first appellate court. These questions are required to be considered. Above being a matter of disputed fact, this Court cannot decide the same for the first time. The proper course is to direct the first appellate court to decide those matters. As such I am constrained to set side the judgment and decree of the first appellate court and remand the case to that court for consideration. Resultantly, this Second Appeal is allowed in the following lines: i. Judgment and decree of the first appellate court are set aside and the case is remitted to that court for fresh consideration of all issues. ii. First appellate court shall consider the claim of the appellants in the light of the observations which I have made above. SA No.709/1995 6 iii. It is open to the respondents to urge all their contentions before the first appellate court as provided under law. Parties shall appear in the court of learned Sub Judge, Pala on 30.11.2009. Registry shall send the records of the case to that court. No cost. THOMAS P.JOSEPH, Judge. cks SA No.709/1995 7 Thomas P.Joseph, J. S.A.No.709 of 1995 JUDGMENT 18th September, 2009.