IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 23RD NOVEMBER 2010 / 2ND AGRAHAYANA 1932 SA.No. 693 of 2001() -------------------- AS.37/2000 of PRL.SUB COURT,THRISSUR OS.172/1992 of MUNSIFF COURT,CHAVAKKAD .................... APPELLANT(S): RESPONDENTS 2 TO 6 IN THE COURT BELOW AND PLAINTIFFS IN THE TRIAL COURT. (R1 IN THE COURT BELOW AND 1ST PLAINTIFF IN THE TRIAL COURT BEING DEAD). ------------------- 1. SARADA, AGED 56 YEARS, W/O KARUMATHIL MADHAVAN, PUNNAYOORKULAM VILLAGE, KADIKKAD AMSOM, CHAVAKKAD TALUK. 2. MANIKANTAN, AGED 34 YEARS, S/O KARUMATHIL MADHAVAN, PUNNAYOORKULAM VILLAGE, KADIKKAD AMSOM, CHAVAKKAD TALUK. 3. SHEENA, AGED 32 YEARS D/O KARUMATHIL MADHAVAN, PUNNAYOORKULAM VILLAGE, KADIKKAD AMSOM, CHAVAKKAD TALUK. 4. VISWANATHAN, AGED 30 YEARS, S/O KARUMATHIL MADHAVAN, PUNNAYOORKULAM VILLAGE, KADIKKAD AMSOM, CHAVAKKAD TALUK. 5. PRADEEP, AGED 28 YEARS, S/O KARUMATHIL MADHAVAN, PUNNAYOORKULAM VILLAGE, KADIKKAD AMSOM, CHAVAKKAD TALUK. BY SRI.G.SREEKUMAR (CHELUR) FOR A1 & A3 SRI.K.RAVI (PARIYARATH) FOR A1 & A3 RESPONDENT(S): ------------------------- 1. RAVEENDRAN, AGED 46 YEARS, S/O CHANAYIL APPUNNI, BUSINESS, P.O PUNNAYOORKULAM, THRISSUR DISTRICT. 2. VIJAYAN, AGED 40 YEARS, S/O CHANAYIL APPUNNI, KADIKKAD DESOM, PUNNYOORKULAM P.O SA.No. 693 of 2001() 2 3. APPUNNI, AGED 68 YEARS, S/O CHANAYIL KUTTAPPAN, KADIKKAD DESOM, PUNNAYOORKULAM P.O 4. AMMU, AGED 56 YEARS, W/O PERINGATTU APPUNNI, KADIKKAD DESOM, PUNNAYOORKULAM P.O 5. LEELA, AGED 31, W/O MOOKOLAPARAMBIL VELAYUDHAN, IRAVOOR VILLAGE AND DESOM, PONNANI TALUK, MALAPPURAM DISTRICT. 6. PRASANNA, AGED 28, D/O PERINGOTTU APPUNNI, PUNNAYURKULAM, THRISSUR DISTRICT. 7. RAJAN, AGED 27 YEARS, S/O PERINGOTTU APPUNNI, BUSINESS, PUNNAYOORKULAM, THRISSUR. 8. ANANTHAN, AGED 24, -DO- -DO- 9. BALAN, AGED 51 YEARS, S/O KARUMATHIL RAMAN, PUNNAYOORKULAM, THRISSUR. ADV. SRI.T.P.M.IBRAHIMKHAN FIR R1 TO R3 SRI.RAJIT FOR R4 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J -------------------------------------- S.A No.693 OF 2001 -------------------------------- Dated this the 23rd day of November 2010 JUDGMENT Appellants are the legal heirs of the plaintiff in O.S No.172/1992 on the file of the Munsiff Court, Chavakkad. Suit was one for declaration of the right of prescriptive easement and for injunction, both mandatory and prohibitory. In the above suit, the plaintiff claimed a right of prescriptive easement over a lane stated as 'idavazhy', which also facilitated flow of water, situate on the western side of his property, described as 'A' schedule. The above 'idavazhy' was described in the suit separately as 'B' schedule. The defendants 1 to 8 obstructed the flow of water through 'B' schedule, which was enjoyed by the plaintiff as a natural advantage of his 'A' schedule property situate on a higher level, putting up rubble construction in 'B' schedule was the grievance of the plaintiff to seek the reliefs canvassed in the suit. His property, 'A' schedule, was stated as situate in survey No.308/1 and 309/1 and the 'idavazhy' described as 'B' schedule, in survey No.302/9. The claim of the plaintiff in the suit was supported by defendants 9 and 10 who are none other than his brothers. Defendants 1 to 3 jointly and defendants 4 to 8 as a different set resisted the suit claims, but raising contentions opposite to one another. Whereas defendants 4 to 8 contended in S.A No.693 OF 2001 - 2 - their written statement that the existing water channel in 'B' schedule was blocked by the plaintiff himself filling up the land, defendants 1 to 3 disputed the very existence of that water channel contending that the plaintiff has no cause of action against them. On the materials placed, the trial court granted a decree in favour of the plaintiff as canvassed in the suit. Feeling aggrieved, the defendants 1 to 3 preferred an appeal impeaching the correctness of the decree granted to the plaintiff. The lower appellate court, after reappreciating the materials tendered, concluded that the plaintiff has not made out any cause of action for seeking the reliefs against the defendants 1 to 3. It was also found, after scrutiny of the title deeds of the respective parties and also the reports and plan obtained through the advocate commissioner, that the water channel claimed by the plaintiff described under 'B' schedule does not pass through any portion of the property belonging to the defendants 1 to 3, which they had obtained under Ext.A6 deed. In that view of the matter, the decree granted by the trial court as against defendants 1 to 3 was found unsustainable by the lower appellate court and it was accordingly vacated. So far as the decree passed against defendants 4 to 8 declaring the right of prescriptive easement over 'B' schedule by the plaintiff and also the prohibitory and S.A No.693 OF 2001 - 3 - mandatory injunctions granted enabling the plaintiff to remove the obstructions over that property blocking the flow of water, there was no further challenge by those defendants and it has become final and conclusive. However, feeling aggrieved by the modification of the decree of the trial court by the lower appellate court to the extent of vacating the decree passed against defendants 1 to 3, the plaintiff has come up with this Second Appeal. 2. I heard the counsel for the appellant/plaintiff and also the respondents/defendants 1 to 3. The learned counsel for the appellant submitted that the Second Appeal had been preferred on account of the apprehension entertained by the appellants that some of the observations made in the impugned judgment rendered by the lower appellate court would cause impediment in executing the decree against the defendants 4 to 8 in removing the obstruction caused over 'B' schedule property. Perusing the judgments rendered by both the courts with reference to the materials tendered in the case and also the submissions made by the counsel on both sides, I find that the apprehension entertained by the appellant as to the likelihood of obstruction in giving effect to the decree in execution from the defendants 4 to 8 on account of some observations made in the judgment of the S.A No.693 OF 2001 - 4 - lower appellate court is meritless. The lower appellate court, it is seen, has meticulously considered with reference to the materials tendered in the case as to whether the plaintiff has made out any cause of action for the relief canvassed against defendants 1 to 3. It has come to a definite conclusion that no portion of 'B' schedule described in the plaint fall within the property covered by Ext.A6 deed over which alone the defendants 1 to 3 have set up their title and right and concluded that claim of prescriptive easement as well as injunction canvassed by the plaintiff against those defendants was not unworthy of any merit. Adverting to the boundary description in the title deeds relating to 'A' schedule and also that of the property of defendants 1 to 3 under Ext.A6, the lower appellate court has reached the conclusion that in respect of 'B' schedule prescribed in the plaint, the plaintiff is entitled to claim a right of prescriptive easement only against the defendants 4 to 8 who have property to the west of 'B' schedule. Further more, it was noticed that the description of 'B' schedule, even on the admitted case of the plaintiff showed that the water channel is situate in survey No. 302/9 and not in any portion of 302/8 which relate to the property enjoyed by the defendants 1 to 3 under Ext.A6 deed. Before institution of the suit, there was a prior proceeding before the Sub Divisional Magistrate at the S.A No.693 OF 2001 - 5 - instance of the plaintiff and his brothers, defendants 9 and 10 in the suit, alleging obstruction over the water channel imputing it as a public nuisance. In that proceeding, admittedly, defendants 1 to 3 in the present suit have not been made parties and it was directed only against defendants 4 to 8. The report and plan collected through the revenue authorities in that proceeding, which are exhibited as Ext.X1 series in the present suit, also disclosed that the water channel presently described as 'B' schedule in the suit is situate to the east of the property of the defendants 4 to 8. That proceeding finally was dropped, since, on the materials placed, it was found to be a dispute of civil nature. The plaintiff was directed to seek redressal before the competent civil forum and accordingly, he filed the present suit. The circumstance surrounding the previous proceedings before the Sub Divisional Magistrate and also the materials gathered thereunder would indicate that plaintiff had no cause of action, as found by the lower appellate court, against defendants 1 to 3. The learned counsel for the defendants 1 to 3 also submitted that they have no interest in 'B' schedule described in the suit, over which the plaintiff had claimed prescriptive easement and also injunction alleging obstruction to the water channel. So much so, whatever decree granted by the court S.A No.693 OF 2001 - 6 - against defendants 4 to 8, in respect of that property, can be executed as provided by law is the further submission of the counsel. However, under the guise of that decree, the interest of the defendants 1 to 3 over the property covered under Ext.A6 deed cannot be trifled with and so much so, they had preferred the appeal before the lower appellate court and got a favourable decree modifying the decree of the trial court. In fact, a scrutiny of the materials tendered in the case would clearly demonstrate that the plaintiff had no cause of action against defendants 1 to 3, whatever be the contentions raised by them to resist the suit claim even disputing the existence of the water channel. The decree passed by the lower appellate court modifying the decree of trial court, by which suit against the defendants 1 to 3 had been dismissed, in the given facts of the case, was proper and correct, and it does not suffer from any infirmity whatsoever. 3. Learned counsel for the appellants requested for passing an order that Ext.C2 will form part of the decree rendered by the trial court to facilitate the implementation of the decree of mandatory injunction, which, if not done, according to the counsel, would give raise to unnecessary complications in the execution proceedings. Whether or not Ext.C2 is stated as part of S.A No.693 OF 2001 - 7 - the decree, it is needless to point out, the implementation of the decree of mandatory injunction has to be given effect to with reference to Ext.C2 plan on the basis of which alone 'B' schedule had been identified and that was upheld by all the courts. Subject to the above observations, the appeal is dismissed directing both sides to suffer their cost. Sd/- S.S.SATHEESACHANDRAN JUDGE //True Copy// P.A to Judge vdv