IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 28TH JULY 2010 / 6TH SRAVANA 1932 RSA.No. 482 of 2010() --------------------- AS.17/2008 of DISTRICT COURT,THODUPUZHA OS.115/2006 of MUNSIFF'S COURT,THODUPUZHA .................... APPELLANT/APPELLANT/PLAINTIFF: -------------------------------------------------------- SHANKARANARAYANAN, S/O.GOVINDAN, RESIDING AT MANAKAL HOUSE, KANJIRAMATTOM KARA, THODUPUZHA EAST, THODUPUZHA VILLAGE, THODUPUZHA TALUK. BY SRI.T.KRISHNA UNNI,SENIOR ADVOCATE, BY ADV. SRI.JAMSHEED HAFIZ, SRI.S.A.SAJU. RESPONDENT(S): RESPONDENTS/DEFENDANTS: ------------------------------------------------------------------------- 1. PURUSHOTHAMAN, KOCHERI PUTHENPURAYIL HOUSE, KANJIRAMATTOM KARA, THODUPUZHA VILLAGE, THODUPUZHA TALUK. 2. INDIRA, W/O.PURUSHOTHAMAN, KOCHERI PUTHENPURAYIL HOUSE, KANJIRAMATTOM KARA, THODUPUZHA VILLAGE, THODUPUZHA TALUK. R1 &R2 BY ADV. SRI.T.J.MICHAEL THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss P.BHAVADASAN, J. ------------------------- R.S.A No.482 of 2010 -------------------------- Dated this the 28th July, 2010 J U D G M E N T The plaintiff, who was non-suited in O.S.115/2006 of the Munsiff's Court, Thodupuzha, is the appellant. 2. Plaintiff claims to be the absolute owner in possession and enjoyment of plaint A schedule property. According to the plaintiff, on the west of plaint A schedule property situated the property of defendants and the same is separated by a kayyala. Plaint A schedule property is fully cultivated with rubber trees. It is claimed that there is a thodu lying east to west through middle portion of plaint A schedule property which is referred to as plaint B schedule property.. On the eastern and western sides of plaint B is the continuation of thodu. It is contended that the thodu was in existence for the past 35 years. The properties of plaintiff and defendants were nilams and they were reclaimed. On 22.3.2006, while the plaintiff was doing agricultural activities in the plaint A schedule property he saw defendants bringing granites to their property and he reliably learnt that in the evening R.S.A No.482 of 2010 2 they are intending to construct a bund in order to close down plaint B schedule property. Hence the suit was laid. 3. Later the suit was amended due to the construction of the kayyala across the B schedule property after the filing of the suit, seeking appropriate reliefs.. 4. Defendants resisted the suit. It was pointed out that two properties originally formed part of a larger extent of single crop wet land. Plaintiff reclaimed his property and planted rubber trees therein. There were two canals flowing from east to west along the southern and northern sides of A schedule property. In order to protect rubber plants from decaying in his property, plaintiff had constructed trenches north to south in the A schedule property. In the B schedule property, trench was also constructed. It is also pointed out that it is only a trench and not a canal. It is also pointed out that the excess water from A schedule was drained to the southern and northern canals. It is contended that water from the said trench never flowed across defendants property. It terminates in the A schedule property itself. Pointing out that there is R.S.A No.482 of 2010 3 no such facility through their property, they prayed for dismissal of the suit. 5. The trial court raised necessary issues for consideration. The evidence consists of the testimony of PW1 and PW2 and Ext A1 was marked from the side of the plaintiff. Defendant had examined DW1 and Exts. B1 and B2 were marked. Exts.C1 to C2(a) are the commission report and plan. . 6. The trial court on evaluation of the evidence in the case found that in plaint B schedule property trenches were constructed and even as per the case of both sides there were two canals flowing along the southern and northern side of their property. The trial court found that natural right of flowing rain water over the land alone is possible and no right of access in flowing water through artificial channel created by the parties. Finding that plaintiff had no manner of right as alleged, the suit was dismissed. 7. Plaintiff carried the matter in appeal as A.S 17/08. The lower appellate court on independent re- R.S.A No.482 of 2010 4 evaluation of the evidence in the case came to the same conclusion as that of the trial court and dismissed the suit. 8. It is pointed out that findings of the court below that the plaintiff is not entitled to any manner of right in limine since the thodu was in existence for more than 35 years and plaintiff had got right of prescription of easement. 9. None of the contentions are sustainable in law. It is settled that natural flow of water along the property of others is recognised. The trial court also found that natural right is not available to the plaintiff for the reason that B schedule is a man made canal. 10. It is also found that the properties were lying at a different levels. So the claim of plaintiff, flow water from the A schedule to the defendants property is not possible, as alleged in the plaint. It is therefore found that plaintiff had no right to claim right of passage of water along the defendants property as the continuation of B schedule. R.S.A No.482 of 2010 5 The courts below have considered the matter in detail and come to the conclusion that plaintiff is not entitled to right to flow water along the property of others. No interference is called for by this Court since it is not shown that findings of the courts below are either perverse or unwarranted by the evidence on record. No substantial questions of law arose for consideration in this appeal. The appeal is without merits and it is accordingly dismissed. There will be no order as to costs. P.BHAVADASAN, JUDGE ma R.S.A No.482 of 2010 6 R.S.A No.482 of 2010 7 R.S.A No.482 of 2010 8