IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 1ST FEBRUARY 2008 / 12TH MAGHA 1929 RSA.No. 850 of 2006() --------------------- AS.297/2003 of ADDL.DISTRICT COURT,KOTTAYAM OS.192/2001 of ADDL.M.C.,KOTTAYAM .................... APPELLANT : APPELLANT/PLAINTIFF ------------------------------------ P.S.GOPALAKRISHNAN NAIR, PONGANAKUNNEL, ANICKADU VILLAGE, ANICKADU KARA, KOTTAYAM TALUK. BY ADV. SRI.M.NARENDRA KUMAR SMT.LEENA KRISHNAN RESPONDENTS:RESPONDENTS/ DEFENDANTS --------------------------------------------------- 1. P.N.RADHAMANI AMMA, PERUMPRAL HOUSE, VAZHOOR, NOW RESIDING AT PUTHEN PURACKAL, ERAVINELLOOR P.O., KOTTAYAM TALUK. 2. SASIDHARAN NAIR, PUTHENPURACKAL, ERAVINELLOOR P.O., KOTTAYAM. 3. SARADAMMA, PURATHITTAYIL HOUSE, KIZHAKKE ADUKANIYIL, ANICKADU KARA, KOTTAYAM. BY ADV. SRI.RAJEEV.P.NAIR SRI.REJI GEORGE SRI.PAULCY KURIAN FOR R1 & R2 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. NO. 850 OF 2006 =========================== Dated this the 1st day of February, 2008 JUDGMENT Plaintiff in O.S.192/2001 on the file of Munsiff Court, Kottayam is the appellant. Defendants are respondents. Appellant instituted the suit seeking a decree for permanent prohibitory injunction as well as mandatory injunction. Item No.1 of the plaint A schedule property belongs to appellant. Item No.2 of the plaint schedule property which lies to the west of item No.1 lying in a L shape, is claimed to be thodu (channel) through which water flows from the upper southern area towards the north lower area where a thodu flows east west is situated. Appellant contended that water which gets collected in item No.1 used to flow through item No.2 for the last more than 100 years openly, peacefully and uninterruptedly and he has prescribed a right of easement of prescription to discharge flow of water R.S.A.850/2006 2 from item No.1 of the plaint schedule property to item No.2 of the plaint schedule property. It was contended that respondents attempted to trespass into item No.2 of the plaint schedule properties and filled up a portion of item No.2 on the southern portion and thereby free flow of water through item No.2 is obstructed. It was contended that respondents have no right to cause any obstruction and appellant is entitled to a decree for mandatory injunction for removal of the obstruction caused. Appellant contended that the water which collects on the south of the PWD road culvert flows through culvert to item No.2 of the plaint schedule property and reaches the northern thodu and by the obstruction caused water collects in item No.1 and causes damages to item No.1 of the plaint schedule property and appellant is entitled to a decree for a mandatory and permanent prohibitory injunction. 2. Respondents resisted the suit contending that item No.2 of the plaint schedule property is a R.S.A.850/2006 3 pathway and appellant has no right over the said pathway. It was also contended that water which gets collected in the southrn upper lands flows through the culvert on the western side of the pathway and water flows at random to the culvert and after passing the culvert water again flows at random through the property of one Mariamma and there is flow of water only during rainy season and there is no defined channel or stream for such flow of water and appellant has no right to discharge water through item No.2 of the plaint schedule property. He has not prescribed any right of easement of prescription and the suit is only to be dismissed. 3. Learned Munsiff on the evidence of Pws.1 to 5, DW1 and Exts.A1 to A6, B1 and B2 and C1 and C2 dismissed the suit holding that appellant did not establish a right of easement of prescription for flow of water from item No.1 through item No.2 of the plaint schedule property. Learned Munsiff also found that item No.2 which is a pathway as R.S.A.850/2006 4 claimed by respondents and is not a channel for flow of water as claimed by appellant and therefore dismissed the suit. Appellant challenged the judgment before District Court, Kottayam in A.S.297/2003. Learned Additional District Judge on reappreciation of evidence confirming the findings of learned Munsiff and dismissed the appeal. It is challenged in the appeal. 4. Learned counsel appearing for appellant was heard. 5. The argument of learned counsel is that it is addmitted case that plaint schedule property as well as the property which lies to its west and south are slanding from south to north and the southern side is on a higher level and the northern side is on a lower level. It was argued that rain water which collects on the south of the PWD road flows through the culvert and thereafter enters item No.2 of the plaint schedule property and flows towards the north and reaches northern thodu and by filling up a portion of item No.2 with R.S.A.850/2006 5 mud, free flow of water is obstructed and as a result water which flows from the south of the PWD road flows through the culvert enters item No.1 of the plaint schedule property and cause damages and therefore courts below should have granted a decree as sought for. It was also argued that even if appellant did not succeed in establishing a right of easement by prescription for flow of water from item No.1 of the plaint schedule property through item No.2 of the plaint schedule property, respondents have no right to cause any obstruction to the flow of water through item No.2 or to cause damages to item No.1 of the plaint schedule property by obstruction the flow of water and therefore a decree should have been granted. It was then argued that first appellate court has found that evidence show that water is flowing through item No.2 of the plaint schedule property and decree was not granted only for the reason that appellant did not establish that obstruction is caused to the flow of water and Ext.C1 report R.S.A.850/2006 6 with the evidence of Pws. 1 to 5 establish that free flow of water through item No.2 is obstructed by filling up the southern portion of item No.2 of the property and therefore a decree for injunction should have been granted. 6. On hearing the learned counsel, I do not find that any substantial question of law is involved in the appeal. 7. It is admitted case that properties are slanding towards the north. The southern portion is on a higher level and the northern portion is on a lower level. Kayyoori- Anickadu Church PWD road runs east west through the south of item No.1 of the plaint schedule property. Item No.2 lies to the immediate west of item No.1 of the plaint schedule property. It is admittedly on a lower level than item No.1. There is a culvert in the PWD road towards the west of item No.1 of the plaint schedule property. The case of appellant is that water which flows from the southern upper land through the culvert passes through item No.2 R.S.A.850/2006 7 and reaches the northern thodu and because of the obstruction caused water is not flowing through item No.2 and it enters item No.1 and causes damages and respondents have no right to cause any obstruction. Learned counsel argued that courts below in such circumstances should have been gratned a decree. 8. On going through the judgments of the courts below as well as the pleadings, it is clear that the main right claimed by appellant in the plaint was a right of easement of prescription contending that for the last 100 years water which collects in item No.1 used to flow through item No.2 openly, peacefully and uninterruptedly and therefore he has a right of easement by prescription to flow water from item No.1 to item No.2 of the plaint schedule property. Courts below on appreciation of evidence found that appellant did not establish such a right of easement of prescription. The argument of the learned counsel is not based on the right of easement of R.S.A.850/2006 8 prescription but on the basis that respondents have no right to cause any obstruction to the free flow of water which flows from the southern land and enters through the culvert and reaches item No.2 of the plaint schedule property. On going through the plaint, it is clear that there is no specific pleading that item No.2 of the plaint schedule property is continuation of the culvert so as to form a continuation of flow of water from the southern land towards the northern thodu. There is no connecting channel or thodu from the culvert through the property of Mariamma, connecting the culvert to item No.2 of the plaint schedule property. It is admitted case that the property which lies immediately to the west of the culvert belongs to Mariamma. What was contended by respondents is that water which comes from the southern land in random flows through the culvert and thereafter it further flows in random through the property of Mariamma. When it is admitted case that the property of Mariamma as well as item No.1 R.S.A.850/2006 9 of the plaint schedule property and the property of respondents is slanding towards the north and there is a thodu on the north and there is no defined channel for flow of water which comes through the culvert, because of the gravitation force, water must flow through the abutting land on the north and will reach the northern thodu. Neither Mariamma nor respondents nor appellant can claim that water shall not flow through their property as it is a natural right as provided under section 7 of Easement Act. In the absence of specific case that there is a defined channel from the culvert, through the property of Mariamma, which connects the culvert to item No.2 of the plaint schedule property, it is not possible to accept the argument of the learned counsel that item No.2 of the plaint schedule property is the channel or thodu which is to collect the water which flows through the culvert. It is admitted case that item No.1 of the property is lying on a higher level than item No.2 of the property. So long as there R.S.A.850/2006 10 is no defined channel from the northern culvert, the water which flows from the southern culvert will flow through the property of Mariamma. There is no case that flow of water through Mariamma's property is not possible because of any obstruction on the west or north. In such circumstance, I do not find any reason to interfere with the findings of the courts below that appellant is entitled to either of a decree for mandatory injunction or permanent prohibitory injunction. Appeal is dismissed in limine. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006