IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 9TH FEBRUARY 2011 / 20TH MAGHA 1932 SA.No. 180 of 1999() ---------------------------- AS.239/1996 of SUB COURT, KASARAGOD OS.252/1988 of ADDL.MUNSIFF COURT, KASARAGOD .................... APPELLANT(S): RESPONDENT/DEFENDANT -------------------------------------------------------------- ABDUL RAHIMAN, S/O.ABDULLA HAJI, RESIDING AT MAYYALA IN DELAMPADY VILLAGE AND POST, KASARAGOD TALUK. BY ADV. SRI.K.G.GOURI SANKAR RAI RESPONDENT(S): APPELLANTS/PLAINTIFFS AND LEGAL REPRESENTATIVES OF --------------------------- 2ND PLAINTIFF. 1. MOHAMMAD BEARY 2. ABDUL KHADER 3. MOOSA BEARY 4. ABDUL RAHIMAN 5. NABISSA 6. BEEPATHUMMA 7. MOHAMMED 8. HAMEED 9. MAJEED 10. AISABI NOS. 1 TO 4 ARE THE CHILDREN OF ANDU BEARY AND NO.5 IN THE WIFE OF NO.2: ABDULKHADER, NO.6 IS THE W/O. DECEASED ALI BEARY AND NO.7 TO 10 ARE THE CHILDREN OF ALI BEARY. ALL ARE RESIDING AT KARUMAJAL IN DELAMPADY VILLAGE AND POST, KASARAGOD TALUK. ADV. SRI.P.K.MUHAMMED THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 31/01/2011, THE COURT ON 09/02/2011 DELIVERED THE FOLLOWING: tss ORDER ON CMP. NO.514/1999 IN SA. NO.180/1999 DISMISSED 31/01/2011 SD/- P.BHAVADASAN, JUDGE TRUE COPY P.A. TO JUDGE tss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 180 of 1999 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of February, 2011. JUDGMENT The defendant, who suffered a decree at the hands of the lower appellate court, has come up in appeal. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The plaintiffs claim to have owned and possessed property in Resurvey Nos. 171/5, 171/4, 171/1B and 171/1A. Some of them are two crop paddy fields. In the sketch produced along with the plan C is shown as the thodu and it carries water throughout the year. According to the plaintiffs, for the purpose of irrigating their lands, they as well as their predecessors in interest had been putting up katta at a place marked K in the sketch produced. The bund will be put up at the beginning of the rainy season and it is a temporary affair. After the bund is put up, the water is led to the S.A.180/1999. 2 paddy fields through the channel shown as V in the sketch. It is pointed out that this is absolutely necessary for getting water for the proper irrigation of the fields of the plaintiffs. On 21.6.1988, when the plaintiffs attempted to put up the bund as usual, the defendant obstructed and threatened that he would destroy the bund. The plaintiffs contended that If that is allowed, it will cause irreparable injury to the plaintiffs. Apprehending further interference from the defendant, the suit was laid. 3. In the written statement filed by the defendant, it was pointed out that the plaintiffs have no right as claimed by them and their paddy fields are not double crop paddy fields. Water is not available throughout the year in the thodu shown as C. The channel shown as V is only a rain water channel. Never before any bund was put up along the C thodu and the attempt of the plaintiffs is to acquire a new right. By putting up a bund in the place shown by the plaintiffs, the property of the defendant will be inundated S.A.180/1999. 3 during rainy season. On the basis of these contentions, he prayed for a dismissal of the suit. 4. Based on the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of P.Ws.1 and 2 and documents marked as Exts. A1 and A2 from the side of the plaintiffs. The defendant had examined D.W.1. Exts.C1 to C3 are the reports and plan filed by the commissioner. The trial court was inclined to accept that the paddy fields of the plaintiffs were only single crop lands and the claim made by them that they had right to take water through the channel shown as V is not established. It placed considerable reliance on the commission report also. Ultimately the trial court came to the conclusion that the plaintiffs have not succeeded in establishing that there is any need to put up a bund and dismissed the suit. 5. The plaintiffs carried the matter in appeal as A.S.239 of 1996 before the Sub Court, Kasaragod. The lower appellate court took a different view of the matter and came S.A.180/1999. 4 to the conclusion that no particular harm is caused by putting up a bund. Putting up of the bund is necessary for the proper irrigation of the properties of the plaintiffs. No particular harm is caused by the plaintiffs doing so and there is no reason why the right should be denied to the plaintiffs. Accordingly, the judgment and decree of the trial court is reversed and granted a decree in favour of the plaintiffs. Thus the defendant has come up in Second Appeal. 6. Notice has been issued on the following questions of law: “A. In the absence of any mention of any kind of right to water in Ext.A1, can the case of the plaintiffs that they have acquired right claimed in the suit under Ext.A1 be sustained? If not, has not the lower appellate court committed an error of law in granting a decree to the plaintiffs? B. When P.W.1 admits that the Katta K put up across thodu C will be washed away by rain water, is it possible to believe that the plaintiffs have been putting up katta K during rainy season? C. Is not the decision of the lower appellate court vitiated for want of legal evidence of any S.A.180/1999. 5 user of the alleged water for more than the statutory period? D. Has not the lower appellate court committed an error of law in holding that the paddy fields of the plaintiffs are 2 crop paddy fields, without any evidence to substantiate it? E. In the facts and circumstances of the case, is the decision of the lower appellate court sustainable?” 7. Learned counsel appearing for the appellant pointed out that the lower appellate court was not justified in reversing the well considered judgment of the trial court, which has gone into the issue in depth. The plaintiffs have not been able to establish their right to put up the bund as claimed by them and the lower appellate court was incorrect in holding that the paddy fields of the plaintiffs were two crop lands. The property owned by the plaintiffs, according to the learned counsel, have direct access to the thodu shown as C in the sketch prepared by the commissioner and it is not necessary for them to create artificial channel at all. S.A.180/1999. 6 The right now claimed is a mischievous one only to harm the defendant and persons similarly situated having properties on either side of the channel shown as C. The plaintiffs have not been able to establish any particular manner of right which enable them to put up the bund. Therefore, it is contended that the judgment and decree of the lower appellate court had to be set aside. 8. Learned counsel appearing for the respondents on the other hand pointed out that their lands, which situate on the northern side of the property owned by the defendant, is at a higher level and therefore it became necessary to take water through separate channel to his property. He contended that putting up of the bund is only a temporary act and it was not a permanent structure as contended by the defendant. No harm whatsoever is caused to the property of the defendant by the putting up of a bund so as to regulate the flow of water to enable them to carry on cultivation in his property. The lower appellate S.A.180/1999. 7 court was therefore justified in granting a decree in their favour. 9. It is not in dispute that going by the commission sketch there is a thodu shown as C, which runs by the side of the property of the defendant as well as the plaintiffs. The case of the plaintiffs is that it is difficult for them to take water directly from the thodu, because their properties situate at a higher level. They therefore contended that it is necessary to put up a bund lower down the thodu so as to divert flow of water through the channel shown as V in order to enable the plaintiffs to get adequate water to cultivate their lands. It may be noticed here that flow of water is from south to north and the properties of the plaintiffs are situate on the northern side. The commissioner during inspection has found remnents of bund and the lower appellate court has found that the bund must have been put up by the plaintiffs for their irrigation purpose. The question as to whether the paddy fields are single crop lands or double crop lands may not be of much S.A.180/1999. 8 significance. The main apprehension of the defendant was that by permitting the plaintiffs to put up a permanent bund, it is likely that his fields will be inundated and remain useless. 10. First of all, the plaintiffs have assured that they do not intend to put up a permanent bund. The bund they put up is a temporary one to regulate flow of water during rainy season and therefore it could not be said that there is any threat to the properties of the defendant. Moreover, the suit was instituted in the year 1988 and it was disposed of in the year 1996. During the eight years on none of the occasions when the temporary bund was put up by the plaintiffs, the defendant was able to show that his fields had been inundated. If he had such a case, he would have taken out a commission and established the same. Strictly speaking the plaintiff may not have any particular right as such. But he has pointed out that it has become necessary to create an artificial water channel so as to enable him to get required water for his irrigation purpose. S.A.180/1999. 9 From the evidence on record, it is clear that this has been done without causing harm to any agriculturists, who own lands on either side of thodu. The commission report shows that remnants of bund were seen. He makes mention of land slides also on some portions of the thodu. Whatever that be, there is nothing to indicate that by the temporary construction of a bund along the thodu shown as C, any particular harm or injury is caused to the defendant as apprehended by him. The plaintiffs have clearly stated that they intend to put up only a temporary bund during the rainy season to regulate flow of water so as to enable them to get required quantity of water to irrigate their fields. They have made it clear that they intend to put up only a temporary bund. If that be so, the lower appellate court was justified in holding in favour of the plaintiffs. Findings of the lower appellate court are essentially based on the evidence on record and it cannot be said that the findings are either perverse or unwarranted. No question of law, much less any substantial question of S.A.180/1999. 10 laws arises for consideration in this Second Appeal. This Second Appeal is without merits and accordingly it is dismissed. However there will be no order as to costs. P. BHAVADASAN, JUDGE sb.