IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 17TH MARCH 2008 / 27TH PHALGUNA 1929 RSA.No. 217 of 2008(A) ---------------------- AS.388/2006 of I ADDL.DISTRICT COURT, ERNAKULAM OS.113/2005 of II ADDL.M.C., ERNAKULAM .................... : APPELLANT/RESPONDENT NO.1/DEFENDANT NO.1: ---------------------------------------------------------- SECRETARY, GCDA, KADAVANTHRA, KOCHI-20. BY ADV. SRI.V.J.MATHEW SRI.BIJISH B.TOM SRI.VARUGHESE CHERIAN SRI.VIPIN P.VARGHESE SMT.CEYA ELIZABETH MATHEW RESPONDENTS: APPELLANT & RESPONDENT NO.2/PLNTF.& DEFNDT.NO.2: --------------------------------------------------------------------------------- 1. M.P. MARY, W/O. FRANCIS, THOTTAM HOUSE, NEAR ST.XAVIER'S CHURCH, SOUTH KALOOR, KOCHI. 2. SECRETARY, COCHIN CORPORATION, ERNAKULAM. BY ADV. SMT.P.V.KOCHUTHRESIA(CAVEATOR ) FOR R1 SMT.M.K.PUSHPALATHA,SC,COCHIN CORPORATION THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.NO.553/2008 IN R.S.A.NO.217/2008 17.3.08 DISMISSED Sd/- M.Sasidharan Nambiar Judge /true copy/ M.SASIDHARAN NAMBIAR,J. =========================== R.S.A NO. 217 OF 2008 =========================== Dated this the 17th day of March, 2007 JUDGMENT First defendant in O.S.113/2005 on the file of Munsiff Court, Ernakulam is the appellant. Plaintiff is the first respondent. First respondent instituted the suit for declaration and permanent prohibitory injunction. Plaint schedule property admittedly belongs to first respondent. It is having an extent of 7.915 cents and 189 links in survey No.188/1 of Elamkulam Village. The property of the husband of first respondent is to the south of that property. The case of first respondent was that while she purchased the property in 1987, she also purchased the right over the private way owned by the previous owner which lies to the west of the property and while constructing the compound wall of the plaint schedule property as well as the property which lies to the south belonging to her husband a R.S.A.217/2008 2 portion of the property was left for using it as part of the private way and only recently construction of Kaloor-Kadavanthra road, drains, bunds and culverts bye-roads have been completed and while acquiring the properties for the said project, owners were given compensation but first respondent did not claim any compensation as it was agreed to provide vehicular access from the west to the property of first respondent. It was contended that the eastern bund of the drain is constructed on her said two links property and on 17.2.2004 while constructing the drain in front of plaint A schedule, appellant GCDA sought permission from the plaintiff to demolish her compound wall as it may fall down while doing digging works for the drain, on undertaking to reconstruct the same. The wall was demolished and thereafter it was reconstructed but without proper mixture of mortar and without strengthening the shaken loose basement of the wall. It was also contended that inspite of the request of first respondent to do necessary R.S.A.217/2008 3 works to strengthen the compound wall, it was not done and appellant has left the construction of eastern bund of the said drain in front of plaint A schedule property half way about 3 feet lower than the other three sides forming a pit abutting the western wall of plaint A schedule property so that saline, acid, dirty water in the drain will collect in the place during rains, causing overflowing and blocking of dirty water to the plaint schedule property and causing damages to the property. It is also contended that appellant is liable to complete the eastern bund of the drain by raising its level to the level of other three sides and inspite of assurance appellant has not done it and they have not so far put up the slabs providing direct vehicular access to her residence from the western road. First respondent sought a decree for declaration of right and mandatory injunction. Appellant resisted the suit contending that first respondent has no right over plaint B schedule property and extent of the plaint A schedule R.S.A.217/2008 4 property is not correct and appellant has never assured first respondent to provide direct vehicular access from road to her residential plot and first respondent has not made any complaint regarding the strengthening of the foundation at the time of construction and the eastern compound wall was constructed properly and not with improper mixture of mortar as claimed. It was contended that first respondent has no right or title to the western public way and the basement of the wall of first respondent is easily visible and the same is intact and is supporting the compound wall and the High Flood level is much lower than then basement level of the property of first respondent and as there is a wall on the western side of the plaint A schedule property, there was no direct access from the Western Kaloor- Kadavanthra road and appellant is not liable to provide slabs over the drain as claimed and first respondent is not entitled to the decree sought for. R.S.A.217/2008 5 2. Learned Munsiff on the evidence of PW1, DW1, Exts.A1 to A15, B1, C1 and C1(a) dismissed the suit on the ground that the suit is barred for want of notice as provided under section 544 of Kerala Municipalities Act. First respondent challenged the judgment before District Court in A.S.388/2006. Before the first appellate court, first respondent filed an application for amendment of the plaint deleting the prayer for declaration which was allowed by the first appellate court. First appellate court in view of the deletion of the prayer for declaration found that as per I.A.645/2005 first respondent sought permission to institute the suit as provided sub section (2) of Section 544 of Kerala Municipalities Act and being a suit for injunction permission should have been granted by the trial court and therefore suit is maintainable and not barred under section 544. Learned Additional District Judge on reappreciation of the evidence found that question of title of first respondent to the way is not to be decided in R.S.A.217/2008 6 the suit as the prayer for declaration was deleted. Learned Additional District Judge found that the main grievance of first respondent was that after construction of the canal made by appellant she has no access to plaint A schedule property from the western road and contention of the appellant that the western pathway is a public pathway under the control of second respondent is not established and Ext.C1(a) sketch along with Ext.C1 report and Ext.A10 series of photographs establish that by constructing the canal, access to the plaint A schedule property was closed. It was also found that if only slabs are provided over the canal, first respondent would able to use the said pathway and it was admitted by the appellant that after construction of the canal they provided slabs to the other owners on other portion of the drain and unless the level of the retention wall of the drain is raised to the level of the other three sides, filthy water from the drain would enter into the plaint A schedule property and R.S.A.217/2008 7 therefore granted a decree for mandatory injunction directing appellant to raise the eastern bund of the drain in front of the residence of first respondent till the level of the other three sides. Appellant was directed to provide slabs over the drain to enable respondent to have direct access to her residence plot from the road. It is challenged in the appeal. 3. Learned counsel appearing for appellant was heard. 4. The argument of the learned counsel is that as per Ext.A1 the western boundary of plaint A schedule property is a way and first respondent has no right over that way and appellant is not liable to provide an access to plaint A schedule property when there was a compound wall on the western side of the plaint A schedule property and in such circumstance, direction of first appellate court to provide direct access to plaint A schedule property by putting slabs is not sustainable. It was also argued that first appellate court was not R.S.A.217/2008 8 justified in directing appellant to raise the eastern bund of the drain till the level of the other three sides, as it would cause damage to the other properties where the level of the bund is not similar to the three sides as directed by the first appellate court. Learned counsel appearing for first respondent who appeared by lodging a caveat submitted that in execution of the decree the eastern bund was raised and slabs were also put up and therefore the appeal is only to be dismissed. It was also argued that claiming right over way husband of first respondent has already filed another suit which is pending. 5. On hearing the learned counsel for appellant, I do not find that any substantial question of law is involved in the appeal. 6. The report submitted by the Commissioner along with Ext.C1(a) establish that if the eastern bund of the drain is not raised to the level of the other 3 sides, it would cause much damage to plaint A schedule property as well as the western compound R.S.A.217/2008 9 wall of plaint A schedule property as filthy water would enter into plaint A schedule property during rainy season. Though appellant had originally claimed exclusive right over portion of the western drain contending that along with the plaint A schedule property right over the western way was also purchased under under Ext.A1 before the first appellate court the relief of declaration was given up and first appellate court did not grant any decree upholding the exclusive right of first respondent to the property which lies to the west of plaint A schedule property where the drain is constructed. Therefore grievance of appellant that by the decree appellant was granted an exclusive right over the way is not correct. In the light of the evidence on record, which establish that appellant has provided slabs over the drain on the other portions the mandatory injunction granted by first appellate court to provide slabs over the open drain to enable direct access from plaint A schedule property to the road R.S.A.217/2008 10 is just and proper. The appeal is dismissed. But it is made clear that on the strength of the decree first respondent is not entitled to claim any exclusive right over the drain. She is also not entitled to block the way formed by putting slabs over the drain. She is also not entitled to obstruct others from using the slabs as a way. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006