IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 11TH OCTOBER 2011 / 19TH ASWINA 1933 RSA.No. 552 of 2005() --------------------- AS.246/2000 of I ADDL. DISTRICT COURT, PALAKKAD OS.204/1996 of ADDL.MUNSIFF COURT, PALAKKAD .................... APPELLANTS/APPELLANTS/PLAINTIFFS: ------------------------------------------------------------ 1. K.S. NARAYANAN, S/O. SAHASRANAMA IYER DY.FINANCIAL CONTROLLER, T.N.E.B., COMBATORE, NOW RESIDING AT KODUNTHIRAPULI GRAMAM, AMSOM & DESOM, PALAKKAD DISTRICT. 2. SMT.K.N. LAKSHMI AMMAL, SWASSTHAM, W/O. LATE SAHASRANAMA IYER, 11/218, KDUNTHIRAPULLI GRAMAM, AMSOM & DESOM, PALAKKAD TALUK. 3. K.S. ANANTHALAKSHMI, W/O. K.S. SUBRAMANIAN (LATE), 31/35, L.K. COLONY, INDUSTRIAL ESTATE, COIMBATORE-21. 4. K.S. SREENIVASAN, S/O. SAHASRANAMA IYER EMPLOYED AT B.S. DISTRIBUTORS, RESIDINGA AT RAMAPURAM, BANGALORE. 5. SMT.K.S. PARVATHI, D/O.LATE SAHASRANAMA IYER W/O. K.R. SAHASRANAMAN, KOUNTHIRAPULLI VILLAGE, PALAKKAD TALUK. 6. K.S. RAMANATHAN, S/O. LATE SAHASRANAMA IYER, EMPLOYED AT BANK OF MAHARASHTRA, COIMBATORE RESIDING AT UMA NAGAR, KODUNTHIRAPPULLY VILLAGE, PALAKKAD TALUK. BY ADV. SRI.G.SHRIKUMAR SRI.V.M.PRASAD SRI.K.S.MOHAMMED ZIYAD RESPONDENT/RESPONDENT/ DEFENDANT: ------------------------------------------------------------ K.N. AADIKESAVAN ALIAS KESAVANKUTTY, S/O. NARAYANA IYER, 11/217, KODUNTHIRAPULLI VILLAGE, AMSOM & DESOM, PALAKKAD TALUK. ADV. SRI.K.L.NARASIMHAN FOR R1 SRI.V.SANTHARAM FOR R1 SMT.ANNIE BIJU FOR R1 SMT.SHIJA VARGHESE FOR R1 SRI.ANTO THOMAS FOR R1 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11 / 10 / 2011 THE COURT ON 11/10/2011 PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No.552 OF 2005 =========================== Dated this the 11th day of October,2011 JUDGMENT Legal heirs of the plaintiff in O.S.204/1996 on the file of Munsiff Court, Palakkad are the appellants. Defendant is the respondent. Plaintiff instituted a suit seeking a decree for injunction restraining the respondent from drawing water using mechanical devise. Plaintiff contended that the plaint schedule property is his residential house and appurtenant land. On the backyard of the agraharam there is a well and though on superficial look, it may appear that it falls both in the property of the plaintiff and respondent, the well is within the property belonging to the plaintiff and he is in exclusive possession and enjoyment of the property. It is contended that respondent was RSA No.552/2005 2 permitted to take water manually using a pulley and he has no right to draw water by mechanical process and respondent is attempting to instal a motor and draw water and he has no right to do so and if respondent is to be permitted to draw water through mechanical process, it would cause the well to dry and would cause loss of drinking water to the plaintiff. Hence a decree was sought for. Respondent resisted the suit contending that the disputed well does not fall within the property of the plaintiff but is exclusively within his property and he is drawing water not as permitted by the plaintiff but as the owner of the well. It was contended that he has no intention to use water from the well for agricultural purpose. Though originally water was drawn using pulley, as the respondent and his wife are asthma patients, they are not in a position to manually draw water and therefore they intend to instal a motor and plaintiff is not entitled to the decree sought for. 2. Learned Munsiff appointed a Commission at RSA No.552/2005 3 the instance of the plaintiff. Commissioner submitted Exts.C1 and C2 reports and , C2(a) plan which show that the disputed well falls partly within the property of the plaintiff and partly within the property of the respondent. Learned Munsiff on the evidence of Pws.1 and 2, DW1, Exts.A1 to A3(m), and B1 to B4 dismissed the suit holding that when the well does not form exclusively within the property of the plaintiff and partly falls within the property of the respondent also plaintiff is not entitled to the decree for injunction sought for. 3. Plaintiff filed A.S.246/2000 before the District Court, Palakkad challenging the decree. On the death of the plaintiff, present appellants his widow and children, were impleaded as additional appellants. Before the first appellate court appellants produced Ext.A4 the photograph of the well with negative and filed I.A.2922/03, an application under Rule 27 of Order XL1 of Code of Civil Procedure, to receive them as additional RSA No.552/2005 4 evidence. I.A.2921/03 was filed to appoint a survey commission to identify the plaint schedule property. Learned Munsiff heard those applications along with the appeal. I.A.2922/03 was allowed and the additional document produced was received as additional evidence and marked Ext.A4. I.A.2921/03 was dismissed finding that appellants did not raise such a contention before the trial court. Learned District Judge on reappreciation of the evidence confirmed the findings of the learned Munsiff that the disputed well does not exclusively belong to the plaintiff but partly falls within the property of the respondent also. It was therefore found that plaintiff is not entitled to the decree for injunction restraining the respondent from drawing water using mechanical process for the domestic purpose, as respondent has contended in the written statement itself that he does not intend to use the water for non-domestic purpose. The appeal was dismissed. It is challenged in the second appeal. RSA No.552/2005 5 4. The second appeal was admitted formulating the following substantial questions of law. 1) Can a right of customary easement be exercised by a dominant owner imposing additional burden on the servient owner in view of Sections 22 and 23 of Indian Easement Act. 2) Whether on the facts and evidence, courts below were justified in holding that respondent is entitled to take water by using mechanical aid. 5. Learned senior counsel appearing for the appellants and the learned counsel appearing for the respondent were heard. 6. Though the learned senior counsel vehemently argued that respondent who is only having a customary right of easement to draw water RSA No.552/2005 6 from the wall is not entitled to impose additional burden on the appellants, servient owners, in view of sections 22 and 23 of Indian Easement Act, the said plea could be advanced only if appellants are the exclusive owners of the disputed well. Learned Munsiff and the learned District Judge based on Ext.C1 and C2 reports and Ext.C2(a) plan entered a factual finding that the well partly within the property of the appellants and partly on the property of the respondent. Learned senior counsel argued that first appellate court should have appointed a Survey Commission to identify the property correctly and fix the actual location of the well, as the plaintiff raised a contention before the trial court itself that the well exists within his property and the report of the commissioner is not correct. True, the belated objection filed before the trial court contains a plea that the Commissioner has not correctly marked the well and the well does not fall within the property of the respondent. At the same time RSA No.552/2005 7 it is to be born in mind that no objection was raised with regard to the survey line, as shown in Ext.C2(a) plan, which separates survey No.177/8 and 177/9. The property of the appellant is in survey No.177/8 which lies to the west of survey No.177/9 which belongs to the respondent. There is also no specific case that the well is not as marked by the Commissioner. Ext.C2 report submitted by the Commissioner shows that the properties were identified with the help of the Village Officer and the record shows that Commissioner had sought assistance of a Surveyor or the Village Officer and assistance of the Village Officer was ordered by the court and the property was fixed. There was no case that the separating boundary between survey No.177/8 and 177/9 is not correctly located in Ext.C2(a) plan. I find no necessity to issue another Commission as sought for by the learned senior counsel, to correctly fix the well. If that be so, as rightly found by the courts below it can only be found that the disputed well falls partly RSA No.552/2005 8 within the property of the appellants and partly within the property of the respondent. If that be so, appellants as well as the respondent are the owners of the well. Both are entitled to use the water and appellants are not entitled to restrain the respondent from using the water. In fairness appellants have not disputed the right of the respondent to draw water from the well and they are only contending that respondent has only the right to draw water manually and not to draw water with the aid of mechanical process. Though reliance was placed on sections 22 and 23 of Indian Easement Act, the plea could have been accepted if the disputed well falls completely within the property of the appellants. When the respondent is also the owner of part of the well, the right of the respondent cannot be restricted based on sections 22 and 23 of Indian Easement Act. 7. Eventhough respondent is entitled to draw water from the well and use it for domestic purpose, he is not entitled to draw water RSA No.552/2005 9 excessively so as to cause difficulties to the appellants. In the written statement itself, respondent admitted that he does not intend to draw water for non-domestic purpose. In such circumstances, it is to be found that respondent is not entitled to use the water drawn from the well for non-domestic purpose or to draw water for non- domestic purpose. At the same time respondent is entitled to draw water by mechanical process using a motor not exceeding one HP. The respondent shall not draw excessive water during summer season. The appeal is therefore allowed in part. The decree granted by the courts below are modified and suit stands partly decreed as follows:- Defendant in O.S.204/1996, though entitled to draw water using one HP motor, is not entitled to use the water for non-domestic purpose. He shall not draw excessive water during summer season. Parties to bear their respective costs. M.SASIDHARAN NAMBIAR JUDGE tpl/- RSA No.552/2005 10 M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006