IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 6TH JUNE 2008 / 16TH JYAISHTA 1930 SA.No. 872 of 1997(D) --------------------- AS.60/1992 of ADDL.DISTRICT COURT, THRISSUR OS.831/1988 of MUNSIFF COURT,CHAVAKKAD .................... APPELLANT/RESPONDENT/PLAINTIFF ---------------------------------------- VARIETH S/O KOOTHOOR VALLATTUKARA ANTONY VENKITANGU DESOM , VILLAGE CHAVAKKAD-680 610 BY ADV. SMT.K.K.GEETHA RESPONDENTS/APPELLANTS/DEFENDANTS ----------------------------------------------- 1. THEKKE KONCHIRA KOLE PADAVU COMMITTEE IRIMBRANELLUR, REPRESENTED BY ITS PRESIDENT K.M.ANTONY , SON OF KANJIRAM MATHEW IRIMBRANELLOOR, VENKITANGU- 680 610 2. P.K.ABU S/O KUNHAMED , PUZHNGARA ILLATHU SECRETAYRY, THEKKE KONCHIRA KOLE PADAVU COMMITTEE IRIMBRANELLUR- VENKITANGU- 680 610 BY ADV. SRI.P.V.CHANDRA MOHAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. ------------------------------------------ S.A. No. 872 of 1997 ------------------------------------------- Dated this the 6th day of June 2008 JUDGMENT The plaintiff in O.S. 831/1988 on the file of the Munsiff Court Chavakkad is the appellant herein The suit was filed for permanent prohibitory injunction restraining the defendants from constructing a new varamba through the plaintiff's property or to cause damages to paddy cultivation. The defendants are the president and Secretary of Thekke Konchira Kole Padavu committee. The parties herein after referred to as plaintiff and defendants as in O.S.831/1998 2. The plaint schedule property is a portion of a large of extent of Kole paddy fields which are lying contiguously There is big channel called 'Puramchannel' on the northern boundary of the plaintiff's property. Besides the big channel there are also small water channels in the Kole paddy fields for the purpose of distribution of water to various agriculturists. According to the plaintiff he is in exclusive possession and enjoyment of the plaint schedule property. The title of the plaintiff is not in dispute in this case. Ext. A1 to A5 are the documents by which the plaintiff claimed right title and possession over the same. It is the plaintiff's case that he is the owner and is in exclusive possession over the plaint schedule property and therefore the defendants have no manner of right to enter into the property and to construct a new Nadavaramba. S.A No. 872 of 1997 -2- 3. It is the admitted case of both parties that the plaint schedule property is a portion of the Thekke Konchira Kole Padavu The small channels as stated above in the middle and southern portion of the plaint schedule property and other properties are used to drain out water and to pump in water to the plaint schedule property and other neighbouring properties are admitted by the parties. 4. According to the defendants there is one 'Nadavaramba' and two water channels through the plaint schedule properties. It is the case of the defendants that the two water channels passing through the plaint schedule property take water to the various paddy fields and it does not belong exclusively to the plaintiff . The defendants claimed that the Kole Padavu Committee is in exclusive possession of the water channels and the Nadavaramba. They also contended that the plaint schedule property is a portion of the Konchira Kole Padavu which is about 199 acres. The periodic maintenance and repairs to the Nadavaramba and the water channels are done by the Kole Padavu Committee. The Committee has the obligation to drain out water from the fields and to make available water for irrigation purposes also. For the said purposes it is necessary for them to carry out periodical repairs to the water channels and the varambas. They also claim that the Padavu leading to each of the paddy fields was constructed by the Committee. They denied that they had attempted to lay any new varamba through the plaint schedule property. . According to them the repair and S.A No. 872 of 1997 -3- maintenance of water channels is absolutely necessary for the proper cultivation of the various paddy fields in the Kole padavu The defendants also pleaded that they have no idea to construct any new varamba through the plaint schedule property. They also claimed that the Padavu leading to each of the paddy fields was constructed by the Committee. It is not correct to say that those Padavu/steps are exclusively used by the plaintiff. Those Padavu/steps are constructed for entering into the plaint schedule properties and other properties. The defendants never attempted to put up new varamba through the plaint schedule properties or tried to cause damages to the paddy cultivation. The defendants never collected soil for constructing new varamba through the plaint schedule properties. It is also submitted by them that the plaintiff caused damages to the Nadavaramba passing through the plaint schedule properties. This conduct of of the plaintiff was discussed in the public meeting of the Kole Padavu committee The meeting decided to recover the expenses incurred for the repairs of the Nadavaramba from the plaintiff. The defendants requested the plaintiff through mediators to reimburse the expenses incurred for the maintenance of the Nadavaramba. It is at this juncture the suit was instituted. 5. The trial court examined the oral evidence tendered by the parties and their witnesses and discussed their versions in paragraph 13 and 14 of its judgment. On the plaintiff's side PWs 1 &2 were examined and Ext A1 to A5 were marked. DW1 was examined on the side of the defendants S.A No. 872 of 1997 -4- Exs. C1 to C4 were marked as Court Exhibits. 6. The trial court arrived at the conclusion that the defendants illegally and unauthorisedly attempted to commit waste and damages to the plaint schedule property. Placing reliance on Ext A1 to A3 the trial court held that the plaintiff has right title and possession over the plaint schedule property . Relying on PW1's version the trial court accepted the stand of the plaintiff that the neighbouring owners and the plaintiff are doing periodical repairs to the various small water channels in the Kole Padavu. On that basis the trial court concluded that the defendants are not in possession, control or management of the water channels and Nadavaramba passing through various paddy fields in the Kole Padavu The trial court decreed the suit as prayed for 7. The defendants challenged the finding entered by the trial court in A.S. 60/1992. The appellate court partly allowed the appeal The decree for permanent prohibitory injunction granted by the trial court was confirmed by the lower appellate court At the same time the appellate court made a modification stating that the defendants in the suit will have the right to carry out periodical repairs and maintenance of the water channels running through the plaint schedule property. The plaintiff being aggrieved by the modification made by the lower appellate court has filed this second appeal S.A No. 872 of 1997 -5- 8. It is admitted fact that the obligation to regulate the inflow and out flow of water for irrigation purposes of the Kole paddy fields is on the defendant committee. It is also an undisputed fact that the small water channels are passing though the properties of the plaintiff and several other agriculturists. Therefore the counsel for the defendants submitted that it cannot be said that the plaintiff is in exclusive possession of those water channels and the Nadavaramba and that the defendants have no manner of right over the same. It is an undisputed fact that the obligation to drain out water and to make water available for the various cultivators is on the committee and therefore it was necessary to be maintain and repair the water channels The appellate court has discussed and considered the submissions made by the counsel on behalf of the defendants The appellate court is also of the view that it is for the committee to maintain and repair the water channels. According to the lower appellate court if the plaintiff's case is accepted that the water channel is exclusively belonged to the plaintiff, the defendants committee will not be able to make water available to the other cultivators in the Kole paddy fields. The appellate court came to the conclusion that by any stretch of imagination it could not be said that the defendant have no right title over the water channels and Nadavaramba passing through the plaint schedule property The appellate court also taken note of all the submissions made on behalf of the defendants that they have no intention to trespass into the plaint schedule S.A No. 872 of 1997 -6- property or to lay any new varamba through the same. Their only activity is to maintain and repair the small water channels passing through the property of the plaintiff and many others. The water channels are passing through not only through the plaintiff's property but also the properties of other cultivators as well. It is an admitted fact that the plaint schedule property is a portion of a large extent of property known as Kole Padavu The plaintiff also admitted that it is the duty of the committee that to drain out water and pump in of water to the various paddy fields. The appellate court also perused the commissioner's report and oral evidence of the parties and observed that the channels passing through the plaint schedule property are owned by the respective owners and that the committee have no right over the chal( channel). The learned judge also noted the fact that the plaintiff has no case that the channels are not necessary for draining out water and bringing in water. It is admitted by the plaintiff that the plaint schedule property is a portion of 199 acres of the Kole padavu belonging to more than 150 farmers. On an evaluation of the facts the lower appellate court came to the conclusion that it is difficult to accept the case of the plaintiff that the committee have no right over the chal. . The appellate court after considering the matter elaborately held that the right of the defendants is confined to carryout repairs and maintenance works of the water channels to ensure free flow of water. The lower appellate court also confirmed the decree and judgment passed by the trial court with a S.A No. 872 of 1997 -7- modification enabling the defendants to carry out the periodical repairs and maintenance of the water channels running through the plaint schedule property The findings recorded by the trial court confirmed by the appellate court are based on facts and materials as stated above and therefore no grounds are made out for interference by this Court The modification made by the appellate court is passed on the basis of findings of facts recorded by it . I find that no substantial question of law arises for consideration in this appeal . Therefore this second appeal fails; it is accordingly dismissed. No order as to costs. HARUN-UL-RASHID, JUDGE es