IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 22ND AUGUST 2011 / 31ST SRAVANA 1933 OP(C).No. 2652 of 2011(O) -------------------------------------- CMA.NO. 96/2009 of 1ST ADDL. DISTRICT COURT, PALAKKAD .................... PETITIONER ---------------------- 1. GOPALAN, S/O. VELAYUDHAN,KALLUKUTTIKALAM, KIZHAKKETHARA AMSOM,KOLLENGODE, CHITTUR TALUK,PALAKKAD DIST. 2. RAMACHANDRAN,S/O. DO.DO. BY ADV. SRI.P.R.VENKETESH SRI.P.R.RAJA RESPONDENT(S): --------------------------- 1. KESAVAN,S/O. VELAYUDHAN, KALLUKUTTIKALAM,KIZHAKKETHARA AMSOM, KOLLENGODE,CHITTUR TALUK,PALAKKAD DIST.PIN-678 680 2. ANIL KUMAR,S/O. LATE ARUMUGHAN, DO.DO.PIN-678 680 3. MURALEEDHARAN, S/O. KESAVAN DO.PIN-678 680 BY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts OP(C)NO.2652/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE COMMON ORDER DATED 3RD AUGUST 2009 IN IA NO.1745 OF 2009 IN OS NO.272 OF 2009 AND IA NO.1786 OF 2009 IN OS NO.280 OF 2009 OF THE LEARNED MUNSIFF. P2 COPY OF THE JUDGEMENT DATED 09/06/2011 IN CMA NO.96/2009 IN THE COURT OF THE DISTRICT JUDGE, PALAKKAD. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.S.TO.JUDGE sts THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.2652 of 2011 -------------------------------------- Dated this the 22nd day of August, 2011. JUDGMENT Judgment of learned District Judge, Palakkad in C.M.A.No.96 of 2009 confirming orders passed by learned Munsiff, Chittur on I.A. No.1745 of 2009 in O.S.No.272 of 2009 and I.A.No.1786 of 2009 in O.S.No.280 of 2001 is under challenge. 2. The dispute concerned right to draw water from the tanks situated in the A and D schedules of the partition deed executed between the parties and their father. As per the said partition deed, A schedule therein was allotted to the father while D and E schedules were allotted to the petitioners. All those schedules had a pond each. Petitioners filed O.S.No.272 of 2009 for a decree for prohibitory injunction to restrain respondents interfering with their possession and right to draw water from the tanks and also to remove the silt sand and soil that got accumulated over the years, in the pond in D and E schedules of the partition deed. That suit was resisted by respondents contending that in view of the recitals in the partition deed they have a right to take water from the ponds in D and E schedules to irrigate their own lands. Respondents filed O.S.No.280 of 2009 to restrain petitioners from de-silting the ponds in D and E schedules and also causing obstruction to their drawing water to irrigate their properties. In O.S.No.280 of 2009 respondents filed I.A.No.1786 of 2009 for an order of OP(C) No.2652/2011 2 temporary injunction in the said line. I.A.Nos.1745 and 1786 of 2009 were considered by learned Munsiff jointly. Learned Munsiff came to the conclusion that in view of the recitals in the partition deed all the parties are entitled to draw water from the various ponds referred to above. Learned Munsiff passed a common order on the two applications against which petitioners brought a single appeal before learned District Judge. Respondents raised a preliminary objection that since common order has been passed with respect to separate applications, petitioners could not file a single appeal challenging the common order. However, that contention was not decided by the learned District Judge since learned District Judge agreed with the view taken by the learned Munsiff and dismissed the appeal. That judgment is under challenge. 3. I have heard learned counsel for petitioners and respondents 1 and 3. Learned counsel for respondents raised an objection regarding maintainability of a single C.M.Appeal. 4. True that since there was common order on two applications, the proper course open to the petitioners was to file separate C.M.Appeals or, (at any rate) pay two set of court fee in the C.M.Appeal, nothing of which has happened. Since learned District Judge has not gone into that question it is not necessary for me to go into that question in view of the manner in which I propose to dispose of this petition. 5. Learned counsel for petitioners submitted that in the same matter, in W.P.(C) No.29641 of 2009 this Court in its judgment issued certain directions viz., that respondents could initially draw water from item I, pond (in OP(C) No.2652/2011 3 O.S.No.280 of 2009) and if there is no sufficient water in that pond, they could draw water from item II (in O.S.No.280 of 2009) as was done before. Learned counsel for petitioner, apart from his contention that respondents have no right to draw water from the ponds, items II and III (in O.S.No.280 of 2009) also contended that at any rate, the direction that this Court made in the judgment referred above can continue until disposal of the suits. It is pointed out by learned counsel that if respondents are permitted to draw water from items II and III, ponds petitioners will be put to irreparable loss and injury. 6. Learned counsel for respondents 1 and 3 submits that the writ petition was filed in challenge of the order passed by the learned Munsiff on an application filed by the respondents for Police assistance to enforce the order of injunction and this Court issued certain directions until the C.M.Appeal is disposed of, as agreed by parties. It is pointed out by learned counsel that as per the report of the Advocate Commissioner there will be sufficient water in item I, pond (in O.S.No.280 of 2009) only if water is collected from item II, pond. In that situation allowing respondents to initially draw water from item I, pond would be of no use for the respondents . It is also contended that during the last six months there was no cultivation in the lands of respondents since there was no water in item I, pond. Hence the said arrangement may not be allowed to continue until disposal of the suit. Learned counsel read the relevant portion of the report of the Advocate Commissioner. 7. Now coming to the issue as to entitlement of parties, the courts below found, in view of the recitals in the partition deed that parties, OP(C) No.2652/2011 4 notwithstanding ownership of the respective ponds are entitled to draw water from the ponds to irrigate their lands. That finding is made with reference to the recitals in the partition deed which I do not find reason to interfere. 8. Now as it stands there is no prohibition to the petitioners de-sliting water from Items II and III, ponds in O.S.No.280 of 2009 provided that such act does not injuriously affect the respondents. Respondents also permitted to draw water from Items II and III, ponds in O.S.No.280 of 2009. Having regard to the facts and circumstances and in the light of the concurrent finding entered by courts below on the basis of recitals in the partition deed, there is no reason why this Court should interfere with the judgment/order under challenge. 9. But grievance of the petitioners is also to be looked into. The appropriate course is to direct learned Munsiff to expedite disposal of the suit if pre-trial steps are over. Resultantly this Original Petition is disposed of directing the learned Munsiff to expedite trial and disposal of the suits untrammeled by the order/judgment under challenge or any observation contained in the judgment in W.P.(C) No.29641 of 2009 and this judgment. THOMAS P.JOSEPH, Judge. cks