IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 3RD FEBRUARY 2011 / 14TH MAGHA 1932 SA.No. 608 of 2000(E) & CROSS OBJECTION --------------------------------------------------- AS.88/1993 of ADDL.SUB COURT, IRINJALAKUDA OS.1143/1989 of PRL.MUNSIFF COURT,IRINJALAKUDA .................... APPELLANT(S): RESPONDENTS 2 & 3/DEFENDANTS 2 & 3 ------------------------------------------------------------------- 1. RAJAN, S/O.JANAKY, AGED 52 YEARS, KATTUNGACHIRA DESOM, IRINJALAKUDA VILLAGE, MUKUNDAPURAM TALUK. 2. SANTHA, W/O. PUTHIRIKATTIL VELAPPAN BHARATHAN, AGED 49, KATTUNGACHIRA DESOM, IRINJALAKUDA VILLAGE, MUKUNDAPURAM TALUK. BY ADV. SRI.K.P.DANDAPANI, SENIOR ADVOCATE RESPONDENT(S): APPELLANTS/PLAINTIFFS ---------------------------------------------------- 1. THANKAMMA, D/O. KOLATHUR KOCHUKUTTY AMMA, AGED 62 YEARS, KATTUNGACHIRA DESOM, IRINJALAKUDA VILLAGE, MUKUNDAPURAM TALUK. 2. SUKUMARAN, S/O. THANKAMMA, AGED 40 YEARS, KATTUNGACHIRA DESOM, IRINJALAKUDA VILLAGE, MUKUNDAPURAM TALUK. R1 & R2 BY ADV. SRI.K.G.BALASUBRAMANIAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs ORDER ON C.M.P. NOS.1586/2000 & 446/2003 IN S.A. NO.608/2000 DISMISSED 03/02/2011 SD/- P.BHAVADASAN, JUDGE /TRUE COPY/ P.A. TO JUDGE svs P.BHAVADASAN, J. -------------------------------------------------------- SA No.608 of 2000 & Cross Objection -------------------------------------------------------- Dated this the 3rd day of January 2011 Judgment Defendants 2 and 3 in OS No.1143/89 before the Munsiff's Court, Irinjalakuda, who suffered a decree for mandatory injunction at the hands of the lower appellate court, are the appellants before this court. The parties and facts are hereinafter referred to, as they are available before the trial court. The facts essential for the disposal of this appeal are as follows : 2. The plaintiffs as well as the defendants own properties adjacent to each other. According to the plaintiffs, the defendants' property is situated on the southern side of the plaint schedule property. A puramboke channel is running towards the eastern side of the plaint schedule property. The plaintiffs have pointed out that the said channel runs through the property of the defendants to drain water towards the eastern side. SA 608/2000 2 3. The complaint was that the defendants tampered with that thodu and cut open a breach in the plaint schedule property. Therefore, the suit was laid, praying for a mandatory injunction directing the defendant to close the channel and the breach cut open by them. 4. The defendants resisted the suit. Several contentions were raised by them. It was contended that they have not done any mischief as alleged in the plaint and if at all anything was done, it was not by them. According to the defendants, the cultivators of that locality are entitled to get free flow of water through the channel and the plaintiffs have no manner of right to cause any hindrance to the said right of the cultivators. On the above grounds, the defendants prayed for dismissal of the suit. 5. On the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PWs 1 and 2 and document marked as Ext.A1 from the side of the plaintiffs. The defendants examined DWs 1 to 3 and had Ext.B1 marked. Exts.C1 and SA 608/2000 3 C2 are the commissioner's report and plan. 6. The trial court, on the basis of the materials available before it, found that the plaintiffs had not been successful in establishing his case as pleaded in the plaint and therefore, dismissed the suit. 7. The plaintiffs carried the matter in appeal as AS No.88/93 before the Sub Court, Irinjalakuda. The lower appellate court, on an evaluation of the evidence, found that the trial court has misdirected itself in appreciating the evidence and that has resulted in a wrong decree being passed. According to the lower appellate court, there was sufficient evidence to show that misdeeds were committed by the defendants. Accordingly, the appeal was allowed in part and that part of the trial court's decree, refusing to grant mandatory injunction was set aside and the respondents were directed to close the newly put up breach. Hence the second appeal. 8. Notice is seen issued on the following questions of law raised in the second appeal : SA 608/2000 4 i. Whether the lower appellate court was justified in discarding the recitals in Ext.B1 document and accepting the oral evidence of PW1 in view of Section 91 of the Evidence Act ? ii. Whether the courts below are justified in accepting Ext.C1 report filed by the Advocate Commissioner on the basis of the inspection conducted in the absence of the defendants ? iii.Have the plaintiffs established a case for the issuance of a mandatory injunction ? iv.Has the lower appellate court justified in reversing the judgment and decree passed by the trial court ? 9. The learned counsel appearing for the appellant raised three points for consideration : 1.That there was an alternate thodu as could be seen from Ext.B1 document produced. 2.That there is absolutely no evidence to show that it was the defendants who had tampered with the thodu. 3. The decree now granted is far in excess to the reliefs SA 608/2000 5 sought for in the plaint. It has to be said that as regards the first two points, there is no substance in the submissions made by the learned counsel for the appellant. The lower appellate court has considered the evidence in considerable detail and after careful evaluation of the same, has come to the conclusion that there was tampering as alleged by the plaintiff and that it must have been done by the defendants. This being an essential question of fact, no interference is called for with the said finding. 10. But, the learned counsel for the appellant is well founded in his third submission that the decree now granted is far from the reliefs sought for in the plaint. The prayer in the plaint reads as follows : “A. Xmsg ]«nI hlIfnte¡ Xmsg ]«nIhlIfpsS sX¡p`mKw {]XnIÄ ssIhiapÅ hlIfpsS ] Snªmdp`mKw {]XnIÄ Dണm¡nbn«pÅ Nmepw Igbpw {] XnItfmS AS¡phm³ Hcp mandatory injunction Iev]\ aqew Ie]n¨pw {]XnIÄ tImSXn Ie]n¡p¶ Ah [n¡pÅnÂ A{]Imcw sN¿m¯]£w Hcp Court. DtZymKØs\ Ab¨ BbXp sNbXp Xcphm³ Ie]n¨pw A§ns\ hcp¶ Nneh {]XnIÄ hmZn¡p Xcphm³Ie]n¨pw. SA 608/2000 6 B {]XnIfpsS \nbahncp²hpw, A{Ia {]hr¯naqehpw hmZnIÄ¡ Hmtcm sImÃhpw kw`hnb¡p¶ \ãw 500/- I {] XnIÄ hmZn¡p I¿mepw kz¯p¡Ä sImണpw Xcphm³ Ie]n¨pw C Cu hyhlmc¯nse hmZn`mKw kIe tImSXn NnehpIfpw {]XnIÄ I¿mepw kz¯p¡Ä sImണpw hmZn¡p Xcphm³ Ie]n¨pw D hyhlmcas²y At]£n¡p¶Xpw bpàsa¶p tImSXn¡p tXm¶p¶Xpamb aÁp \nhr¯nIÄ \ÂInbpw Hcp hn[n DണmIphm\t]£n¡p¶p.” It can be seen that the reliefs sought for was only for a mandatory injunction directing the defendants to close the water channel and the breach they had made. There was no prayer at all to restore the water channel to its original position. Therefore, the decree now granted to that extent is beyond the scope of the suit. The learned counsel for the respondents was unable to justify that portion of the decree. No reasons were also seen given by the lower appellate court for travailing beyond the scope of the suit. 11. The respondents have filed a cross objection regarding that portion of the decree which declined damages. The trial court has gone into the said aspect and has held that the plaintiffs are not entitled to get any SA 608/2000 7 damages. The lower appellate court confirmed that portion of the trial court decree refusing to award damages. There is nothing to show that the conclusions drawn by the lower courts in this regard are unwarranted or unjustified and so, no interference is called for with that portion of the decree. In the result, that portion of the decree of the lower appellate court, directing the defendants to restore the water channel in continuation of the breach, is set aside. Rest of the decree will stand. Subject to the above modification, the second appeal is dismissed. There will be no order as to costs. The cross objection stands dismissed. P.Bhavadasan, Judge sta SA 608/2000 8