IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 16TH FEBRUARY 2011 / 27TH MAGHA 1932 RSA.No. 1351 of 2010 ----------------------------------- AS.14/2006 of ADDL. DISTRICT COURT, PATHANAMTHITTA OS.512/2002 of MUSNIFF COURT, ADOOR .................... APPELLANT/RESPONDENT/DEFENDANT: SUDHEER VARGHEE,S/O.VARGHESE, KUZHIMURIYIL HOUSE, NEAR SANTHOSH JUNCTION, MELOOTTUBHAGOM MURI, OMALLOOR VILLAGE, NOW RESIDING AT IPC EBENEZER, PUTHENCHANTHA PO, VAKATHANAM, KOTTAYAM 686 538. BY ADV. SRI.K.THYAGARAJESWARAN RESPONDENT/APPELLANT/PLAINTIFF: G.AJITH KUMAR,S/O.GOPINATHAN NAIR, PARVATHI NARAYANAPURAM , BUNGLOW, MELOOTTUBHAGOM MURI,OMALLOOR VILLAGE NOW RESIDING AT KAIRALI, MELOOTTUBHAGOM MURI, OMALLOOR VILLAGE. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 16/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------------------- R.S.A.No.1351 of 2010 ------------------------------------- JUDGMENT Defendant in O.S.No.512/2002 on the file of Munsiff's Court, Adoor is the appellant. Plaintiff is the respondent. The suit was instituted seeking declaration of his right to flow water from his property, which is described as Item No.1 of plaint schedule property, through the property of the appellant, which is described as Item No.2 of plaint schedule property and lies to the east of Item No.1 of plaint schedule property and for a mandatory and prohibitory injunction. Respondent would contend that Item No.1 of plaint schedule property, which belongs to him, is a paddy field and it was lying on a higher level compared to Item No.2 of plaint schedule property, which lies to the west. On the east of Item No.2 of plaint schedule property is Pathanamthitta-Kaipattoor public road and to the north of Item Nos.1 and 2 of plaint schedule property, there is a thodu and a culvert is constructed at the point where the thodu crosses the road. Appellant raised thelevel of Item No.2 of plaint schedule property by putting earth and thereby caused obstruction to the RSA 1351/10 2 free flow of water through Item No.4 chal, which connects the eastern sluice which opens to the eastern boundary of Item No.2 of plaint schedule property and appellant has no right to cause any such obstruction. Respondent, therefore, sought declaration of his right to have free flow of water from west to east through Item No.2 of plaint schedule property and sought a mandatory and prohibitory injunction. 2. Appellant resisted the suit contending that free flow of water was not obstructed by him. It is contended that there is only a sluice at the point where there was a pond on the western side of the road and southern side of Item No.2 of plaint schedule property and Item No.4, which is described by the plaintiff as a chal, is only imaginary and water was not flowing through that chal as claimed. Appellant contended that respondent has no right to have flow of water through Item No.2 of plaint schedule property and therefore, the suit is to be dismissed. 3. Learned Munsiff, on the evidence of PW1, DW1 and CW1 and Exhibits A1, B1 and C1 and C2, dismissed the suit finding that respondent did not establish any right of easement through RSA 1351/10 3 Item No.2 of plaint schedule property. Respondent challenged the judgment before Additional District Court, Pathanamthitta in A.S.No.14/2006. Learned Additional District Judge, on re- appreciation of evidence, found that claim of the respondent was based on Section 7 of Easement Act and contention is that he is the owner of upper riparian and appellant, being the lower riparian owner in possession of Item No.2 of plaint schedule property, which is lying lower compared to Item No.1 of plaint schedule property, under Section 7, respondent has a right to have free flow of water from his property to Item No.2. Learned Additional District Judge also found that evidence establish that the paddy field in Item No.2 of plaint schedule property was subsequently filled up and thereby level of the paddy field was raised causing obstruction to the free flow of water and as a result, flow of water from west to east through the sluice, which lies to the east of Item No.2 of plaint schedule property, has been obstructed and declared the right of the respondent and granted a mandatory and prohibitory injunction. It is challenged in the second appeal. 4. Learned counsel appearing for the appellant was heard. RSA 1351/10 4 5. Learned counsel made available the Commissioner's report and plan as well as the depositions of the appellant as DW1 and respondent as PW1. Learned counsel vehementally argued that respondent did not establish any right to take water from Item No.1 of plaint schedule property through Item No.2 of plaint schedule property. It was argued that no right of easement was set up and only a natural right was set up and respondent has no natural right to take water through his property, when there is a thodu on the north and a chal in between Item Nos.1 and 2 of plaint schedule property, as found by the Commissioner. Learned counsel pointed out that evidence establish that there was a pond on the southern side of the property fifty years back. That pond disappeared and the sluice found on the east of the plaint schedule property was constructed at the time when the eastern Panchayat road was formed for free flow water from that point and report of the Commissioner shows that, that sluice is aged fifty years and it supports the case of the appellant that, that sluice was constructed for the purpose of flow of water from the pond. It is, therefore, argued that the decree granted by the first appellate court is unsustainable. RSA 1351/10 5 6. As rightly found by the learned Additional District Judge, the right claimed by the respondent is based on Section 7 of Easement Act. Pleadings establish that respondent has specifically pleaded that Item No.1 of plaint schedule property is on a higher level compared to Item No.2 of plaint schedule property which lies to its east. It is also specifically pleaded that flow of water is from west to east. It is specifically pleaded that the water which collects on the western side of Item No.2 of plaint schedule property, flows towards east and thereafter through the sluice and flows further towards east. Though learned counsel vehementally argued that there is no evidence to prove that Item No.2 of plaint schedule property was lying on a lower level compared to Item No.1 of plaint schedule property before it was filled up, evidence of PW1 that Item No.1 of plaint schedule property was lying on a higher level compared to Item No.2 of plaint schedule property was not challenged in cross- examination. Therefore, it is not open to the appellant to contend that there is no evidence to prove that Item No.1 of plaint schedule property was lying on a higher level compared to Item No.2 of plaint schedule property. RSA 1351/10 6 7. It is admitted by the appellant as DW1 that flow of water is from west to east. Existence of a sluice, as marked by the Commissioner on the eastern side of the plaint schedule property, is also not disputed. Report of the Commissioner establishes that the sluice passes below the road and its western mouth opens towards Item No.2 of plaint schedule property. The report further shows that Item No.2 of plaint schedule property was filled up now and it is not opening to Item No.2 of plaint schedule property as a result of filling the field with earth and the mouth is closed. Level of Item No.2 has been now raised similar to the level of the eastern road. Evidence, therefore, establish that free flow of water from west to east through Item No.2 of plaint schedule property was obstructed as level of Item No.2 has been raised by filling up the property. 8. Argument of the learned counsel is that there is no evidence to prove that there was a chal as described under Item No.4, for which mandatory injunction was granted. The contention raised in the written statement with regard to the sluice reads as follows: RSA 1351/10 7 “In fact, there is no culvert near defendant's property across the road as many years before there was a pond on the western side of Kaippattoor-Pathanamthitta road and south of defendant's property and water from this pond was flowing towards east in a small channel. At the time of re-construction of the Kaippattoor- Pathanamthitta road a sluice was provided at this point to facilitate the flow of water from the above said pond. By efflux of time, the said pond has naturally dried up and vanished.” Case of the appellant is not that there was a pond in Item No.2 of plaint schedule property and water flows towards its east. If the allegation in the written statement is to be accepted, from the pond which was there in existence fifty years back, on the south of Item No.2 of plaint schedule property, water used to flow through the chal towards east. Subsequently, when Pathanamthitta-Kaippattor public road was formed, a sluice was constructed at this point. If that be so, that sluice can never be to the east of Item No.2 of plaint schedule property, but only to the south-east of Item No.2. There is no case in the written statement that water from that pond used to flow towards north and thereafter flows towards east. On the other hand, the only case is that from the pond, through a channel, water used to flow RSA 1351/10 8 towards east and at this point a sluice was constructed. That sluice was marked by the Commissioner almost at the middle of Item No.2 of plaint schedule property. From the contentions raised in the written statement, it is clear that, that the sluice was constructed at a place where the chal, which was flowing earlier, touches the public road. If that be so, it can only be a chal, which was flowing from west to east through Item No.2 of plaint schedule property. In such circumstances, appreciating the entire evidence in the proper perspective, I find no illegality in the finding of the learned Additional District Judge that respondent established that he has the right as provided under Section 7 of Easement Act. Hence, the decree granted for declaration and mandatory and prohibitory injunction is perfectly legal and warrants no interference. On the facts, no substantial question of law arises for consideration in this appeal. Appeal is dismissed. 16th February, 2011 (M.Sasidharan Nambiar, Judge) tkv