IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 22ND SEPTEMBER 2009 / 31ST BHADRA 1931 SA.NO. 827 OF 1995() ----------------------------- AS.51/1990 OF DISTRICT COURT, PALAKKAD OS.185/1979 OF PRL.MUNSIFF COURT, PALAKKAD .................... APPELLANT(S) – APPELLANTS - DEFENDANTS: -------------------------------------------------------- 1. SARAMMA, W/O. VARGHESE, RESIDING AT THOTAPUZHA HOUSE, ERAVIPEROOR VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT. 2. A.C. GEORGE, S/O. CHERIAN, RESIDING AT AZHANTHARA VEETTIL KADIYANGADU, CHERAYA AMSOM KONGAD DESOM, PALAKKAD TALUK. 3. A.C. CHACKO, S/O.CHERIAN DO. DO. DO. BY ADV. SRI.THAMPAN THOMAS RESPONDENT(S) – RESPONDENT - PLAINTIFF: ---------------------------------------------------------- JANARDANA VAIDYAR, S/O.KESAVAN VAIDYAR, CHERAYA AMSOM KONGADU DESOM, PALAKKAD TALUK. ADV. SRI.T.C.MOHANDAS SRI.A.R.GANGADAS FOR SMT.ANJU GOVIND SMT.S.CHITHRA SMT.M.PREETHA THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = S.A. NO. 827 of 1995 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 22nd day of September, 2009 J U D G M E N T ---------------------- Second Appeal arises from judgment and decree of learned District Judge, Palakkad in A.S. No.51 of 1990 and the Cross Objection therein modifying decree and judgment of learned munsiff in O.S. No.185 of 1979. Respondent sued appellants for declaration of right of easement or in the alternative for declaration that the disputed water chal described as “OPQRS’ in the sketch appended to the plaint is a natural stream, respondent has right to drain out rain water from his land to that water chal, draw water from the water chal and for mandatory injunction to direct appellants to restore the filled up portion of the water chal running through their property. He also claimed from the appellants damages to the tune of Rs.1,000/- and future damages at the rate of 200 hundred paras of paddy per year till the filled up portion of water chal is restored. According to respondent disputed water chal was being used to drain out rain water that was collected in the hillock on the north and flowing down towards south. The said water chal joins Kundalassery thodu on the further south. That water chal is having a width of eight feet S.A. NO.827 of 1995 -: 2 :- and depth of two feet. On 2.9.1999 appellants filled up the water chal near their paddy field. Appellants contended that flow of water from the respondent's property is into the paddy fields of Kuttan and Velayudhan. There was no water chal from the point “Q” in the sketch appended to plaint. It is incorrect to say that water was flowing along “OPQRS” and joined Kundalassery thodu. Appellants denied existence of the water chal. They also denied that they filled up the water chal. Respondent examined P.Ws.1 to 4 and proved Exts.A1 to A9. Appellants examined D.Ws.1 and 2. Exhibits C1 to C5 are reports and plans prepared by the Advocate Commissioner. Learned munsiff came to the conclusion that there is a water chal described as “OPQRS” in the sketch appended to the plaint which is marked by the Advocate Commissioner in Ext.C2 as “MNOPIHGFD”. Learned munsiff also found from the evidence of P.Ws.1 to 4 and Exts.C1 to C5 that water chal existed and that it was closed at point “D” (near the property of the appellants) by the appellants. From the evidence of P.Ws.1 to 4 it was found that during rainy season there was flow of water from north to south through the water chal marked as “MNOPIHGFD”. It was also found that due to the act of appellants respondent suffered damages and while declaring right of respondent to drain out water during rainy season through the disputed water chal S.A. NO.827 of 1995 -: 3 :- and draw water from the chal for irrigation granted mandatory injunction for its restoration and directed appellants to pay damages to the respondent to the tune of Rs.1,000/- and future damages at the rate of 50 paras of paddy per year till the water chal is restored. Against that decree and judgment appellants preferred A.S. No.51 of 1990. Respondent not being satisfied with future damages awarded preferred the Cross Objection. Learned District Judge concurred with the trial court as to the existence of the water chal, its closure by the appellants near their property and right of respondent to use the water chal. Learned District Judge also found that though the learned munsiff in the body of judgment found future damages payable as at the rate of 100 paras of paddy, in the decretal portion what was granted is only 50 paras of paddy and accordingly allowed Cross Objection and modified future damages payable at the rate of 100 paras of paddy per year till the water chal is restored. Aggrieved, appellants have come up in Second Appeal. The following substantial questions of law are framed. “1. Is the respondent protected by Section 7, Illustration (h) of the Indian Easements Act, 1882 and whether courts below have correctly interpreted the said S.A. NO.827 of 1995 -: 4 :- provision? 2. Is the first appellate court correct in declaring that respondent is entitled to the right of easement by necessity? 3. Whether courts below were justified in granting injunction as prayed for? 4. Are not courts below wrong in awarding damages especially when the trail court found that there is no evidence to award damages”. 2. So far as finding of fact entered by the courts below as to the existence of water chal, its user by respondents and closure of the water chal where it passed through the property of appellants is concerned, I have referred to the evidence. It is after considering the evidence of P.Ws.1 to 4 and Exts.C1 to C5 and even considering the evidence let in by the appellants that courts below found in favour of existence of water chal and its closure at the point where it passed through the property of appellants. It has also come in evidence that on the north of the property it is a hill and water flows towards south. Advocate Commissioner also found that water flows from the north. S.A. NO.827 of 1995 -: 5 :- There is no reason to interfere with the concurrent finding entered by the courts below in those regards. 3. Substantial questions of law raised for consideration is whether appellants are protected by Section 7 Illustration (h) of the Indian Easements Act (for short, “the Act”) and whether first appellate court was correct in holding that respondent has right of easement by way of necessity. Section 7 of the Act deals with easements which are restrictive of certain rights such as about right of every owner of land that the water of every natural stream which passes by, through or over his land in a defined natural channel shall be allowed by other persons to flow within such owner's limits without interruption and without material alteration in quantity, direction, force or temperature, the right of every owner of land abutting on a natural lake or pond into or out of which a natural stream flows, that the water of such lake or pond shall be allowed by other persons to remain within such owner's limits without material alteration in quantity or temperature. Clause (i) refers to the right of every owner of upper land that water naturally rising in, or falling on such land, and not passing in defined channels shall be allowed by the owner of adjacent lower land to run naturally thereto. This Court in M.Kanna & Others v. T. Chathu & Another (1970 KLT 124) has recognized the right of reparian owners S.A. NO.827 of 1995 -: 6 :- for discharge and use of natural stream irrespective of diminution in quantity of water in such use. Evidence on record shows that the disputed water chal is a natural chal and as such respondent has a natural right to use the said water chal be it for draining out water from his property or for the purpose of irrigation of his own land. Though there is an observation in the judgment of learned District Judge that respondent is entitled to right of easement by way of necessity also and that right has been infringed by the appellants due to their act what is really involved is the natural right of respondent protected under Sec.9 Illustration (h) of the Act. Therefore respondent is entitled to the mandatory injunction prayed for. 4. Then the question is whether the courts below are justified in awarding damages. So far as the award of Rs.1,000/- is concerned, trial court has referred to the inconveniences suffered by the respondent due to the act of appellants and to compensate the loss caused to the respondent in that way, Rs.1,000/- has been awarded as damages. Assessment of damages would involve some sort of arbitrariness also. What this Court is required to consider is whether damages awarded is alarmingly high so that this Court should interfere. No substantial question of law is involved in that mater. On going through the records I am not inclined to think that Rs.1,000/- S.A. NO.827 of 1995 -: 7 :- awarded is alarmingly high, involved any substantial question of law and hence required any interference. 5. What remained for consideration is whether courts below are justified in awarding future damages at the rate of 100 paras of paddy per year till the water chal is restored. What the trial court awarded towards future damages is at the rate of 50 paras of paddy and observing that it is a mistake committed by the trail court since in the body of judgment it is stated respondent is entitled to future damages at the rate of 100 paras of paddy per year, first appellate court modified the decree accordingly. Learned counsel for appellants submitted that substantial question of law is involved as the award of future damages is without any basis or data. Learned counsel asserts that property belonging to the respondent has already been converted into rubber plantation and as such question of future damages did not arise. Learned counsel for respondent was not able to say whether the land of respondent has been converted into rubber plantation. Hence I am not going into that question in this appeal. However, learned munsiff has observed that there is no proper evidence to decide the issue regarding future damages. It is not clear what exactly is the damages suffered by the respondent. Without any basis damages could not be awarded. Therefore I am S.A. NO.827 of 1995 -: 8 :- not inclined to think that courts below were legally correct in awarding future damages at the rate of 100 paras of paddy per year. That part of the judgment and decree are liable to be set aside. 6. Substantial questions of law are answered accordingly. Resultantly, Second Appeal succeeds in part. Judgment and decree under challenge to the extent it awarded future damages to the respondent are set side. In other respects Second Appeal is dismissed without any order as to costs. Civil Miscellaneous Petition No.1990 of 1995 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv S.A. NO.827 of 1995 -: 9 :- THOMAS P.JOSEPH, J. =================== S.A. NO.827 of 1995 =================== J U D G M E N T 22ND SEPTEMBER, 2009