IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 15TH NOVEMBER 2010 / 24TH KARTHIKA 1932 RSA.No. 210 of 2005() --------------------- AS.58/1995 of ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC), FAST TRACK COURT-I, PATHANAMTHITTA OS.77/1994 of MUSNIFF COURT, ADOOR .................... APPELLANTS/PLAINTIFFS/RESPONDENTS: ------------------------------------------------------ 1. NEELAKANTA KURUP MADHAVAN PILLAI, AGED 69, RAJASREENILAYATHIL, KURAMPALA MURI, -DO- VILLAGE, PANDALAM P.O. 2. GOURI AMMA LALITHAMMA, AGED 58, W/O. NEELAKANTA KURUP MADHAVAN PILLAI, -DO- -DO-. BY ADV. SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN RESPONDENT(S)/DEFENDANTS/APPELLANTS: ------------------------------------- 1. PRABHAKARAN PILLAI, AGED 68, S/O. NARAYANA PILLAI, PRASANTHIYIL FROM PUSHPALAYATHIL, KADACKADU MURI, KURAMPALA VILLAGE, ADOOR TALUK. 2. SMT.RAJAMMA, AGED 60, W/O. PRABHAKARAN PILLAI, PRASANTHIYIL FROM PUSHPALAYATHIL, KADACKADU MURI, KURAMPALA VILLAGE, ADOOR TALUK. ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE FOR R1 & 2 SRI.SAJU.S.A FOR R1 & 2 SRI.K.C.KIRAN FOR R1 & 2 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08/09/2010, THE COURT ON 15/11/2010 DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- R.S.A.NO.210 OF 2005 ----------------------------------- Dated this the 15th day of November, 2010 J U D G M E N T Plaintiffs are the appellants. Suit was one for an injunction, both mandatory and prohibitory. The plaintiffs have acquired a right of quasi easement for flow of water from their property, plaint 'A' schedule, through the water channel described as 'C' schedule running through the middle of 'A' schedule and then continuing through the property of the defendants, plaint 'B' schedule, is the basis of the suit claim. Alleging that the defendants have filled up a portion of the 'C' schedule running through their property, a decree of mandatory injunction was applied for restoring 'C' schedule as it existed before and a prohibitory injunction to restrain the defendants from filling up or destroying the 'C' schedule. Suit claim was resisted by the defendants/respondents on various grounds even disputing the existence of 'C' schedule and also the flow of water from 'A' R.S.A.NO.210/2005 2 schedule to 'B' schedule. Maintainability of the suit was also impeached by the defendants. The trial court, on the materials placed, held that the plaintiffs are not entitled to the right of quasi easement claimed for flow of water through 'C' schedule, and declined the mandatory injunction, applied for, in the suit. However, a decree was passed declaring that the plaintiffs have a natural right to flow the surface water from plaint 'A' schedule property to 'B' schedule and the defendants were directed to remove the obstruction over the flow of water, noted by the advocate commissioner, providing an outlet for smooth flow of water from 'A' schedule. The defendants were further directed to remove the obstructions caused by filling up the bund in their property to facilitate the flow of surface water from 'A' schedule through their property, 'B' schedule. A decree of prohibitory injunction was also passed against the defendants restraining them from causing any obstruction to the natural flow of water from 'A' schedule through their property. Decree granted to the plaintiffs in the suit, as indicated above, was challenged by the defendants, preferring an appeal. The lower appellate court after re-appreciating the materials, holding that there is no R.S.A.NO.210/2005 3 evidence establishing the natural flow of water from plaint 'A' schedule property of the plaintiffs through the property of the defendants, 'B' schedule, set aside the decrees passed by the trial court and dismissed the suit, allowing the appeal. Challenge in the second appeal by the plaintiffs is against the reversal of the decree of the trial court, by the lower appellate court. 2. Substantial questions of law raised in the appeal are thus: (i) In the facts and circumstances of the case, whether the lower appellate court is justified in discarding the material piece of evidence Exts.A3 to A5 and C1 to C3 documents which were produced, proved and marked in evidence through PW1 and accepted by the trial curt in evidence and acted on it ? (ii) Whether the lower appellate court is justified in negativing the decree of the trial court in respect of the natural right of the plaintiffs to get the rain water collected in their property drained through the defendants property the subjacent and adjacent land lying geographically in a lower level ? R.S.A.NO.210/2005 4 3. The learned counsel for the appellants/plaintiffs, relying on a number of authorities, assailed the impugned judgment rendered by the lower appellate court contending that it had failed to take note of the claim raised as a right of quasi easement and of natural rights. The right of the owner of the highland to drain of the surface water in his property through the adjacent lower land is incidental to the ownership of the land, and that alone, on the materials placed, was upheld by the trial court, according to the counsel, by granting a declaration in favour of the plaintiffs that they have a natural right for flow of water from 'A' schedule to 'B' schedule, with direction to the defendants to remove the obstruction caused to such flow of water through his property providing a minimum outlet in the bund put up by them blocking the flow of water. The limited reliefs granted to the plaintiffs though they have canvassed for larger reliefs in the suit, on proof of their legal entitlement to have such limited reliefs, by the materials tendered in the case, including the reports and plan prepared by the advocate commissioner, it is submitted by the counsel, was interfered with R.S.A.NO.210/2005 5 by the lower appellate court ignoring the proved facts and circumstances of the case and mis-appreciating and misconstruing the evidence tendered and also the legal principles applicable to the case. 4. Per contra, the learned counsel appearing for the respondents contended that where the plaintiffs have miserably failed to prove that there existed a natural flow of water from their property through that of the defendants, the conclusion drawn and the decision of the lower appellate court interfering with the decree granted by the trial court, which, had been passed on no material whatsoever and, further, after holding that the plaintiffs are not entitled to the declaration of quasi easement canvassed in their suit, does not suffer from any infirmity whatsoever, and the appeal is devoid of any merit. Plaintiffs setting forth a case that they have a right of quasi easement for flow of water from their property, through the property of defendants, had sought for a decree of mandatory injunction. They cannot turn around and seek a different relief, not even asked for, is the further submission of the counsel to urge that the decree granted in favour of the plaintiffs by the R.S.A.NO.210/2005 6 trial court was unsustainable, and that, it was rightly and correctly interfered with by the lower appellate court. Adverting to the materials tendered in the case, it is contended that the finding entered by the lower appellate court that there was no material evidence other than the assertion of the 1st plaintiff, when examined as PW1, over the claim of natural flow of water from his property to 'B' schedule, is unassailable. The reports of the commissioner, which were taken behind the back of the defendants, and that too, without issuing notice to them were rightly and correctly found by the lower appellate court as inadmissible when the commissioner who prepared the reports was not examined, according to the counsel. There was total paucity of evidence to sustain the claim set up by the plaintiffs in the suit whether it be as a right of quasi easement or a natural right for flow of water from their property to the property of the defendants, is the submission of the counsel to contend that the appeal does not involve any question of law, leave alone substantial question of law, and that no interference with the dismissal of the suit under the impugned judgment passed by the lower appellate court is called for. R.S.A.NO.210/2005 7 5. To consider the rival submissions made by the counsel, as aforesaid, claim raised in the suit, the relief canvassed thereunder and also the challenge set up, in brief, is called for. Plaint 'A' schedule is 32 cents of land, which originally formed part of 1 acre 12 cents belonging to the father of the 1st plaintiff. His father had previously gifted 56 cents of land, which take in 'A' schedule, in favour of his mother. After the death of the mother, 1st plaintiff and siblings joined together and executed Ext.A1 partition deed, by which, the 1st plaintiff got 'A' schedule property in his favour. Later, he executed Ext.A2 settlement deed, by which, 15 cents out of the 'A' schedule was settled in favour of the 2nd plaintiff, his wife. Plaint 'B' schedule is situated to the west of 'A' schedule, which according to the plaintiffs, lie on a lower level. Plaintiffs claimed that in between the properties of the 1st and 2nd plaintiffs, that is, on the southern side of 17 cents belonging to the 1st plaintiff and northern side of the 15 cents settled in favour of the 2nd plaintiff under Ext.A2, a chal described as 'C' schedule having a width of 4 feet and depth of 3 feet facilitating water flow from east to west existed from R.S.A.NO.210/2005 8 time immemorial and that channel continued through the western property 'B' schedule belonging to the defendants. Plaint 'B' schedule is lying on a lower level and the water flow through the channel passing through 'B' schedule reached a culvert beside the public road, was the case of the plaintiffs. The defendants closed the 'C' schedule at the boundary of their property separating 'A' schedule and also filled up the 'C' schedule in their property, was the case of the plaintiffs to seek a decree of mandatory injunction against the defendants for removal of that obstruction to facilitate free flow of water through 'C' schedule from 'A' schedule. Later, the plaint was amended to incorporate a further allegation that the plaintiffs have been in enjoyment of a natural right in continuation of their predecessor for flow of surface water from 'A' schedule through 'C' schedule and they have also obtained a right of quasi easement for flow of such water from their property to the defendants property, 'B' schedule and the defendants have no right to cause any obstruction to the same. As indicated earlier, the defendants have disputed the rights claimed as aforesaid by the plaintiffs even by denying the existence of 'C' schedule. R.S.A.NO.210/2005 9 There was no water channel as claimed by the plaintiffs and they have no right of quasi easement or natural right to flow the surface water from 'A' schedule to 'B' schedule was the contention of the defendants. 6. Previously, 1st plaintiff's mother had instituted a suit for a decree of injunction to restrain the defendants from causing any obstruction to the flow of water from her property, covered by Ext.A2 settlement deed. Plaint 'A' schedule in the present suit formed part of 56 cents obtained by the 1st plaintiff's mother, and that was the subject matter in the earlier suit, is not a matter in dispute. After obtaining a report and sketch through an advocate commissioner, pending suit, the 1st plaintiff's mother had passed away. That suit was dismissed as abated and steps taken by the legal heirs to set aside the abatement and prosecute the suit, were turned down. Thereafter, the present suit was instituted by the plaintiffs for the decree of mandatory injunction against the defendants. At the time of institution of the suit, the plaintiffs have applied for an ex parte commission, and the advocate commissioner deputed by the court had conducted local R.S.A.NO.210/2005 10 inspection, but, without notice to the defendants, and prepared Exts.C2 rough sketch and C3 report. The trial court, on the materials placed, including the report of the advocate commissioner in the previous suit, concluding that there is no 'C' schedule in existence and the plaintiffs have no right of quasi easement as claimed, held that they have a natural right to flow surface water collected in plaint 'A' schedule through 'B' schedule, and the obstruction to such flow of water caused at the boundary of the 'A' schedule as identified by the advocate commissioner in Ext.C2 sketch by the defendants, is liable to be removed. On that basis, a decree declaring that the plaintiffs have a natural right to flow surface water from 'A' to 'B' schedule, a mandatory injunction directing the defendants to remove the obstruction caused to the flow of water, at the boundary separating their property with that of plaint 'A' schedule, as identified by the advocate commissioner in Ext.C2 rough sketch, and a perpetual prohibitory injunction restraining the defendants from causing any obstruction to the flow of surface water from 'A' schedule through the outlet in 'A' schedule to their property, 'B' schedule, was passed in the suit. R.S.A.NO.210/2005 11 The decree so granted in favour of the plaintiffs was reversed in the appeal preferred by the defendants by the lower appellate court and the suit had been dismissed. The lower appellate court found that both commission reports, one collected in the previous suit filed by the 1st plaintiff's mother and the other in the present suit, were inadmissible as they have not been proved by examining the commissioner, who prepared the same. It has also been observed in the impugned judgment that at the time of hearing it was conceded that eschewing the reports of the advocate commissioner in the two suits, there is no reliable evidence in the suit. The report collected in the suit, even if it was under Order XXXIX Rule 7 of the CPC, with the court being satisfied that such an emergent commission, is necessary to consider orders, if any, to preserve the status quo of the suit property, at the most, such report could be used only for passing of interlocutory orders for preservation of the property pending suit. When the very existence of 'C' schedule channel was disputed by the defendants, the report which had been collected through an advocate commissioner, ex parte, if it has to be acted upon, has to be proved by examining the advocate commissioner, R.S.A.NO.210/2005 12 for a proper and correct decision on the disputed questions involved in the suit and more so, to consider the entitlement of the decree applied for by the plaintiffs in the suit. The court below has rightly and correctly relied on Achuthan v. Kunjipathumma (1967 KLT 326) and Selin Joseph v. Vijayan (1993 KLT 898) to conclude that Exts.C2 and C3 prepared by the advocate commissioner in the present case have not been proved by examining the advocate commissioner where the report had been prepared behind the back of the defendants without notice to him, and as such, it cannot be acted upon to support the case canvassed by the plaintiffs. Previous commission report and sketch collected in the suit filed by the 1st plaintiff's mother, wherein also, the identical disputed questions have been canvassed, as rightly held by the lower appellate court, had to be eschewed from consideration where that suit had been dismissed as abated without accepting the materials collected by the commissioner in evidence. Examination of the advocate commissioner, who prepared such reports and sketch in the present case, as a witness, no doubt, would have been sufficient to accept them as evidence in the case, but that was R.S.A.NO.210/2005 13 not done. So, on the disputed questions involved in the suit, with respect to the existence of 'C' schedule other than the oral evidence tendered by the plaintiffs and also reliance placed on the recitals in Exts.A1 and A2, which have come into existence after the suit filed by the 1st plaintiff's mother, there was no material before the court. When such be the case, right of quasi easement for flow of water through an identifiable channel from 'A' schedule to 'B' schedule, or that of natural right of flow of surface water canvassed by the plaintiffs, as held by the lower appellate court, cannot be sustained in the incomplete data of evidence let in the case. 7. Strangely enough, though the plaintiffs have not canvassed for a declaration for natural right of flow of water from 'A' schedule to 'B' schedule, the trial court has declared that the plaintiffs have such a right to flow surface water from 'A' schedule to 'B' schedule. Plaintiffs had brought in some amendments to the plaint alleging of natural right of flow of water from 'A' schedule to 'B' schedule asserting it is a right of quasi easement enjoyed by them. However, the relief canvassed R.S.A.NO.210/2005 14 in the suit for mandatory and prohibitory injunction, it is seen, without any claim for declaring the natural right or quasi easement, remained as such without any modification. When that be so, the relief of declaration, which was granted to the plaintiffs by the trial court, which was not even asked for, and, further, which cannot be granted when the plaintiffs even failed to prove 'C' schedule channel despite challenge from the defendants disputing its very existence, was thoroughly improper and totally unsustainable. The decree of mandatory injunction and also the prohibitory injunction granted by the trial court on the basis of the commission reports prepared in the previous and also in the present suit, was rightly and correctly found unsustainable and interfered with by the lower appellate court, after re-appreciating the materials tendered with reference to the pleadings of the case. 8. Though the learned counsel for the appellants has relied on a number of authorities to contend that the plaintiffs have a natural right of flow of water from 'A' schedule to 'B' schedule, and so much so, the decree of mandatory and prohibitory R.S.A.NO.210/2005 15 injunction granted by the trial court has to be restored, in the given facts of the case, where the claim thereunder was set up as if it was enjoyed by the plaintiffs as a right of quasi easement, but, with no reliable evidence tendered to prove the existence of the 'C' schedule channel, I find advertance to those judicial pronouncements or its applicability is not called for in the present case. True, in the plaint, by bringing the amendment, the plaintiffs have contended that they have natural right of flow of surface water from 'A' schedule to 'B' schedule, but even that amendment brought in would indicate that such claim was made to sustain a case that they have by virtue of that natural right obtained a right of quasi easement for flow of water through 'C' schedule described in the plaint. When the very existence of 'C' schedule which was disputed was not proved by reliable evidence, no value or merit can be given to the claim of the plaintiffs that they have a natural right of flow of water from 'A' schedule solely for the reason that their property is situated on a higher level from that of the defendants property, 'B' schedule. Even assuming that the plaintiffs have a right of natural flow of water from 'A' schedule to 'B' schedule thereunder, and it is R.S.A.NO.210/2005 16 enjoyed by them as an incident of their ownership right, necessarily such a claim should be supported by necessary pleadings and, further, it is different from a claim of quasi easement for flow of water through a defined channel as had been canvassed by the plaintiffs in the present suit. Whereas a right to flow surface water by the owner of the upper land through the lower level of another is a natural right and can be claimed as incidental to the ownership of his property a claim of quasi easement stands on a different footing. To claim a right of quasi easement, as covered under Clauses (b), (d) and (f) of Section 13 of the Easements Act, certain specific conditions have to be satisfied. It must be pleaded and proved than an apparent and continuous easement which is necessary for the enjoyment of the dominant tenement, in the state in which it was enjoyed at the time when it was severed from the servient tenement, has been enjoyed by the claimant and there is threat of invasion or obstruction over such right. In the case of easement by necessity, covered by Clauses (a), (c) and (e) of Section 13 of Easements Act, the necessity involved is absolute, but in the case of quasi easement covered Clauses (b), (d) and (f) of the above R.S.A.NO.210/2005 17 Section of the Act, it is only a qualified necessity, without which the property may be enjoyable otherwise, but not enjoyable in the way it was enjoyed before. The difference between quasi easement and easement by necessity not requiring consideration in the above case, but, only that of quasi easement and natural right, no further dilation with regard to easement by necessity is called for. 9. The distinction between natural right and easement has been stated in Peacock on Easement (Law Relating to Easements in British India - Frederick Peacock - 3rd Edition Page 25) thus: “The essential distinction between easements and natural rights appears to lie in this that easements are acquired restrictions of the complete rights of property, or, to put it in another way, acquired rights abstracted from the ownership of one man and added to the ownership of another, whereas natural rights are themselves part of the complete rights of ownership, belong to the ordinary incidents of property and are ipso facto enforceable in law. R.S.A.NO.210/2005 18 Natural rights are themselves subject to restriction at the instance of easements.” Whereas an easement is a specific right subtracted from general rights constituting ownership on one's property and attached to the ownership of another property, it is a restriction of a natural right. Natural right is an incident of ownership of property as distinct from a claim of quasi easement. A natural right with necessary particulars has to be pleaded and proved to seek any relief thereunder. The fact that the plaintiffs, by amendment canvassed a case that they have a natural right to flow surface water, which in fact, was stated to sustain the claim of quasi easement for flow of water through 'C' schedule, has no way improved their case nor support the decree of declaration granted in their favour by the trial court, which was not even asked for in the suit. No question of law leave alone any substantial question of law is involved in the appeal and the dismissal of the suit by the lower appellate court reversing the decree of the trial court, in the given facts of the case, is fully justifiable. R.S.A.NO.210/2005 19 The appeal is devoid of any merit, and it is dismissed directing both sides to suffer their costs. S.S.SATHEESACHANDRAN JUDGE prp