IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 19TH NOVEMBER 2008 / 28TH KARTHIKA 1930 RSA.No. 879 of 2008(D) ----------------------------- AS.13/2005 of SUB COURT, KASARAGOD OS.217/2004 of PRL.MUNSIFF, KASARAGOD .................... APPELLANTS/APPELLANTS/DEFENDANTS : --------------------------------------------------- 1. C.H.NARAYANA ADIGA, S/O.SHIVANNA ADIGA. 2. C.H.MURALIDHARAN S/O.C.H.NARAYANA ADIGA, BOTH ARE RESIDING AT CHATHANGAI IN KALNAD VILLAGE, KASARAGOD TALUK, P.O.CHANDRAGIRI. BY ADV. SRI.K.G.GOURI SANKAR RAI RESPONDENT/RESPONDENT/PLAINTIFF : ------------------------------------------------- NARAYANA KAYARTHAYA, S/O.SHREEDHARA KAYARTHAYA, RESIDING AT "SRI KRIPA", CHATHANGAI IN KALNAD VILLAGE, KASARAGOD TALUK, P.O.CHANDRAGIRI. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RSA.No. 879 of 2008(D) ORDER ON I.A.NO.2089 OF 2008 IN R.S.A.879 OF 2008 DISMISSED 19.11.2008 SD/- V.RAMKUMAR, JUDGE -TRUE COPY- P.A. TO JUDGE pac V.RAMKUMAR, J. ---------------------------------- R.S.A. No.879 OF 2008 ---------------------------------- Dated this the 19th day of November, 2008 JUDGMENT The defendants in O.S.217 of 2004 on the file of the Munsiff's Court, Kasargod are the appellants in this Second Appeal. The said suit filed by the respondent herein was one for a mandatory injunction directing the defendants to restore the water channel passing in between the items 1 and 2 of the plaint B schedule property to its original condition so as not to obstruct the free flow of water in the water channel with a view to prevent damage to the plaint A schedule property and for a perpetual injunction restraining the defendants from filling up the water channel. 2. The case of the plaintiff can be summarised as follows :- The plaintiff is the owner of the plaint A schedule property comprised in R.S.114/5 identified by the Advocate Commissioner as the green shaded plot in Ext.C2 plan. There is a water channel coming from the western side of the plaint A schedule property and passing in between item Nos. 1 and 2 R.S.A.879 of 2008 2 of plaint B schedule property belonging to the defendants and it proceed further. The said water channel has been in existence from time immememorial. The cause of action for the suit is the blocking of the said channel passing through the plaint B schedule property of the defendants by dumping stones etc. resulting in stagnation of water and consequent inundation of water in the plaint A schedule property. The defendants have no right to obstruct the free flow of water passing through the channel in the plaint B schedule property. The channel was blocked by the defendants on 07.06.2004 by dumping stones etc. They have no right to do so. Hence, the suit. 3. The suit was resisted by the defendants contending inter alia that the stagnation of water was not on account of any act attributable to the defendants that on account of the blockage of the channel coming from the western property belonging to one Khader the compound wall of the defendant collapsed resulting in the overflow of water, that barring the above episode, the defendants had not done any act of blocking the free flow of water through the water channel and R.S.A.879 of 2008 3 that the suit was liable to be dismissed. 4. The learned Munsiff deputed an Advocate Commissioner to inspect the property and submit a plan and report. The Advocate Commissioner submitted Ext.C1 report and Ext.C2 plan. Ext.C2 plan shows the plaint A schedule property as the green shaded plot comprised in R.S.114/5. Immediately to the south of the plaint A schedule property is the plaint B schedule property shown as the blue shaded plot. The plaint B schedule property consists of 2 items, the northern portion comprised in R.S.140/7 and the southern portion comprised in R.S.140/8. The water channel which comes from the west of the plaint A schedule property takes a turn towards south along the western boundary of the plaint A schedule property and after covering almost half the distance of the plaint B schedule property it enters the plaint B schedule property dividing item Nos. 1 and 2 into two. After passing eastwards through the plaint B schedule property it takes a turn towards north and then at about the boundary of the plaint A schedule along its eastern boundary it takes a turn towards east in between the properties comprised in R.S.114/3 R.S.A.879 of 2008 4 and 114/6. There is no dispute that flow of water is from west to east. The Commissioner noted 4 stones installed at 4 places in the channel passing through the plaint B schedule property belonging to the defendants. The Commissioner also noted the collapse of the western wall of the item No.1 of the plaint B schedule property and the consequence of the said episode was stagnation of water in the plaint A schedule property. 5. The trial court after considering the oral and documentary evidence including the report and plan of the Commissioner came to the conclusion that the grievance of the plaintiff was true and accordingly decreed the suit granting the mandatory as well as perpetual injunction as prayed for. On appeal preferred by the defendants as A.S.No.13 of 2005 before Sub Court, Kasargod the lower appellate court has also confirmed the decree passed by the trial court. Hence, this Second Appeal. 6. Learned counsel appearing for the appellants made the following submissions before me in support of the Appeal : Even though it was a water channel passing through several properties, with regard to that segment of the water R.S.A.879 of 2008 5 channel which passes through the plaint B schedule property belonging to the defendants, they are entitled to maintain the same by installing stones with a view to prevent soil erosion. The Commissioner has noted that the depth of the water channel in the plaint B schedule property is 1 ½ meters which is about 5 feet and the 4 stones installed by the defendants are only at a height of 1 foot. Such a stone cannot cause blockage of the channel resulting in inundation of water in the plaint A schedule property. The reason for the stagnation of water was due to the fall of the compound wall along the western boundary of the plaint B schedule item No.1. This is not the cause alleged in the plaint so as to entitle the plaintiff to a decree for mandatory or perpetual injunction. It was overlooking these aspects that the courts below granted decree to the plaintiff and such a decree is incapable of execution. 7. I cannot agree with the above submissions. It may be true that on account of the fall of the compound wall along the western boundary of item No.1 of plaint B schedule property there might have been breach of the water channel R.S.A.879 of 2008 6 resulting in stagnation of water. But that is said to be not the only cause attributable to the stagnation of the water in the property of the plaintiff which is located upstream. The 4 stones at 4 different locations in the plaint B schedule property was certainly causing a blockage of water and the explanation offered by the defendants that they were placed to prevent soil erosion has not been accepted by the courts below. The findings recorded by the courts below are pure findings of fact from which no question of law, much less, any substantial question of law arises for consideration. The questions of law formulated in the memorandum of appeal also do not arise for consideration in this Second Appeal which is accordingly dismissed in limine. V.RAMKUMAR, JUDGE pac