IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH WEDNESDAY, THE 26TH AUGUST 2009 / 4TH BHADRA 1931 SA.No. 2 of 1996(A) ----------------------------------- AS.39/1993 of SUB COURT, KASARAGOD OS.137/1984 of PRL.MUNSIFF, KASARAGOD .................... APPELLANT(S): APPELLANTS 1 TO 6 & 9 TO 12/DEFENDANTS 1, 3 TO 7 & 10 TO 13: ------------------------------------------------------------------------------------------------------ 1. VITTALA RAI, AGED 46 YEARS. 2. SMT. SHARADA, AGED 53 YEARS. 3. NARAYANA RAI, AGED 51 YEARS. 4. KRISHNA RAI, AGED 48 YEARS. 5. VISHWANATHA RAI, AGED 42 YEARS. 6. RAMANNA RAI, AGED 42 YEARS. 7. RATHI, AGED 35 YEARS. 8. VASANTHI, AGED 32 YEARS. 9. SMT. SUGANTHI, AGED 30 YEARS. 10. SUNDARI, AGED 72 YEARS. (APPELLANTS 1 TO 9 ARE THE CHILDREN OF THYAMPANNA RAI. APPELLANT NO.2 IS THE WIDOW OF DERANNA SHETTY. APPELLANT NO.10 IS THE WIDOW OF THYAMPANNA RAI. ALL ARE HINDUS, LANDHOLDERS, RESIDING AT KODUVANJI OF MULIYAR VILLAGE AND POST, KASARAGOD TALUK AND DISTRICT.) BY ADV. SRI.K.G.GOWRI SANKAR RAI S.A.NO. 2 OF 1996 RESPONDENT(S): RESPONDENT & APPELLANTS 7 & 8/PLAINTIFF & DEFENDANTS 8 AND 9. ------------------------------------------------------------------------------------------------ 1. M. NARAYANA NAIR, AGED 62 YEARS, S/O. KUNHAMBUNAIR, HINDU, LANDHOLDER, RESIDING AT KODUVANJI OF MULIYAR VILLAGE AND POST, KASARAGOD TALUK AND DISTRICT. 2. SANJEEVA RAI, AGED 40 YEARS, S/O.THYAMPANNA RAI, INDIAN ALLUMANIUM CO. LTD., KALWA, THANA DISTRICT, BOMBAY, MAHARASHTRA STATE. 3. K. BALAKRISHNA RAI, AGED 37 YEARS, S/O. THYAMPANNA RAI, A.T.S. P.B.NO.1081, AL-KHOBAR, 31952, K.S.A. R1 BY ADV. SRI.M.C.SEN, SENIOR ADVOCATE SRI.K.M.BALLAKKURAYA FOR R2 & R3 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 26/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH, J. -------------------------------------- S.A.NO. 2 OF 1996 A -------------------------------------- Dated this the 26th August, 2009 JUDGMENT Appellants are defendants 1, 3 to 7 and 10 to 13. The Suit was filed praying for a decree and judgment for the following reliefs: “(a): For a declaration that the plaintiff has got right of easement to lead water from thodu “T” situated in Government land in R.S. No.346 pt. of Muliyar Village through water channel “C” and through its portion C1 running through R.s.No.346 pt. belonging to the 1st defendant mentioned in the C Schedule to the plaintiff's property situated in R.s.No.350/3 which is a double crop paddy field wherein a portion of which the house H2 is situated and for a mandatory injunction to remove the obstruction “B” to the dimension of 3 feet long, 2 feet depth and 1 foot width caused by the defendants and restore the plaintiff's right to lead water through the C1 portion of the channel running through the defendant's property in R.S. No.346 pt. of Muliyar SA.NO.2/96 A 2 Village as before and consequently for a mandatory injunction to the defendants directing them to restore the channel to the statusquo ante removing the blockage put up by the defendants to obstruct the flow of water through the channel C through its C1 portion and on his failure to do so get the same done through an Officer of the court and by a perpetual injunction to restrain the defendants, their men and agents from repetition of any act calculated to obstruct the water through channel C.” The second prayer in the Suit has admittedly been given up before the trial court itself. Briefly put, the case of the plaintiff is as follows: Plaintiff has been in exclusive possession and enjoyment of plaint A schedule property and has been cultivating the same for the last twentyeight years. Prior to that, plaint A schedule property had been in the possession of the plaintiff's father for about fortyfive years, while plaint B schedule property has been in the possession for more than fifteen years cultivating the SA.NO.2/96 A 3 same. Plaint B schedule property originally Government land. They were reclaimed by the plaintiff's father about fortyfive years back, thereby he was raising first and second crops in the plaint A schedule property for more than twentyfive years by leading water from the thodu “T” flowing through R.S. No.346 of muliyur Village by means of irrigation channel “C”. The thodu “T” is having perennial water. It flows further through R.S. No.350/1 to the south and further its course diverts to the east. An Anakkettu “A” was constructed by the Government about 25 years ago across the thodu “T”. Plaintiff has been and prior to him, his father have been raising first and second crops in A schedule since more than sixty years, while 1st and 2nd crops were being raised in plaint B schedule properties since more than 45 years by leading water from thodu “T” through the Anakettu passing through R.S. No.346 and further through R.S.No.348/2 and ending at plaint A schedule property. It is further stated that the plaintiff and prior to him, his father have been raising 1st and 2nd crops in plaint A schedule property for SA.NO.2/96 A 4 the last sixty years and in plaint B schedule property since more than 45 years by leading water from the thodu “T” through channel “C” as of easement, openly and peaceably as of right without interruption. It is also stated that plaint B schedule item No.7 is an areca garden converted by the plaintiff which has also been irrigated from the water of thodu “T” by leading water through channel “C”. The allegation against the defendants was of blocking the flow of water through channel “C” by placing mud at point marked “B” in the channel “C”. It was alleged that the plaintiff has no other source of water to irrigate the paddy fields belonging to the plaintiff more fully described in the plaint A and B schedule properties. There are other allegations apparently related to prayer (b) which do not survive for consideration. 2. Appellants denied the allegations by filing a written statement. According to them, in short, the channel was not an irrigation channel, but was a rain water channel, in view of the topography of the area. The cultivation was denied. SA.NO.2/96 A 5 3. The learned trial Judge raised 17 Issues. Issue Nos.5, 9 and 10 were answered against the plaintiffs. The Issues read as follows: “5. Whether the plaintiff has been or is raising paddy crops in plaint A schedule property ? If so, whether the crop is raised by leading water from thodu T, as stated in the plaint ? 9. Whether the plaintiff has been using the A schedule property for raising paddy cultivation ? 10. Whether any portion of the B schedule property has been used for paddy cultivation ? If so, whether it is irrigated as stated in the plaint ?” The trial court, in short, found that the plaintiff has failed to prove his contention regarding the user of the properties for raising paddy cultivation. However, in regard to Issue No.11 which was as to whether the plaintiff is entitled to any easementary right for the user of water through the thodu “T” as stated in the plaint, the trial court, inter alia, took the following view: The Channel through C schedule property is found. The SA.NO.2/96 A 6 learned Trial Judge noticed that the plaintiff had not raised paddy cultivation in his properties. Thereafter, the admission of the defendant is taken note of that plaint A and B schedule properties contained areca garden and areca trees also require water, and that till the starting of rainy season, water is required for the areca garden also. It is also found that DW2 has deposed that the plaintiff is also using the water of the thodu for his properties. It is further noted that the defendants have a case that the plaintiff has other water sources. The Commissioner's Report regarding the tank being defunct and not in usable condition, has been considered. Then, it is stated that the prescriptive right cannot be taken away. It is noted in this context that the claim is by way of prescription and the right cannot be taken away because of the availability of other alternative sources, and that it is found that even if there exists a pond in the property of the plaintiff, he cannot be deprived of the right to draw the water of thodu “T”. Reference is made to the finding on Issue No.6 that through channel “C” water of the SA.NO.2/96 A 7 thodu “T” is diverted and it is a mamool one. On that basis, the court presumed that channel “C” must have an existence for a long time and thereby, the plaintiff and his predecessor must have acquired a right by prescription. On this basis, it was found that the plaintiff has prescribed the right of easement. 4. An Appeal was carried before the first appellate court. The first appellate court confirmed the findings. The plaintiff filed a Cross Objection before the first appellate court wherein, he contended that the finding by the trial court that there is no paddy cultivation is erroneous. The first appellate court dismissed the Appeal as also the Cross Objection. It was on this basis that this Second Appeal is filed. 5. I heard Shri K.G. Gowri Shankar Rai, learned counsel for the appellants and Shri M.C. Sen, learned senior counsel appearing for the respondents. 6. Learned counsel for the appellants would complain that the courts below have failed to consider the effect of the finding that there is no paddy cultivation. He laid emphasis on the SA.NO.2/96 A 8 specific pleadings raised by the plaintiff. He then referred me to prayer (a). He would then contend that both the trial court and the first appellate court have totally overlooked the pleadings in the plaint in decreeing the Suit. In other words, he would submit that when it is found by the courts below that the case of the plaintiff was that there was paddy cultivation in plaint A schedule property, could not be believed, it is inconceivable as to how the courts could have granted decree when what was claimed is a right of easement to draw water from the thodu “T” through plaint C schedule leading upto plaint A schedule, for the purpose of raising first and second crops. There is no dispute that reference to raising first and second crops is only with reference to paddy cultivation. When the very purpose of the cultivation is found to be not only questionable, but non- existent, learned counsel for the appellants raises the question as to how the courts below could have granted a relief, particularly with relief is sought on the basis of right by way of prescription. He would further point out that the manner in which Issue No.11 SA.NO.2/96 A 9 is answered would show that the court would appear to decide the case of prescription by way of an assumption. No doubt, the court found that it is an irrigational channel and not a rain water channel. But, to come to the conclusion that thereby the plaintiff has established a right of easement by way of prescription, he would submit that it was not justifiable. Learned counsel for the appellants would point out that the anakettu was defunct and, therefore, the case of the plaintiff that water was being used as alleged could not be believed. 7. The substantial questions of law which are pressed before me are (i), (ii) and (v) which are as follows: “(i) Whether the plaintiff has proved uninterrupted user of the water of channel C for a required period of time, i.e. the alleged user within two years prior to the suit ? (ii) Whether the courts below are correct in holding that the plaintiff has acquired a right of easement, especially in view of the admitted case that the Anicut was not functioning since date of its construction, which was unable to conserve water due to its faulty construction of the Anicut which SA.NO.2/96 A 10 was admittedly constructed 30 years ago, and no water was stored in it ever since then ? (v) Whether judgments of the courts below are opposed to Section 15 of the Easements Act ?” 8. Learned senior counsel for the plaintiff would contend that the plaintiff had raised a Cross Objection challenging the correctness of the finding that there is no paddy cultivation. He would submit that it is true that the first appellate court has rejected the Cross Objection. But, he would submit that even in a Second Appeal, it will be open to him being respondent, to invoke the provisions of Order 41 Rule 22 and challenge the correctness of the finding. In other words, he would submit that on the basis of the materials on record, both the courts below ought to have found that there was indeed paddy cultivation. He would also submit that when the right is sought in respect of plaint A schedule property, a portion may be cultivated with areca trees, but as long as the right of easement to draw water from the thodu is established, it may not matter much that portion of the same is cultivated with areca trees. Learned SA.NO.2/96 A 11 counsel for the appellants would first of all remind me that this is a Second Appeal and it may not be open for the first respondent/plaintiff to impugn the findings of fact without filing an Appeal against the judgment of the first appellate court. In this context, he points out that consequent upon the decision of the first appellate court discountenancing the contentions in the Cross Objection, a Decree ensued and it is not like any other case where it may be open to a respondent to support the decree by challenging the findings rendered against him by the lower court without Cross Objection being filed. In this context, he relied upon the Judgment in Mushtaq Hussain v. Hakim Mohammad Hassan Khan and Another (AIR 1933 Lahore 961). Therein, the learned Single Judge of the said Court took the view that an order dismissing the Cross Objection would amount to a Decree within the meaning of Section 2(2), if it had been embodied the decree as it ordinarily is. In Superintending Engineer and Others v. B. Subba Reddy (AIR 1999 SC 1747), the Court was considering an Appeal under Section 39 of the SA.NO.2/96 A 12 Arbitration Act, 1940. The question was regarding the competency of a Cross Objection in an Appeal under Section 39. The Court, inter alia, held as follows: “24. From the examination of these judgments and the provisions of S. 41 of the Act and Order 41, Rule 22 of the Code, in our view, following principles emerge: (1) Appeal is a substantive right. It is creation of the statute. Right to appeal does not exist unless it is specifically conferred. (2) Cross-objection is like an appeal. It has all the trappings of an appeal. It is filed in the form of memorandum and the provisions of Rule 1 of Order 41 of the Code, so far as these relate to the form and contents of the memorandum of appeal apply to cross-objection as well. (3) Court-fee is payable on cross-objection like that on the memorandum of appeal. Provisions relating to appeals by indigent person also apply to cross-objection. (4) Even where the appeal is withdrawn or is dismissed for default, cross-objection may nevertheless be heard and determined. SA.NO.2/96 A 13 (5) Respondent even though he has not appealed may support the decree on any other ground, but if wants to modify it, he has to file cross-objection to the decree which objections he could have taken earlier by filing an appeal. Time for filing objection which is in the nature of appeal is extended by one month after service of notice on him of the day fixed for hearing the appeal. This time could also be extended by the Court like in appeal. (6) Cross-objection is nothing but an appeal, a cross-appeal at that. It may be that the respondent wanted to give quietus to whole litigation by his accepting the judgment and decree or order even if it was partly against his interest. When, however, the other party challenged the same by filing an appeal statute gave the respondent a second chance to file an appeal by way of cross-objection if he still felt aggrieved by the judgment and decree or order.” Learned counsel for the appellants would emphasize the aspect of the finding that a Cross Objection is like an appeal and it has got all the trappings of an Appeal. Therefrom, he would appear SA.NO.2/96 A 14 to deduce the principle that being an Appeal, it resulted in a Decree and the decree remains unchallenged by the process known to law, namely by filing an Appeal and in this case a Second Appeal. It is not open to the plaintiff to extricate himself from the position obtaining as a result of the findings rendered by the trial court as confirmed by the first appellate court, it is contended. 9. Learned senior counsel for the plaintiff would refer me to the decision of the Division Bench in M/s. Tide Water Oil Company (India) Ltd. v. K.D. Banerjee (AIR 1982 Calcutta 127). That was a Civil Miscellaneous Appeal and he would point out that the decision is an authority for the proposition that even in a Civil Miscellaneous Appeal, it is open to the respondent to challenge the finding rendered against him so far as it is necessary for supporting the Decree. He would also point out that under the Cross Objection filed by him before the first appellate court, he has not sought any additional relief. All that he has done is to challenge the findings against him. SA.NO.2/96 A 15 10. Learned senior counsel for the respondent/plaintiff would point out the evidence in this case which he enlisted in support of the point that there was indeed cultivation of paddy in plaint A schedule property. In the chief examination of the plaintiff, he would say that there was paddy cultivation. But, when it came to the cross examination, the plaintiff would say as follows: “I do not remember the last years in which I raised paddy crop. It was before the causing of the obstruction. I cannot also say how many years ago I raised paddy in R.S. No.350/3 lastly. I deny that i have not raised paddy in R.S. No.350/3 at any time.” Learned senior counsel would not appear to seriously dispute that apart from the statement of the plaintiff in the chief examination, there is no material available to show that there was any cultivation of paddy. Therefore, this is a case where essentially the evidence regarding paddy cultivation consists of the deposition of PW1, the plaintiff alone and when considers the stand revealed in the cross-examination, it is clear that the SA.NO.2/96 A 16 view taken by the trial court as also the first appellate court is a possible view. By no stretch of imagination can it be characterised as perverse view. Even assuming for a moment that I could go into the question and find there was paddy cultivation in plaint A schedule without there being an independent Appeal, I would think that it is clear that there is no merit in the said contention. 11. If I proceed on the basis that there was no paddy cultivation, then I must refer to the pleadings to address the complaint raised by the learned counsel for the appellants regarding the decree being in the teeth of specific pleadings and the unambiguous nature of the prayer which followed the pleadings. In paragraph 5 of the pleadings, it is stated as follows: “5. It is submitted that the plaintiff and prior to him his father have been raising 1st and 2nd crop in the plaint “A” schedule for the last more than 60 years while in the plaint “B” schedule properties since more than 45 years by leading water from thodu “T” through channel “C” as of SA.NO.2/96 A 17 easement, openly and peaceably as of right without interruption. That channel “C1” is the common irrigation channel for irrigating and raising 1st and 2nd crop in the plaint “A” and “B” schedule. The plaint “B” schedule item No.7 is an areca garden converted by the plaintiff which has been also irrigated from the water of thodu “T” by leading water through channel “C”. It may be true that Dws.1 and 2 have in their deposition admitted that there is areca nut cultivation. Defendants have a case that there is an alternative source of irrigating the areca nut cultivation. The pleadings in the plaint would give the following picture: Plaintiff sets up a case of double crop cultivation (paddy cultivation) in plaint A and B schedule properties. He has a specific pleading in respect of B schedule property, namely that a portion of it was being cultivated with areca nut. The prayer (a) in the Suit is in respect of cultivating plaint A schedule with paddy with the aid of water drawn from the thodu “T”. There is absolutely no reference in the prayer about an easement by SA.NO.2/96 A 18 drawing water from the thodu for cultivating areca nut. There is no plea at all in the plaint that water is being drawn from the thodu “T” as a matter of easementary right by prescription for the purpose of cultivating any areca nut in plaint A schedule property. When there was no pleading in the plaint regarding cultivation of any portion of plaint A schedule which was planted with areca trees by using water from the thodu “T” through the channel in question, I think it was not open to the courts below to grant relief after having found that there is no paddy cultivation in A schedule. What is integral to the establishment of the right would be the fact of drawing water for the purpose of carrying on paddy cultivation in the facts of this case. 12. I find that the finding of the trial court that a presumption could be drawn that channel C must have been in existence for a long time and thereby the plaintiff and his predecessor in interest must have acquired a right of prescription upon plaint A schedule and viewed in the same, it was found SA.NO.2/96 A 19 that the plaintiff has prescribed the right of easement is palpably unsustainable. The right of easement by prescription is a precarious right and the burden is heavy on the plaintiff who alleges the right by prescription. I would think that in the facts of this case and on the basis of the admitted pleadings and the findings by the trial court as confirmed by the first appellate court, this is a case where the plaintiff has failed to establish the existence of a right of easement by prescription and the Suit ought to have been dismissed. In such circumstances, the Second Appeal is allowed and the decree and judgment are set aside. The parties are to bear their respective costs in this Appeal. Sd/= K. M. JOSEPH, JUDGE kbk. // True Copy // PS to Judge SA.NO.2/96 A 20 K. M. JOSEPH, J. S.A.NO. 2 OF 1996 A JUDGMENT 26th August, 2009.