IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 4TH MARCH 2010 / 13TH PHALGUNA 1931 RSA.No. 447 of 2008() --------------------- AS.350/2001 of I ADDL. DISTRICT COURT, PALAKKAD OS.68/1996 of MUNSIFF COURT, CHITTUR .................... APPELLANTS/APPELLANTS/PLAINTIFFS ---------------------------------------------------- 1. KAMALAMMAL, W/O.KRISHNA MUDALIYAR, KUNNATHU PALAYAM, CHITTUR VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. 2. KRISHNA MUDALIYAR, S/O.NINAN MUTHALIYAR, KUNNATHU PALAYAM, CHITTUR VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.P.N.KRISHNANKUTTY ACHAN, SENIOR ADVOCATE SRI.K.MOHANAKANNAN SMT.M.A.ZOHRA RESPONDENTS/ RESPONDENTS/DEFENDANTS 2 TO 10 --------------------------------------------- 1. SMT.JANAKI, W/O.KRISHNAN, NADUKKALAM, CHITTUR VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. 2. RAJENDRAN, S/O.KRISHNAN, NADUKKALAM CHITTUR VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. 3. VASU, S/O.PAZHANIMALA, NADUKKALAM, CHITTUR VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. 4. KUMARAN, S/O.PAZHANIMALA, NADUKKALAM CHITTUR VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. 5. MANI, S/O.PAZHANIMALA, NADUKKALAM CHITTUR VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. 6. BHARGAVI, W/O.VASU, NADUKKALAM, CHITTUR VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. 7. VISALAKSHI, W/O.KUMARAN, NADUKKALAM CHITTUR VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. 8. RAVINDRAN, S/O.KUMARAN, NADUKKALAM CHITTUR VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. 9. CHANDRAN, S/O.KRISHNAN, NADUKKALAM CHITTUR VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE FOR R6-7 SRI.T.C.SURESH MENON FOR R6-7 SRI.JIBU P THOMAS FOR R6-7 SRI.P.S.APPU FOR R6-7 SRI.K.GOPALAKRISHNA KURUP FOR R1-2,4-5,& 8-9 SMT.K.DEEPA (PAYYANUR) FOR R1-2,4-5,& 8-9 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.447 of 2008 --------------------------------------- Dated this 04th day of March, 2010 JUDGMENT As the averments and reliefs sought for in the plaint as it stood before its amendment as per order dated 18-07-2001 on I.A.No.711 of 2001 and the contentions in the written statement reveal the litigation when it started in the year 1996 was one for a declaration of title and possession which appellant claimed over the disputed bund (called by the appellants as 'Thadayavaramba' while according to the respondents it is the 'erivaramba' or 'Melayavaramba' on the strength of Exts.A1, assignment deed No.1049 of 1973. They claimed that the said bund situated on the western side of the paddy field formed part of the paddy field admittedly belonging to them as per Ext.A1, assignment deed and has been in their possession and enjoyment. Respondents have their paddy field on the west of the said bund situated at a lower level. While so, respondents unauthorisedly planted coconut saplings on the said bund on 09-11-1995 infringing the proprietary title and possession of appellants. Hence they sued for declaration of their title and possession of the said bund and for mandatory injunction to direct respondents to remove the plants allegedly planted by them on it. There was also a prayer for prohibitory injunction against further such unauthorised acts on the R.S.A.No.447 of 2008 2 said bund. Respondents resisted the suit contending that disputed bund is not thadayavaramba as claimed by the appellants, nor did it form part of Ext.A1, assignment deed in their favour. According to the respondents, the disputed bund is the 'erivaramba' forming eastern portion of their paddy field and comprised in survey No.2126/1. It is further contended that the said bund, 'erivaramba' or 'melayavaramba' as the respondents call it was meant for storage of water in their paddy field for irrigating the rest of their paddy fields. Alternatively, a claim of adverse possession and limitation was also raised. The trial court found that appellants failed to prove their title and possession of the disputed bund and dismissed the suit. Consequently the suit was dismissed. Appellants took up the matter in appeal (A.S.No.160 of 1997). Learned District Judge was of the view that a remand of case is required to enable parties adduce further evidence. In the meantime some other developments took place leading to the learned District Judge calling for reports through an Advocate Commissioner (certified copies of which are marked in the trial court after remand as Ext.A3 series) and passing interim orders based on those reports (I shall be adverting that aspect a bit later). Learned District Judge vide judgment dated 17-02-1999 set aside judgment and decree of the trial court and remitted the case to that court to enable appellants get the property measured with the assistance of Taluk Surveyor. It was also directed that parties could adduce evidence with regard to possession of the R.S.A.No.447 of 2008 3 disputed bund and if appellants are entitled to any customary right over the said bund, they will be at liberty to substantiate the same as well. After the remand plaint was amended incorporating paragraph 2A to the effect that respondents destroyed the sluice which existed on the disputed bund which was being used by the appellants to discharge water from the paddy field belonging to them and situated on the upper level. The incorporated paragraph stated that for protection of the paddy field of appellants and the cultivation there, disputed bund is essential. The declaration prayed for which originally related to title and possession of the disputed bund was deleted and instead, a declaration that the disputed bund being the 'thadayavaramba' of the property of appellants is essential for protection and maintenance of the paddy fields of appellants as per local custom was prayed for. Respondents filed additional written statement consequent to that amendment denying the alleged customary right over the disputed bund and that there was any sluice on that bund through which appellants were discharging water to the paddy field of the respondents. At the instance of appellants an Advocate Commissioner again visited the properties and measured the same with the assistance of the Taluk Surveyor, Exts.C3 and C3(a) are the report and plan. Trial court after taking into consideration Exts.C3 and C3(a) and other evidence concluded that even as per the measurement of the properties made by the Taluk Surveyor with the R.S.A.No.447 of 2008 4 help of relevant documents the disputed bund did not form part of R.S.No.2119 in which alone appellants owned property. It was also found that the said bund formed part of property comprised in survey No.2126/1 in which respondents owned and possessed land. So far as custom pleaded by the appellants is concerned, trial court found against that plea in the absence of evidence. In paragraph 17 of the judgment trial court held that case of appellants that they were discharging water into the western paddy field of the respondents through the sluice which existed on the disputed bund is not acceptable in view of the evidence of even PWs.1 to 4 which revealed that flow of water from the paddy field of appellants was towards south into the Akampadam chal -through the sluice that existed on the south- west portion of the paddy field of the appellants. The consequence was a dismissal of the suit. Appellants took up the matter in appeal. Learned District Judge after a reappraisal of the evidence came to the same conclusion and confirmed judgment and decree of the trial court. Hence the second appeal. The following substantial question of law is framed for a decision: “whether, on the facts and evidence on record courts below grossly erred in not holding that appellants have right of customary easement to discharge water from the paddy field belonging to them to the lower field belonging to the respondents”. 2. It is contended by learned Senior Advocate appearing for R.S.A.No.447 of 2008 5 appellants that courts below have not given serious thought to the above contention of appellants. Learned Senior Advocate would contend that the courts below, it would appear had a misimpression about the plea raised by appellants when they stated that they have right over the disputed bund as per the local custom. Learned Senior Advocate would explain that 'thadayavaramba' as per local usage meant, a bund which is required for the protection of the upper paddy field which included discharge of excess water from that field which fact was lost sight of by the courts below. Learned Senior Advocate would place reliance on the decision of the Supreme Court in Gopalankutty Nair & Ors. Vs. Kunhirama Tharakan & Ors. (2000 SAR (Civil) 346). My attention is drawn to the observations in paragraph 10 of the judgment. It is also argued by the learned Senior Advocate that if at all this court finds that plea raised by the appellants as to customary easement is not sufficient appellants may be given an opportunity to incorporate appropriate plea in that regard and adduce evidence. Learned counsel appearing for respondents would contend that even after amendment of plaint as aforesaid, main contention advanced by the appellants related to ownership and possession of the disputed bund though, a faint plea is made in paragraph 2A that there was a sluice on the disputed bund through which appellants were discharging water from their field but, no plea regarding customary easement was made, not to say about lack of evidence in support of R.S.A.No.447 of 2008 6 such a plea. My attention is also drawn to the grounds urged by the appellants in the memorandum of appeal filed before the first appellate court (after remand) where, except a mention that appellants had been discharging water into the lower paddy field of respondents through the sluice which (allegedly) existed on the disputed bund, the entire challenge to the judgment and decree of the trial court was regarding the finding on title and possession, be it on the strength of Ext.A1 or customary right which the appellants claimed. It is also pointed out by learned counsel for respondents that even if it is accepted that there is a plea of customary easement for discharge of water into the paddy field on the western side, evidence let in by the appellants negatived that plea and as such even a remand of the case cannot resurrect the case of appellants. 3. I referred to the circumstances in which suit was instituted its progress, dismissal and remand. I also referred to the amendment of the plaint and incorporation of paragraph 2A, deletion of relief (A) regarding declaration as to title and possession of the disputed bund based on Ext.A1, assignment deed and the amended declaration prayed for that the disputed bund belonged to the appellants as per custom prevailing among the agriculturists of the locality. Thus, even after the amendment what I can gather from the averments in the plaint in particular relief (A) as amended is that it is not a case of relief being sought for with respect to any customary easement to discharge R.S.A.No.447 of 2008 7 water but appellants again trying to keep up their claim of ownership and possession of the disputed bund on the strength of alleged customary right. A customary right,as distinguished from a customary easement is a public right annexed to the place in general and though arises from a custom is not attached to any dominant tenement for its existence. But a customary easement though has its roots in a valid custom, vest in the owner of a certain tenement called the dominant tenement and is not independent of that tenement as a customary right is (See Ram Chandra Sah Vs. Abdul Hannan & Ors. (AIR 1984 Patna 313), Narayani Vs. Govindan (1968 KLT 626) and Yohannan Samuel Vs. Mathew John and Another (1991(1) KLJ 605)). Hence a claim of ownership or possession as per a customary right cannot be converted into or treated as a plea of customary easement for discharge of excess water from the upper field. In this case, even the amended plaint does not admit title and/or possession of the disputed bund with the respondents and hence also I am unable to accept argument of learned Senior Advocate that what appellants intended by pleading custom is a right to discharge water, a customary easement. This view of mine is reinforced by the fact that even after amendment of the plaint appellants have been trying to keep up their plea of title and possession of the disputed bund by taking out a commission with the assistance of Taluk Surveyor to prove their claim that the disputed bund formed part of R.S.No.2119 in which appellants R.S.A.No.447 of 2008 8 claimed title by virtue of Ext.A1 and the various grounds urged in the memorandum of first appeal as well as arguments advanced before the learned District Judge in A.S.No.350 0f 2001. Going through the judgments under challenge except of course the trial court referring to the faint plea in paragraph 2A of the amended plaint that discharge of water was towards west through the sluice which existed on the disputed bund, entire argument advanced was regarding title and possession of the appellants over the disputed bund either as per Ext.A1 and, if that claim is not available in the light of Exts.C3 and C3 (a) then on the alleged custom. Hence, the contention that a plea of customary easement was very much in issue or as understood by the parties cannot be accepted. 4. I shall consider whether there is any scope for raising an argument about customary easement on the strength of what is stated in paragraph 2A of the plaint and the evidence on record. I stated that when the appeal was pending before the learned District Judge as A.S.No.167 of 1997 there were certain developments. Appellants moved I.A.No.1310 of 1997 seeking an order of temporary injunction to restrain respondents from altering the physical features of the suit property including the disputed bund and an order of injunction in that line was passed which since it was not further extended, expired by 14-11-1997. Appellants then filed I.A.No.1552 of 1997 for appointment of an Advocate Commissioner to inspect the disputed properties. That R.S.A.No.447 of 2008 9 Commissioner inspected the properties on 27-11-1997 and submitted his report dated 03-12-1997 (the c.c. of which is marked as Ext.A3). The Commissioner reported that mainly the water slope is from east to west though there is a small 'kaichal' on the southern side of the suit property. The Commissioner reported that without the bund on western side of the suit property appellants could not cultivate their land since the said bund is the main bund to store water (in the suit property). At the time of that inspection Commissioner found a spot on the disputed bund where appellants alleged, there was a sluice. The Commissioner saw a small portion filled up with new mud. Respondent No.4/defendant No.4 claimed that it was not a sluice but, a hole created by rats (Kallanpode) through which water flowed into the lower field belonging to them and the same was closed. He also told the Commissioner that there was no discharge of water from the suit property to the paddy field of respondents. Respondent No.4 showed the Commissioner a kaichal on the southern side of the suit property with a small sluice through which according to him water was being discharged into the Akampadam chal on the further south. The Commissioner noticed some stagnation of water near the disputed bund. In the light of that report learned District Judge directed respondents to restore the hole on the disputed bund which the appellants claimed was a sluice and the respondents maintained was a hole created by rats. That order was passed on I.A.No.988 of 1998. It R.S.A.No.447 of 2008 10 would appear that when the Advocate Commissioner attempted to comply with that order there was some commotion at the spot which necessitated Commissioner submitting report (its c.c. is Ext.A3(b)) seeking police assistance. Learned District Judge ordered police assistance and the hole or sluice, as the case may be on the disputed bund was restored. Ext.A3(c) is the c.c. of the report Advocate Commissioner filed in that regard. It is reported by Advocate commissioner in Exts.A3(b) that at the time of making an opening on the western bund small broken pieces of old mud sluice were seen. With that situation learned District Judge allowed the appeal and remanded the case to the trial court. 5. Now reliance is placed by learned Senior Advocate on Ext.A3 series to buttress his contention that appellants have been discharging water from their upper field to the lower field of the respondents. Learned Senior Advocate points out that Ext.A3(b) would show that at the time the destroyed sluice was opened by the Advocate Commissioner, he could find broken pieces of the mud sluice. Learned counsel for respondents would say that Ext.A3 series cannot be looked into for the reason that the Advocate Commissioner who prepared the same was not examined. But I do not find merit in that contention. An 'appeal' it is not disputed, is a continuation of original lis and it was when the matter was pending before the first appellate court that Commission was taken out and reports were obtained. R.S.A.No.447 of 2008 11 Commissioner inspected the properties with notice to the respondents. In such a situation, reports prepared by the Advocate Commissioner must be treated as evidence and as part of the record as provided under Order 26 Rule 10(2) of the Code. It made no difference that the reports were obtained when the matter was pending before the first appellate court. Moreover, certified copies of the reports were marked without objection as Exts.A3 series. But, what is relevant and admissible from Ext.A3 series is what the Commissioner found at the spot. If he has drawn any inference therefrom or formed any opinion from what he saw at the spot that cannot be said to be evidence. So far as the hole or sluice on the disputed bund is concerned, both sides have their own version as to how it occurred and without examining the Advocate Commissioner, it is not possible to hold either that it was a sluice as claimed by the appellants or a hole made by rats as contended by the respondents. I am also not impressed by the fact that Advocate Commissioner, in a subsequent inspection saw remnants of an old mud sluice at the site where the opening was made. It is not clear how those broken pieces had come there. There is no evidence that at that spot there was a sluice in existence or that the broken pieces could be that of the sluice which earlier existed. None of the earlier reports are helpful to hold so. 6. So far as evidence let in by the appellants is concerned, though it is their claim that disputed bund is 'thadayavaramba' R.S.A.No.447 of 2008 12 evidence in that regard is shabby, if not lacking. Even the evidence of PWs.1 to 4 would show that a portion of the lower field of respondents adjoining the suit property was being used to store water for irrigating the rest of the field and therefore that portion of the paddy field is called 'erikandam'. The witnesses examined by the appellants had no difficulty to tell the court that disputed bund was meant for protection of 'erikandam' and it is the 'melayavaramba' of 'erikandam' as claimed by the respondents. In the light of that evidence contention that disputed bund is 'thadayavaramaba' of the appellants cannot stand. 7. So far as discharge of water towards the lower field of respondents is concerned, evidence let in is, as I have just stated. Even the witnesses examined by the appellants before remand have stated that flow of water from the suit property was to the Akampadam chal on the south through a small sluice on the south-western portion of suit property. The Advocate Commissioner in Ext.C2 (obtained before remand) also has referred to the sluice on south-west portion of the suit property which has nothing to do with the disputed bund. Thus, evidence regarding discharge of water from the upper land belonging to the appellants to the lower land belonging to the respondents is also not sufficient. To sustain a claim of customary easement under section 18 of the Easements Act there must be evidence of a valid custom as referred to therein. No such evidence is let in. As such that contention also cannot stand. R.S.A.No.447 of 2008 13 8. So far as the request of learned Senior Advocate for remand is concerned, I must bear in mind that the litigation started in the year 1996 and one remand has already been obtained by the appellants. Then also, no attempt was made to make any specific plea regarding the alleged customary easement now put forward, not to say about the failure to adduce proper evidence supporting whatever plea that is already made. A remand in this case in my view is futile since evidence revealed that appellants have been discharging water towards south through the sluice which the Advocate Commissioner saw and reported in Ext.C2. As such after giving an anxious consideration of the prayer for remand I am constrained to refuse it. In the light of what I have stated above the substantial question of law framed is answered accordingly against the appellants. It follows that appellants are not entitled to the reliefs prayed for. All interim orders passed in this case will stand vacated. Resultantly the second appeal fails and it is dismissed. No cost. THOMAS P JOSEPH, JUDGE Sbna/