IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 22ND JULY 2011 / 31ST ASHADHA 1933 SA.No. 823 of 1999(F) --------------------- AS.8/1995 of ADDL. DISTRICT COURT, NORTH PARAVUR OS.627/1992 of MUNSIFF COURT,NORTH PARAVUR .................... APPELLANT/APPELLANT/PLAINTIFF: -------------- ABDUL SATHAR HAJI MOOSA SAIT, DHARMASTAPANAM, REPRESENTED BY ITS MANAGING TRUSTEE A.S. ABDUL KAREEM SAIT, HOUSE NO.39/287, PULLEPPADY, KOCHI-18 BY SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE RESPONDENT/RESPONDENT/DEFENDANT --------------- KUNJAMMA W/O GEORGE, PUTHENPURACKAL, SAITH ISLAND, MOOTHAKUNNAM, NORTH PARAVUR. BY ADVS SRI.SUNIL THOMAS,SRI.JOJI SUNIL & SMT.A.K.RANI THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22/07/2011, THE COURT ON THE SAME DAY DELIVERED FOLLOWING: kkj P.BHAVADASAN, J. ------------------------------------- SA No.823 of 1999 ------------------------------------- Dated this the 22nd day of July 2011 Judgment The plaintiff, who lost before the courts below is the appellant. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The suit was one for prohibitory and mandatory injunction. The plaintiff is a charitable institution and is in possession of an island having an extent of 154 acres of land planted with coconut trees. The island is divided into 12 blocks for the purpose of administration, management and manuring etc. Each block is entrusted with and is under the care of people recognised as 'kavalkars' who were formerly the kudikidappukars. The defendant is one such kudikidappukari. The plaint allegation is that the defendant started to reclaim the river puramboke portion on the northern side of the island. If such a reclamation is done, the same will affect the rights of the plaintiff to have water frontage from all points. The defendant has no manner of right over the river abutting the island. On the above allegations, the suit was laid, for prohibitory and 2 SA No.823 of 1999 mandatory injunction, restraining the defendant from making any reclamation. 3. The defendant resisted the suit by filing a written statement. It was pointed out by the defendant that, earlier, the plaintiff had instituted a suit for the very same relief and it was dismissed holding that the plaintiff has no manner of right over the river puramboke. She denied the plaint allegations and contended that she has no intention to reclaim any portion of the puramboke land. On the above contentions, the defendant prayed for dismissal of the suit. 4. On the pleadings, the trial court raised necessary issues for consideration. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A3 from the side of the plaintiff. The defendant had Exts.B1 and B2 marked. Exts.C1 and C1 (a) commissioner's report and plan were also marked. 5. The trial court, on an evaluation of the evidence on record, held that since the portion of the river puramboke is not yet assigned to the defendant by the Government, the plaintiff can approach the Government against the alleged encroachment by the 3 SA No.823 of 1999 defendant. Finding that there is no acceptable evidence to show that the alleged reclamation is done by the defendant, the suit was dismissed. The aggrieved plaintiff carried the matter in appeal in AS No.8/95 before the District Court, North Paravur. The lower appellate court concurred with the trial court and dismissed the appeal. Hence the second appeal. 6. Notice is seen issued on the following questions of law raised in the second appeal : 1. Whether the proprietor of immovable property is entitled to have the natural river water, which flow through his property uninterrupted as a right under Section 7 of the Easement Act ? 2. Whether the respondents are entitled to or permissible to reduce or alter quantity, direction of water flow which flows touching the land of the appellant by reclaiming a portion of the same, under Section 7 of the Easement Act ? 3. Whether the owner of the land has got a natural right to have access to the river portion of the land uninterrupted or obstructed by anybody and if his right is obstructed, he can seek for injunction? 4 SA No.823 of 1999 7. The learned counsel for the appellant pointed out that the courts below are in error in holding that the appellant has no right over the adjoining river area. The case of the appellant was that he had right of access from every points to the river portion which cannot be interfered with by the defendant. The courts below have not properly considered the contentions raised by the appellant. The learned counsel for the appellant relied on the decision reported in Vavvakkavu Muslim Thaikkavupally v. Narayanan Purushan (1991(2) KLT 477) wherein it was held as follows : “The owner of land is not a necessary party to the suit so long as none of the parties to the suit have claimed any right specifically against the owner.” The learned counsel contended that in the light of the above decision, the suit could not have been dismissed because the State is not a party. The learned counsel pointed out that both the grounds relied on by the courts below to non-suit the plaintiff are unsustainable in law. 8. On going through the judgments and decree of the courts 5 SA No.823 of 1999 below, there seems to be some force in the submissions of the learned counsel for the appellant. The courts below are not justified in coming to the conclusion that the reclaimed portion is only negligible when compared to the vast extent of island and that the plaintiff must establish existence of a right and infringement of the same for a decree or permanent prohibitory injunction. The right pleaded by the plaintiff is not at all considered. The plaintiff's main case is that he has a right of direct access to the river from every part of his land abutting the river and the defendant cannot cause any obstruction to the same. Moreover, the act of the defendant complained off too is illegal. Both the courts below have not tried to evaluate the rights pleaded by the plaintiff. In the result, this appeal is allowed. The judgment and decree of the courts below are set aside and the matter is remanded to the lower appellate court for fresh consideration on merits in accordance with law and in the light of what has been stated above. The parties shall appear before the lower appellate court on 16.08.2011. The lower appellate court may make every endeavour to dispose of the 6 SA No.823 of 1999 appeal as expeditiously as possible, at any rate, within a period of four months from the date of appearance of parties before court. P.Bhavadasan, Judge jli