IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 20TH OCTOBER 2010 / 28TH ASWINA 1932 RSA.No. 583 of 2010() --------------------- AS.215/2002 of ADDL. DISTRICT COURT (FAST TRACK II), PALAKKAD OS.385/1999 of MUNSIFF COURT, ALATHUR .................... APPELLANT/PLAINTIFF --------------------------------------- ABOOBACKER RAWTHER, S/O.KHADER RAWTHER, RESIDING AT PUNNARKUZHI, KUTHANUR AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU SRI.A.R.NIMOD SRI.C.A.ANOOP RESPONDENT(S): RESPONDENTS/DEFENDANTS ------------------------------------- 1. VELAYUDHAN, S/O.PAZHANIANDI. 2. MANI, S/O.VELAYUDHAN. 3. VASU, S/O.NAKU. RESPONDENTS 1 TO 3 ARE RESIDING AT KARINJHATHODE, KUTHANUR AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. 4. CHINNA, S/O.PAZHANAN. 5. VELLA, W/O.CHINNAN. 6. KANDAMUTHU, S/O.AYYAMUTHU. 7. AANDI, S/O.THEETHI. 8. VELLAKUTTY, S/O.NAKUNNI. 9. R.VELLA, S/O.RAMAN RESPONDENTS 4 TO 9 ARE RESIDING AT KARINJHATHODE, CHIMBUKKADU, KUTHANUR AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 20/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J -------------------------------------- R.S.A No.583 OF 2010 -------------------------------- Dated this the 20th day of October 2010 JUDGMENT Plaintiff in a suit for injunction is the appellant. Concurrent decision rendered by the two courts below holding that he is not entitled to the discretionary relief is challenged in the appeal. The suit, initially filed against the defendants impleading them in their individual capacity, it appears, was later converted as a representative suit seeking permission to sue the defendants as the representatives of the general public in the locality. The gist of the case set up by the plaintiff for the relief of injunction against the defendants, who were sued in a representative capacity as indicated above, was that they have no right over the plaint property, but, taking advantage of a previous permission accorded by the plaintiff to take bath in a pond situate in the property, they are making attempts to bath cattles also in the pond. The defendants also made attempts to demolish the fence of the pond with the malafide intend to bath their cattle, and, if they are permitted to bath their cattle in the pond, it would pollute the water in the pond, according to the plaintiff. So, the suit was laid to restrain the defendants from bathing their cattle in the pond or causing any destruction to the fence put up beside the pond. The defendants filed a joint written R.S.A No.583 OF 2010 - 2 - statement contending that they have been in enjoyment of the pond for their bath and also of the cattles, for the last more than 60 years. The owners of the property comprising the pond had dedicated it for the use of general public and there is also a deity installed near the pond was their case. They further contended that the public used to bath cattle in the pond and pray to the diety with the cattles. The fence put up around the pond, according to the defendants, was the subject matter of a proceeding before the Sub Divitional Magistrate and as per the orders issued by that Magistrate, plaintiff had removed the fence. Entitlement of the plaintiff to seek the discretionary relief of injunction canvassed in the suit was challenged by the defendants contending that the suit is devoid of any merit. The trial court, on the materials placed, which consisted of the evidence as PW1 and Exts.A1 to Ext.A5 series for the plaintiff, DW1 and DW2 for the defendants and C1 report and C1 (a) plan prepared by a commissioner, arriving at the conclusion that the plaintiff is not entitled to the discretionary relief of injunction, dismissed the suit. The appeal preferred by the plaintiff challenging the dismissal of his suit was turned down by the lower appellate court concurring with the conclusion drawn by the trial court. Concurrent decision rendered by the two courts below is challenged in this appeal, by the plaintiff. R.S.A No.583 OF 2010 - 3 - 2. I heard the learned counsel for the plaintiff. It was urged before me by the learned counsel that though the defendants had claimed of customary right of easement to bath, and also to bath cattles, in the pond situate in the plaint property, they have not substantiated that claim and, further, the essential material particulars required to prove that claim are also absent in their written statement. Both the courts below, overlooking that material aspect, negatived the claim of injunction on a wrong and erroneous appreciation of the evidence forming a conclusion that the public in the locality have an indefeasible right to bath and also to wash cattles in the pond, according to the counsel. No documentary material was produced by the defendant other than examining two witnesses to substantiate the defense pleaded as to the enjoyment of the pond by way of customary right of easement or dedication to the public by the previous owners and as such both the courts should have found such defense as meritless is the submission of the counsel. The learned counsel also submitted that the relief now claimed for the appellant is limited so as to have a restrictive order against the defendants from making use of the pond for washing cattles, and that alone, though much larger reliefs had been canvassed in the suit. R.S.A No.583 OF 2010 - 4 - 3. After going through the judgments rendered by the trial court and also the lower appellate court with reference to the submissions made by the counsel for the appellant/plaintiff, I find no substantial question of law leave alone any substantial question of law emerge for consideration, and what is attempted to be canvassed in the second appeal is only findings on disputed facts which cannot be permitted to having regard to the interdiction placed under sub Section (1) of Section 100 of the Code of Civil Procedure. Needless to point out, when the appellant/plaintiff has applied for the decree of injunction, the burden is squarely on him to prove his entitlement thereof. The defense canvassed by the defendants, even if it is found to have been not fully established by the materials tendered, will not come to the aid of the plaintiff to sustain the injunction applied for. Defendants have not established the customary right of easement or dedication of the pond for the use of the public by the previous owners, and, at the best, they have only shown that the pond is being used by the public, is not of much significance. In this context, it may be appropriate to take note of the decision in “Krishna Pillai v Kunju Pillai” (1990(1) KLT 136) wherein it has been pointed out that to resist the claim of a declaration or enforcible claim, there is no need to raise a counter claim by setting up a defense and substantiating such defense. R.S.A No.583 OF 2010 - 5 - Even an inchoate right which is at the stage of user alone without having matured into a full right can also be set up as a defense and in a deserving case invasion against that right within the limits of law will be protected by the court. In the given facts of the case, where it is shown that the fence put up around the pond was removed by the plaintiff under the order of the Sub Additional Magistrate in a previous proceeding between the parties, the assertion of right over the pond by the plaintiff as against the general public with a case that they are attempting to demolish the fence, is a tell tale circumstance which would go a long way in showing that the discretionary relief claimed by the plaintiff was not available to him. There is no merit in the appeal, and no interference with the concurrent decision rendered by the courts below is called for. Learned counsel for the appellant wanted this court to make an observation reserving his right to seek appropriate relief over the plaint property on the strength of his title. In fact, no such observation is required, as the plaintiff, if he has got title over the property, can claim appropriate relief before appropriate forum as provided by law. Appeal is dismissed. Sd/- S.S.SATHEESACHANDRAN vdv //True Copy// JUDGE