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. 821 of 1999(F) --------------------- AS.7/1995 of ADDL. DISTRICT COURT, NORTH PARAVUR OS.326/1992 of MUNSIFF COURT, NORTH PARAVUR .................... APPELLANT/APPELLANT/PLAINTIFF: -------------- ABDUL SATHAR HAJI MOOSA SAIT DHARMASTHAPANAM, REPRESENTED BY ITS MANAGING TRUSTEE ADHAM ABUBACKER SAIT, HOUSE NO,39/287, PULLEPPADY, CHITTOOR ROAD, KOCHI. BY SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE RESPONDENT(S): --------------- 1 KUNJUNNI S/O KURUMBAN, PADANNATHARA, SATHAR ISLAND, VADAKKEKKARA VILLAGE, NORTH PARAVUR. 2. ANTONY S/O MICHEL, PALAYAM VEETTIL, SATHAR ISLAND, VADAKKEKKARA VILLAGE, NORTH PARAVUR. 3. LATHIKA D/O KUTTAPPAN, NELIMMATHARA, VADAKKEKARA VILLAGE, NORTH PARAVUR R1 TO R3 BY ADV. SRI K.R. SACHIDANANDAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: kkj P.BHAVADASAN, J. ------------------------------------- SA No.821 of 1999 ------------------------------------- Dated this the 22nd day of July 2011 Judgment The plaintiff, who lost OS No.326/92 before the Munsiff's Court, North Paravur, is the appellant. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The plaint allegation is that the defendants are reclaiming a portion of the river puramboke on the northern side of the island, which belongs to the plaintiff. If such a reclamation is made, the same will affect the rights of the plaintiff to have water frontage from all points. The defendants have no manner of right over the river abutting the island. On the above allegations, the suit was laid, for prohibitory and mandatory injunction, restraining the defendants from making any reclamation. 3. The defendants resisted the suit by filing a written statement. It was pointed out by the defendants 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. They denied the plaint allegations and contended that they have no intention 2 SA No.821 of 1999 to reclaim any portion of the puramboke land. On the above contentions, the defendants prayed for dismissal of the suit. 4. 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 defendants by the Government, the plaintiff can approach the Government against the alleged encroachment by the defendants. Finding that there is no acceptable evidence to show that the alleged reclamation is done by the defendants, the suit was dismissed. 5. The aggrieved plaintiff carried the matter in appeal in AS No.7/95 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 ? 3 SA No.821 of 1999 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? 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 defendants. The courts below have not properly considered the contentions raised by the appellant. 8. 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 : 4 SA No.821 of 1999 “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. 9. On going through the judgments and decree of the courts 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 point of his land abutting the river and the defendants cannot cause any obstruction to the same. 5 SA No.821 of 1999 Moreover, the act of the defendants complained of 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 appeal as expeditiously as possible, at any rate, within a period of four months from the date of appearance of parties before court. Forward a copy of the judgment directly to the lower appellate court. P.Bhavadasan, Judge kkj 6 SA No.821 of 1999