IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 21ST JULY 2010 / 30TH ASHADHA 1932 RSA.No. 128 of 2006() ------------------------------- AS.165/2004 of ADDL. DISTRICT COURT, N.PARAVUR OS.538/2000 of MUNSIFF COURT, PARAVUR .................... APPELLANTS/RESPONDENT/DEFENDANTS. ----------------------------------------------------------------- 1. THOMAS, S/O.AUGUSTHY, KELANGAKATHPUTHUSSERY, KUNNUKARA, KUNNKARA VILLAGE, PARAVUR TALUK. 2. BABY, S/O.AUGUSTHY, KELANGAKATHPUTHUSSERY, KUNNUKARA, KUNNUKARA VILLAGE, PARAVUR TALUK. 3. REENA, W/O.THOMAS, KELANGAKATHPUTHUSSERY, KUNNUKARA, KUNNUKARA VILLAGE, PARAVUR TALUK. BY ADV. SRI.RENJITH THAMPAN SRI.T.K.SAJEEV RESPONDENT/APPELLANT/PLAINTIFF. --------------------------------------------------------- VAREETH, S/O.POULO, MADATHUNGAL HOUSE, KUNNUKARA, KUNNUKARA VILLAGE, PARAVUR TALUK. BY SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE, ADV. SRI.K.JAYAKUMAR, SRI.P.B.KRISHNAN. THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09/07/2010, THE COURT ON 21/07/2010 DELIVERED THE FOLLOWING: rs. P.BHAVADASAN, J. ------------------------------------- RSA No.128 of 2006 ------------------------------------- Dated 21st July 2010 Judgment The defendants in OS No.538/00 before the Munsiff's Court, Paravur, who suffered a decree at the hands of the First Appellate Court, are the appellants herein. The parties and facts are hereinafter referred to, as they are available before the Trial Court. 2. According to the plaintiff, he is the absolute owner in possession of plaint A schedule property. Plaint B schedule property is in the ownership and possession of the third defendant. Plaint B schedule property is situated on the eastern side of Plaint A schedule property. There is a PWD Road on the northern side of the plaint schedule property. A pathway begins from that road and runs towards south and then towards east and runs along the northern side of the plaint A schedule property and leads upto the north-eastern end of plaint B schedule property. Further east is a 'thodu'. According to the plaintiff, plaint A RSA 128/06 2 schedule property is at a lower level than the pathway. The pathway is slopping from west to east. As the northern side of the road is at a higher level, during rainy season, water flows from the northern side of the road towards southern side. The plaintiff would claim that in order to avoid stagnation of rain water, a ditch was constructed on the northern side of the pathway mentioned above and that ditch reached the north eastern end of plaint B schedule property. From there, it passes into a common thodu. It is alleged that the ditch actually does not run through the property of the defendants, but through the northern boundary of their property and the ditch has been in existence for a long time. There is no other way through which rain water could be drained out. The plaintiff would assert that the defendants have no right to obstruct the flow of water and have no right over the property through which the ditch runs and the way exists. Apprehending that the defendants may obstruct the flow of water, the suit was laid. RSA 128/06 3 4. The defendants resisted the suit on various grounds. They admitted that there was a pathway as alleged in the plaint. But, according to them, it ends on the north western end of the plaint B schedule property. They disputed that there was a ditch on the northern side of the pathway. According to the defendants, the pathway runs east-west and the property slops from north to south. C schedule property shown as the ditch, is not in existence at all. The defendants pointed out that two weeks prior to the institution of the suit, the plaintiff put up a compound wall with a height of 2 ft on the northern side of plaint A schedule property which separates the plaintiff's property from the pathway. 5. Earlier, rain water used to flow through the property of the plaintiff and used to get drained out into the paddy fields on the southern side. By putting up a boundary wall on the northern side, the flow was blocked. If the claim of the plaintiff is that plaint C schedule ditch is being used by the people of the locality, the defendants pointed out RSA 128/06 4 that the suit must be a representative one. The defendants contended that three other persons in the locality had tried to cut open a ditch through his property in the east-west direction. The defendants filed a complaint before the police. Even thereafter, the highhanded actions continued which resulted in the filing of OS No.521/00 against those persons and as a counter blast, the present suit has been filed. 6. The existence of any ditch through the property of the defendants was refuted by the defendants and it was pointed out that the plaintiff has no manner of right to use any portion of plaint B schedule property. On the above grounds, the defendants prayed for dismissal of the suit. 7. The Trial Court raised necessary issues for consideration. The evidence consists of the testimony of PWs 1 and 2 and documents marked as Exts.A1 and A2 from the side of the plaintiff. The defendants had DWs1 to 3 examined and Exts.B1 and B2 marked. Exts.C1 to C2(a) RSA 128/06 5 are the Commissioner's reports and plan. 8. The Trial Court, on an evaluation of the evidence, found that plaint C schedule ditch is not identifiable and that the claims made in the plaint are not established. It was also found that the plea made by the plaintiff was one for prescriptive right of easement. But, the plaintiff was not willing to concede that the property through which the ditch runs, belonged to the defendants. Therefore, the suit was dismissed. The plaintiff carried the matter in appeal. The Appellate Cort reversed the findings of the Trial Court and decreed the suit. Hence the Second Appeal. 9. The following questions of law are seen raised in the memorandum of Second Appeal. “a) Did not the First Appellate Court commit illegality when it decreed the suit without even a prayer for declaration of right upon the 'C' schedule ? b) Did not the First Appellate Court commit illegality when it passed decree on the basis of RSA 128/06 6 wrong appreciation of the evidence of the commission reports and sketch. c) Did not the First Appellate Court commit illegality when it passed decree on the basis of wrong appreciation of the evidence of the commission reports and sketch. d) Was the first Appellate Court right in finding the prescriptive right to passage of water through the alleged ditch without proving the statutory ingredients of prescriptive easement right ? e) Whether a claim of easement by prescription be granted without clear pleadings and evidence to substantiate the same ? f) Was the First Appellate Court right in passing a decree regarding the alleged 'C' schedule thodu when there was no evidence regarding the identification of the alleged 'C' schedule thodu. g) Was the First Appellate Court right in reversing the finding of the Trial Court without first holding that the finding of the trial court is wrong ?” RSA 128/06 7 10. The learned counsel for the appellants very vehemently contended that the courts below have committed an error in holding that plaint C schedule ditch exists and that the plaintiff had obtained a prescriptive right of easement to use the same. According to the learned counsel, there was no ditch in existence as alleged in the plaint and earlier, water used to flow through the property of the plaintiff and got drained out into the paddy fields on the southern side. The learned counsel contended that at no point of time, the defendants' property was used to drain out rain water as claimed by the plaintiff. At any rate, according to the learned counsel, the only right claimed is prescriptive easement and so long as the plaintiff is not willing to admit the ownership of the defendants of the servient tenement, he cannot succeed. The learned counsel drew attention of this Court to the pleadings in the plaint as well as the evidence of PW1 and contended that the Judgment and decree of the lower Appellate Court is clearly unsustainable in law. RSA 128/06 8 11. Per contra, the learned counsel for the respondent invited attention of this Court to the documents of title of the respective parties. It was pointed out that both the parties got the properties from a common ancestor. The properties were partitioned in the year 1983 and that is evident from Ext.A1 document. The partition deed would clearly show that northern portion of plaint B schedule property is to be retained as a pathway and that portion actually does not belong to the defendants at all. Attention was also drawn to the Commissioner's reports and plan which were marked as Exts.C1 to C2(a). The learned counsel conceded that it may be extremely difficult in the light of the pleadings and evidence adduced in the case to sustain a claim of prescriptive easement right. But, the conduct of the defendants is such that they deserve no leniency. They were fully aware that they were not entitled to any portion of the property on the northern side of plaint B schedule property, shown as item 3 in Ext.C2(a) Commissioner's plan, as envisaged in the partition deed. A RSA 128/06 9 reading of the plaint shows that the claim of the plaintiff is that the rain water flowing from north to south used to get drained out through the ditch, running along the northern side of the property of the defendants. The pleading is to the effect that the portion of the property through which the ditch runs, does not belong to the defendants. The term prescriptive right is used in the plaint only to impress upon the court that for a considerably long period, water used to get drained out into the eastern thodu through the northern side of Plaint B schedule property, the particular portion shown as Item 3 in Ext.C2(a). A reading of the various reports filed by the Commissioner would show that there might have been outlets for rain water to drain out in the property of the defendants. 12. So long as the plaintiff is not willing to admit that the defendants are the owners of the servient tenement, he cannot succeed in a claim for prescriptive easement. It is equally difficult to believe the version given by the defendants that the entire rain water, previous to the RSA 128/06 10 plaintiff's putting up the compound wall, used to get drained out through the property owned and possessed by the plaintiff. 13. One may now, have a look at Ext.C2(a) plan produced by the Commissioner, which is a survey plan. It is clear from a perusal of Ext.C2(a) that excluding the portion shown as Item No.3, the plaintiff had in his possession, an extent of 17.094 cents of land. It is clear that the recital in the partition deed, namely Ext.A1 assumes importance. It is stated therein as follows : ""RoL¾U vñOv]R¢r W]u¨q]RW Rf¢ ka¤ j}t¾]¤ CSÕL¥ W]a¨OÐ qºa] v}f]p]sOç SfLaOU m] kŸ]W vñOv]R¢r vaR¨ Aq]RW WPa] CSÕL¥ W]a¨OÐ vu]pOU നമള RkLfOv]¤ AvWLwRÕŸ]q]¨OÐfOU vu]Rp WPa] KÐLU jUNkWLqR¢r v}fU വസ വ ല  a]pL¢ YfLYfU ചയ RWLSçºfOU a] SfLaOU vu]pOU അടചRWŸOvLRjL faôRÕaO¾OÐf]SjL B¡¨OU Kq] ¨sOU AvWLwo]ലതfOU a] vu] òs¾O CSÕL¥ ന ളള പവ V jÚt]¤ KÐLU jUNkWLqR¢r v}f¾] RSA 128/06 11 sO¥RÕaO¾]R¨LaO¾]q]¨pL¤ ട പവ j]sv]¤ j]rO¾] BhLpU IaO¨OÐf]jOU KÐLU jUNkWLqjO kP¡¹y~LfNÍ|oOºLp]q]¨OÐfOU BWOÐO.'' 14. There is a thodu or canal as the case may be on the eastern side, is a fact not in dispute. If the intention was not to let the plaintiff make use of the portion of that property on the northern side, which was the subject matter of partition, it was unnecessary to reserve the rights as per the document. Of course, as far as the defendants are concerned, they need a reservation as far as the way is concerned because their property lies on the eastern side of item No.1 shown in the Commissioner's report. 15. A reading at the partition deed will show that each of the parties was given only 17.094 cents. True, going by the boundaries, it may extend a little further, but the extent has been very clearly specified in the partition deed. Coming back to Ext.C2(a) report, it may be noticed that even after excluding Item No.3, the defendants have an extent of 17.094 cents with him. That means that Item RSA 128/06 12 No.3 shown in Ext.C2(a) was intended to be excluded even in the partition deed obviously for the reason that that is the only way to drain out water and that is to remain common. In view of the pleadings, the categoric statements in the plaint and also Ext.C2(a), it is evident that Item No.3 is not owned and possessed by the defendants. A careful reading of the Commissioner's report will indicate that there are signs of existence of a ditch in item No.3 of Ext.C1(a). The question that remains to be answered is if that be so, what is the nature of right of the plaintiff as regards the draining out of the rain water that get collected in front of the property. The finding of the lower Appellate Court that the plaintiff is entitled to prescriptive easement right cannot be sustained. However, the lower Appellate Court has not addressed itself regarding the reservation in the partition deed, which has already been referred to in detail in the earlier paragraph. That aspect needs to be considered. It is therefore, necessary to send back the case to the lower Appellate Court for fresh consideration in the light of what RSA 128/06 13 has been stated above. 16. 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 in the light of what has been stated above. The parties shall appear before the lower Appellate Court on 12.08.2010. The court shall make every endeavour to dispose of the appeal within four months from the date of appearance of parties before it. Registry shall return the records forthwith. SD/- P.BHAVADASAN, JUDGE sta True copy PA TO JUDGE RSA 128/06 14