IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 11TH FEBRUARY 2010 / 22ND MAGHA 1931 SA.No. 426 of 1996 ------------------------------- AS.66/1995 of ADDL.SUB COURT, KOCHI OS.651/1991 of PRL.M.C., KOCHI .................... APPELLANT/RESPONDENT/DEFENDANT: PRESIDENT, CHALPURAM PADASEKHARA KARSHAKA SANGHAM, ANDIKKADAVU, P.O.KANDAKKADAVU, KANNAMALI, KOCHI. BY ADV. SRI.N.N.SUGUNAPALAN, SR. RESPONDENT/APPELLANT/PLAINTIFF: P.VASUDEVA NAIK, S/O VENKITESWARA NAIK, DOOR NO.IV/905, NORTH CHERALAYI, KOCHI – 2. ADV. SRI.A.RAMAPRABHU THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.426 of 1996 -------------------------- ORDER Defendant in O.S.No.651/1991 on the file of Principal Munsiff's Court, Kochi is the appellant. Respondent is the plaintiff. Respondent instituted the suit seeking a decree for declaration that he is entitled to construct a granite bund with an opening or sluice having a width of five feet, corresponding to the sluice on the Pandikudy-Chellanam Road, to the properties of the appellant Padasekharam Committee and for a permanent prohibitory injunction restraining appellant from causing any obstruction to the construction. 2. Plaint schedule property is 5.52 acres in Sy. Nos.1757, 305/1 and 304/1 of Kumbalangi village. They originally belonged to Thirumala Devaswom. Under Exhibit A1, plaint schedule property was purchased by the respondent. At the time when there was a proposal for sale, O.S.No.99/1975 was instituted by two persons, being the President and Secretary of Anthikadavu Palappuram Padasekharam Committee, contending that if SA 426/96 2 the properties are allowed to be sold by the Devaswom, it would affect their rights for prawn fishing and claiming that, plaint schedule property cannot be sold by the Devaswom. Devaswom filed Exhibit B1 written statement admitting that a portion of the plaint schedule property is being used for letting water to western fields and there is a sluice having a width of 20 feet through which water used to be let out and let in and tenants of the fields on the western side have a right to use the chal only to a width of 20 feet and the Devaswom do not want to obstruct the said right. The suit was dismissed under Exhibit A3 judgment finding that as the property belonged to Devaswom, no decree for injunction could be granted restraining Devaswom from assigning the property, but clarifying that any assignment could only be subject to the easement rights available to the Padasekharam Committee. After Exhibit A1 assignment deed, this suit was instituted contending that spending lakhs of rupees a granite bund was constructed, but appellant is not permitting construction of bund on the disputed portion and respondent is prepared to provide a sluice having a SA 426/96 3 width of five feet, so as to allow free flow of water and appellant is not entitled to cause any obstruction to the construction of the bund and therefore, sought a decree. 3. Appellant resisted the suit contending that plaint schedule property is unfit for paddy cultivation and the plaint schedule property is used for free flow of water to the western paddy fields and Kochi Thirumala Devaswom was never causing any obstruction to the free flow of water and the appellant has a right to get free flow of water through the plaint schedule property and when the assignor of the respondent admitted in Exhibit B1 written statement that they will not cause any obstruction to the free flow of water by constructing a granite bund, the assignee is not entitled to cause any obstruction and therefore, the suit is only to be dismissed. 4. Learned Munsiff, on the evidence of PWs 1 to 3, DWs 1 to 3, Exhibits A1 to A3 and B1 and B2, dismissed the suit. Respondent challenged the judgment before Sub Court, Kochi in A.S.No.66/1995. Learned Sub Judge, on re-appreciation of the evidence, SA 426/96 4 partly allowed the appeal and declared that respondent is entitled to construct a granite bund on the eastern boundary of the plaint schedule property providing a sluice having a width of not less than ten feet. Appellant was restrained by a permanent prohibitory injunction from causing any obstruction for such construction. Second appeal is filed challenging the said judgment. 5. Second appeal was admitted formulating the following substantial questions of law: 1. Whether the documents produced by the plaintiff along with the suit are part of the pleadings. If so, whether defendant need to prove further the same facts brought out by the evidence of the plaintiff? 2. Whether an assignee of a property is bound by the recitals in the document as to the right of easement enjoyed by a third party. If so, whether a suit is maintainable against such recital in the document? 3. Whether the lower appellate court was justified in fixing the width of a water chal without any legal evidence? 4. Whether a declaration in a suit is not necessary to oppose a prayer for injunction, in a suit by way of defence on the basis of easement right? SA 426/96 5 6. Learned senior counsel appearing for the appellant was heard. 7. Learned senior counsel pointed out that respondent purchased the rights of Devaswom under Exhibit A1 subject to the right of easement available to the appellant, as is clear from the recital in Exhibit A1. It was also pointed out that before execution of Exhibit A1 sale deed, O.S.No.99/1975 was filed before Munsiff's Court, Kochi challenging the right of the Devaswom to transfer the property raising a contention that the sale would affect the right to have free flow of water to the paddy fields. Exhibit B1 written statement filed by the Devaswom conclusively establishes that the assignor under Exhibit A1 admitted the right of easement, in respect of free flow of water to the paddy fields towards the western boundary of the plaint schedule property to a width of twenty feet and when the admission in the written statement filed by the assignor of the respondent is binding on the respondent, learned Sub Judge was not justified in granting a decree reducing free flow of water to a width of ten feet. It is argued that the plaint SA 426/96 6 schedule property was being used for the free flow of water to the paddy fields towards west and when Exhibit A3 judgment, produced by the respondent, establishes that though the suit was dismissed, it was made clear that the right that could be obtained by any assignee from the Devaswom is only subject to the right of easement available to the Padasekharam Committee, the decree granted by the first appellate court is not sustainable. 8. Plaint schedule property was admittedly purchased by the respondent under Exhibit A1 sale deed dated 12.3.1981. There was a bund separating the plaint schedule property from the western paddy fields even previously, with sluices for free flow of water from east to west as well as vis-vis. The bund was subsequently converted into a public road. It is also the common case that a culvert was constructed by the Government in the PWD road providing sluices for free flow of water towards west. As rightly found by the first appellate court, respondent, as the owner of the plaint schedule property, is entitled to put up a granite bund on the eastern boundary of the plaint SA 426/96 7 schedule property. At the very same time, respondent is not entitled to construct a bund causing obstruction to the right of easement, if any, available to the appellant. 9. Even though respondent disputed the right of easement available to the appellant and expressed his willingness to provide a sluice having a width of five feet, Exhibit A3 judgment establishes that even though the suit filed against the Devaswom to restrain from transferring the plaint schedule property was dismissed, it was specifically provided in Exhibit A3 judgment that what could be transferred by the Devaswom is only their right subject to the right of easement available to the tenants in possession of the property, which lies to the west of the plaint schedule property. Exhibit B1 written statement filed by the Devaswom unambiguously establishes that Devaswom admitted the right of easement available to the tenants to have free flow of water to a width of twenty feet. 10. The relevant recitals in Exhibit B1 reads: “The entire chal was not used for letting out water. There is a sluice which has a width of about twenty SA 426/96 8 feet. The water used to be let out and let in through this sluice. The tenants have a right to use the chal only to a width of twenty feet and not more.” It is also pleaded in the written statement that “the Devaswom wanted to sell the chal to the highest offerer. The defendant has a right to do so. But, by this, the defendant does not want to obstruct the right of the tenants to use the chal for letting in and letting out water”. Therefore, Exhibit B1 written statement shows two things. Firstly, it shows that there is a sluice with a width of above twenty feet, through which, water is used to be let in and let out and the right to let the water out and in through the sluice is a right of easement available to the tenants. The other is that sale of the plaint schedule property is only subject to the said right of the tenants, agreeing that the assignee cannot obstruct that right. 11. The relevant recitals in Exhibit A1 also show that under the said document, the right of the Devaswom was assigned to the respondent subject to the right of the tenants to take water through the sluice. It also provides that respondent/assignee shall never cause any SA 426/96 9 obstruction to the said rights of the tenants. Therefore, Exhibit A1 with Exhibit B1 establish that the right which was reserved in Exhibit A1, specifically providing that, that right shall not be obstructed by the respondent, in respect of a sluice having a width of twenty feet. In such circumstances, the question is whether first appellate court was justified in reducing the width of the sluice to ten feet, while permitting construction of a granite bund. 12. The judgment of the first appellate court shows that the width of ten feet for the sluice was fixed for the reason that the sluice provided in the culvert is only having a width of eight feet. As rightly pointed out by the learned senior counsel, the width of the chal in the plaint schedule property, which is to be left open, is not for the purpose of enabling free flow of water along the sluice alone. The width of the plaint schedule property, which shall be left open, must be much larger than the width of the sluice provided in the culvert. It could only be for that reason even in Exhibit B1 written statement, the assignor under Exhibit A1 admitted that the tenants on SA 426/96 10 the western side of the plaint schedule property have a right of free flow of water to a width of twenty feet. Unfortunately, this aspect was omitted to be taken note of by the learned Sub Judge. In such circumstances, it is necessary to modify the judgment of the first appellate court providing that the sluice to be provided, while constructing a granite bund on the eastern boundary of the plaint schedule property, shall not be ten feet as stated in the decree and judgment, but, the width shall not be less than twenty feet as admitted in Exhibit B1 written statement. Appeal is, therefore, to be allowed to that extent. Appeal is allowed. The judgment and decree in A.S. No.66/1995 on the file of Additional Sub Court, Kochi is modified as follows: The right of the respondent/plaintiff to construct a granite bund on the eastern boundary of the plaint schedule property, providing a sluice having a width of not less than twenty feet, is declared. Appellant/ defendant is restrained by a permanent prohibitory injunction from causing any obstruction to the construction of such granite bund, if the sluice is SA 426/96 11 having a width of not less than twenty feet. It is also made clear that respondent shall not cause any obstruction to the free flow of water to the western padasekharam or to the discharge of water from the padasekharam through the said sluice. There shall not be any reduction in the quantity of water, which the padasekharam should receive from the kayal through the plaint schedule property. 11th February, 2010 (M.Sasidharan Nambiar, Judge) tkv SA 426/96 12 M.Sasidharan Nambiar, J. -------------------------- S.A.No.426 of 1996 -------------------------- JUDGMENT 11th February, 2010